By David Ferguson
The Arkansas General Assembly is scheduled to reconvene on September 29 primarily to set the boundaries of Arkansas’ four congressional districts. The Arkansas Democrat-Gazette said Senate President Pro Tempore Jimmy Hickey is anticipating and hoping that the extended session meets three days and then the Legislature adjourns its regular session.[i] But the legislature authorized consideration of more issues.
A short one-issue session is not what many citizens are expecting. State Senators and Representatives have been hearing from constituents who want the legislature to address additional issues in the extended session. The question is: What issues besides congressional redistricting may be considered?
The General Assembly will pass new boundaries for Arkansas’ four congressional districts. What else can they and will they do?
The extended session is not an opportunity to consider any and all issues. In determining what may be considered in the extended session the General Assembly must abide by its extension resolution (HCR1015) .
Consideration of COVID-19 related legislation has been approved by HCR1015. The hottest COVID-19 topic right now is mandatory COVID-19 vaccinations. There also has been some discussion about refining the ban on mask mandates. Other COVID-19 legislation may be on the minds of legislators.
Another much talked about topic is a ban on teaching of Critical Race Theory. That topic is not included in HCR1015 and passage of such legislation in the extended session would likely be invalid.
Some people have suggested the legislature should not consider any issue other than congressional redistricting to avoid the possibility of a bill being passed outside the scope of the extended session. The fear being that the passage of even one bill on a subject not allowed might invalidate all legislation passed in the extended session, including the vital congressional redistricting legislation. That simply is not how it works. Each Act stands on its own, Congressional redistricting will not in danger because of consideration of other issues. There is Arkansas Supreme Court precedent to support this view. In 1980 the Arkansas Supreme Court upheld legislation in an extended session concerning property tax despite all other legislation passed in the extended session being outside the scope of an extended session and invalid.
GETTING INTO MORE DETAIL
Ban on Critical Race Theory? NO. The resolution for the extended session does not include CRT in the list of permissible items. The General Assembly does not have the authority for an open-ended extended session including issues not in the extension resolution.[ii]
Mask mandate ban and a response to mandatory COVID-19 vaccinations? YES. The extension resolution passed by the legislature (HCR1015) specifically authorizes consideration of “legislation related to the COVID-19 public health emergency”.
Supporters of mask mandates and mandatory vaccinations might try to claim the words “public health emergency” limits the subject to only responses to the Governor’s declared emergency and therefore is no longer relevant. But that argument does not work. The term does not reference the Governor’s declaration of an emergency and therefore is a much broader term. “COVID-19 public health emergency” must be interpreted broadly to refer to the COVID-19 pandemic and that pandemic is ongoing.
Note: When HCR1015 was filed (3/19/2021) there was already an expectation that the Governor’s emergency proclamation would expire soon. The legislature had already sent legislation to the Governor limiting his ability to extend his emergency proclamation and that legislation was signed as Act 403 on the same day as HCR1015 was filed.
What is the full list of issues authorized to be considered in the extended session? Here is the list in HCR1015:
(g) THAT the President Pro Tempore of the Senate and the Speaker of the House of Representatives may, by joint proclamation:
(1) Reconvene the General Assembly at any time for the purpose of:
(A) Considering vetoes;
(B) Correcting errors and oversights;
(C) Completing its work on congressional redistricting;
(D) Considering legislation related to the COVID-19 public health emergency and distribution of COVID-19 relief funds; and
(E) Considering the need for further extension of the Regular Session of the Ninety-Third General Assembly; or
(2) Adjourn sine die the Regular Session of the Ninety-Third General Assembly;
May the leader of the Senate and leader of the House of Representatives exclude COVID related issues in their proclamation for reconvening? NO. The President Pro Tempore of the Senate and the Speaker of the House of Representatives have the authority to reconvene the General Assembly but do not have the authority to pick which issues may be considered. The list of authorized issues is not a buffet from which they may pick and choose. The list is tied together with the word “and” which means once they reconvene the legislature all items on the list are up for consideration.
Does it take a 2/3rds vote to consider COVID related issues in the extended session? NO. COVID related bills do not require approval prior to introduction. To pass a bill on the subject requires only a majority vote, however, to make such legislation immediately effective requires an emergency clause which requires a 2/3rds vote of each chamber. If an emergency clause does not pass, then the legislation becomes effective on the 91st day after sine die adjournment of the General Assembly. (The Republican Party has a supermajority in both the Senate and House of Representatives.)
If a bill is passed on an issue not on the list authorized in HCR1015 would passing that legislation jeopardize the validity of the legislation on the redistricting of congressional districts? NO. Although legislation on an issue not on the list would likely be found invalid, the redistricting legislation would not be in jeopardy. We have a precedent in the Arkansas Supreme Court case Wells v. Riviere, 269 Ark. 156. In that case the General Assembly went into an open-ended extended session to consider any issue on any subject almost a year later. The court said the open-ended extension was impermissible. While many laws were invalidated by Wells v. Reviere the court did not invalidate everything. It let stand a proposed constitutional amendment on property taxes passed in the extended session. In other words, the invalidity of other laws did not have a negative impact on the property tax amendment which stood on its own.
In addition, in dicta the court noted there would have been no question about consideration of the list of issues authorized in the extension resolution (Resolution 91 of 1979) for a potential reconvening in May 1979. But the legislature did not meet then.[iii]
Will the Republican majority General Assembly debate legislation on anything other than congressional redistricting? What they can do and will do are different things. We will just have to wait and see. September 29 is just around the corner.
David Ferguson is an attorney and former Director of the Bureau of Legislative Research having had a career of writing legislation for members of the General Assembly for over thirty-two years.
[i] Return of lawmakers on tap for redistricting, Arkansas Democrat-Gazette, 9/8/2021
[ii] Wells v. Riviere, 269 Ark. 156 limits the General Assembly’s authority over extended sessions.
[iii] “We do not have the question before us of whether it would have been lawful for the legislature to meet in May, 1979, as it proposed, and consider legislation or matters that were set out in detail in Resolution 91. The facts would support such action by the General Assembly.”
List of items authorized for consideration in Resolution 91 had the legislature met in May 1979.
Any session reconvened pursuant to this Section 3 shall be for the sole purpose of:
(1) correcting errors going to the validity of bills passed prior to the recess,
(2) appropriate action on fiscal matters including but not limited to appropriation bills, revenue bills, purchasing and accounting procedures, and revenue classification and allocation,
(3) reconsideration of bills or parts of bills disapproved by the Governor,
(4) referral of matters to standing, select, or special committees or to the Joint Interim Committees for action or study, or
(5) matters of rules and procedures.