Is The Legislature’s Petition Restriction Constitutional?
By David Ferguson
This year the Arkansas General Assembly passed Act 236 concerning petitions submitted by the people to get an issue on the ballot. The act says petitions must be filed from “at least“ 50 of Arkansas’ 75 counties and each must contain a specific percentage of the required number of signatures.
State Senator Bryan King (R-Green Forest) and the Arkansas chapter of the League of Women Voters filed a lawsuit seeking to declare the act unconstitutional. The question is whether the act conflicts with the Arkansas Constitution which says:
“Upon all initiative or referendum petitions provided for in any of the sections of this article, it shall be necessary to file from at least fifteen of the counties of the State, petitions bearing the signature of not less than one-half of the designated percentage of the electors of such county.”[i]
Basically, here are the positions of the two sides. Legislators defending the act would argue when the Arkansas Constitution says “at least fifteen” counties it means the number of counties cannot be set lower than fifteen but does not preclude the legislature from setting the minimum higher. The plaintiffs would say the words “at least fifteen” counties is the standard set by the Constitution and the legislature does not have the power to increase the minimum number of counties.
The current lawsuit might be thrown out on technical grounds, but if so, there will be other lawsuits filed by groups trying to get an initiative or referendum on the ballot.
Although I have sympathy for legislators who want to make it harder to get an issue on the ballot, when I look at other places in the Constitution where the words “at least” are used, I think a decision upholding Act 236 would result in irrational results.
The Arkansas Constitution uses the words “at least” quite a few times. Many of the instances have to do with age qualifications. Let’s look at a few examples of how some of the provisions in the Constitution could be dramatically changed if the argument for Act 236 were to be accepted.
- “Senators shall be at least twenty-five years of age, and Representatives at least twenty-one years of age.” [ii] Let’s say an incumbent Senator found out he was going to be challenged by a popular twenty-five-year-old and wanted to stop the candidate, then the argument used for Act 236 would also mean the Senator could get a bill passed to raise the minimum age to be a senator to at least thirty years of age and thereby stop the potential opponent.
- “Except as otherwise provided by this Constitution, any person may vote in an election in this state who is: (1) A citizen of the United States; (2) A resident of the State of Arkansas; (3) At least eighteen (18) years of age; and (4) Lawfully registered to vote in the election.”[iii] If legislators decided they didn’t like the way people 18 through 20 years of age vote, then under the argument for Act 236 the legislature could pass a law to raise the voting age to 21 for state and local elections, even though younger voters could still vote in federal elections.
- There are seven justices of the Arkansas Supreme Court. The Constitution says: “The concurrence of at least four justices shall be required for a decision in all cases.”[iv] Using the legislature’s argument, if voting blocks in the Supreme Court were such that it produced a lot of 4-3 decisions the legislature did not like, then under the argument for Act 236 the legislature could pass a law saying all Supreme Court decisions must have at least five concurrences or even require all seven to approve any decision.
- Concerning the reassessment of property for the purpose of applying the property tax the Constitution says: “The General Assembly may, by law, prescribe the method and means for reassessing real property and establish the frequency of reassessment. However, reassessment shall occur at least once every five (5) years.”[v] Again, under the argument for Act 236, the legislature could increase the period so that the reassessment only has to happen every ten, twenty or thirty years. While that would make most property owners very happy, it clearly conflicts with the reason for setting the five-year rule.
While I don’t think any of these examples would happen, they are useful in showing how dramatically the legislature could alter the Constitution if the words “at least” were an open invitation to the legislature to put in higher numbers than stated in the Constitution.
Without the existence of a very convincing precedent, I assume the court will declare petitions from fifteen counties to be the requirement set by the Constitution and Act 236 to be unconstitutional.
By the way, Act 236 (filed as HB1419) is the legislature’s attempt at a hail Mary pass. Previously, the legislature proposed an amendment to the Constitution to increase the number of counties from 15 to 45, but the people voted it down in 2020. Having failed with that attempt it was decide to see the legislature could bypass the people and change the number of counties with a mere statute.
David Ferguson is a former Director of Arkansas’ Bureau of Legislative Research, having a thirty-two-year career as an attorney for the Arkansas legislature. After retirement from state service, his primary focus has been beef cattle farming. He is also a former officer of Conduit for Action.
[i] Arkansas Constitution, Article 5, Section 1
[ii] Arkansas Constitution, Article 5, Section 4
[iii] Arkansas Constitution, Article 3, Section 1
[iv] Arkansas Constitution, Amendment 80, Section 2
[v] Arkansas Constitution Amendment 79, Section 4
