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Constitutional Amendments on Your Ballot

Conduit reviewed the four proposed amendments to the Arkansas Constitution that will be on your Arkansas general election ballot. Issues 1 through 3 were proposed by the Arkansas General Assembly and Issue 4 was put on the ballot by initiative petition.

We do not recommend any of the four ballot issues. This is hard because we really wanted to be for Issue 3 but could not overcome concerns that in some instances it might have the opposite effect from what is intended. Our reaction to the other three ballot issues ranged from “Issue 1 is useless so why add it to the Constitution” to a hard “no” on Issues 2 and 4.

ISSUE 1: Allowing the General Assembly to call itself into a special session by a proclamation signed by at least 2/3 of the members of the House of Representatives and at least 2/3 of the members of the Senate.

Conduit’s position on Issue 1 – Vote No.

Issue 1 is much ado about nothing. It would add a provision to the Arkansas Constitution that realistically would never be used.

Politically, the legislature calling itself into special session won’t happen because Governors are too strong. The Arkansas Governor is stronger than ever because government is bigger than ever, the Governor’s spending powers have increased, and the Governor has power over many appointments, hirings, grants, and state agency policy. Legislators want to stay on the good side of a Governor to be able to influence those decisions and legislators don’t want a Governor targeting them in the next election for defeat.

The legislature is never more than a few months away from being able to bring up its own issues.  Every odd numbered year they are in regular session and every even numbered year they are in fiscal session where using the same 2/3rds requirement for nonbudget items can be introduced. The 2/3rds threshold in fiscal sessions has proven to be incredibly difficult to exercise. First because they don’t want to buck the Governor and second, they don’t want to get into controversial issues right before the primary elections.

The legislature already has the power to extend a special session called by the Governor and then take up any issues it wishes. To do so, the same 2/3rd threshold is required. However, the legislature has NEVER exercised the power. When some legislators wanted to extend a 2020 special session the legislature quickly adjourned to avoid even a vote on extension. For some legislators it was simply a matter of whether the Governor supported the extension. Obviously, a Governor would never support the legislature extending a special session because if the Governor supported passage of the issue or issues to be considered, the Governor would have simply amended the Governor’s call to include the issue or issues.

Similarly, no Governor would support the legislature exercising the power to call itself into special session. Why? Because if the Governor had supported consideration of the issues legislators wanted to address, the Governor have could easily have called a special session over which the Governor has control.

Again Issue 1 is much ado about something that will never be used. The Arkansas Constitution has already been amended 102 times, so why clutter up the constitution more with this do-nothing amendment?

ISSUE 2. Requiring 60% voter approval for passage of Constitutional Amendments proposed by the legislature or by the people and for passage of citizen-proposed state laws.

Conduit’s Position on Issue 2 – Vote No.

Issue 2 is a double-edged sword. Maybe it would stop a few proposals we don’t like, but on the other hand there have been some very important citizen-initiated proposals restricting the legislature that would have never been passed by the legislature. (For example, the ethics and lobbyist act and the ethics commission act both initiated by the people.) We don’t think it should be harder for Arkansas citizens to pass legislation.

The current requirement of a majority vote is sufficient.

It is claimed that raising the threshold to 60% would help fight against the effect of big money coming into Arkansas to pass or oppose constitutional amendments or laws initiated by the people. If anything, raising the threshold would give big money politics even more of an advantage over passing or defeating proposed amendments and laws.

As mentioned above, the Arkansas Constitution has been amended 102 times, but that large number is not because amendments may pass with only a majority vote. It is because the legislature can propose three amendments every two years and that is too many. If you want to reform the process of amending the constitution, reduce the number of amendments the legislature can propose to one and require the legislature’s proposal to meet the same rigid standards of clarity required of citizen-initiated proposals.

ISSUE 3. Known as the “Arkansas Religious Freedom Amendment” the proposal would prohibit Arkansas and local governments from burdening the practice of religion in Arkansas unless the government shows there’s a compelling reason to do so and acts in the least restrictive way.

Conduit’s Position on Issue 3 – Vote “No” and wait for a better amendment in the future.

We very much wanted to be “for” this amendment, but we cannot because of concerns that instead of further protecting our religious freedoms from the courts, the wording may weaken the protection of our religious freedom at least in some instances.

The amendment tries to deal with crazy court decisions with new standards, however the Arkansas Constitution already has a religious freedom provision and it is a stronger statement than the one in this proposal. Arkansas Constitution Article 2, § 24 says:

24. Religious liberty.

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect, or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other. (emphasis added)

The Arkansas Constitution proclaims the people have “a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences ” and declares “No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience.” Those are far stronger statements than the proposed change to the Arkansas Constitution, which would say it is okay for government to burden your practice of religion if it has a compelling reason and did it in the least restrictive way to accomplish its purposes.

Issue 3 tries to deal with the conflict with Article 2, § 24 by saying this amendment shall not be construed to affect, interpret, or in any way address Article 2, § 24 concerning religious liberty, but we do not see how the different standard can be reconciled and therefor fear Issue 3 will undermine the current Arkansas Constitution.

Issue 3 has a good goal. If the constitution is to be amended we think more work needs to be done and perhaps a stronger and tigher would could be proposed in 2024. We think the best route is to avoid watering down the constitution with an amendment and instead encourage the legislature to strengthen the current state statute on protecting religious. That way the constitution will always have a strong religious liberty statement, while practical court issues can be adjusted in the statute to meet any court ruling, whether the court moves to the left or the right.

ISSUE 4. The proposal would make recreational marijuana legal in Arkansas. It would allow the possession of one ounce of marijuana for recreational use legal under Arkansas state law for adults. It would allow medical marijuana cardholders to purchase non-medical marijuana without it counting toward how much they can purchase for medical purposes. Neither the recreational marijuana proposal or the medical marijuana law affect the illegality under federal law.

Conduit’s Position on Issue 4. Vote No.

As Sarah Huckabee Sanders, the Republican nominee for Governor, said, “I don’t think that with the drug epidemic that we have across this state, frankly across the country, that adding and giving more access to that does anything to benefit Arkansas, so I certainly wouldn’t be supportive of that.”

Even if you favor recreational marijuana this is not the amendment for you. It is designed to make a few rich backers of the amendment even richer by cornering the market in growing and selling marijuana.

Early voting begins Monday, October 24 and Election Day is Tuesday, November 8, 2022.

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