IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS FIFTH DIVISION COMMITTEE TO RESTORE ARKANSANS RIGHTS

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1 IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS FIFTH DIVISION ELECTRONICALLY FILED Pulaski County Circuit Court Larry Crane, Circuit/County Clerk 2018-May-17 11:07:48 60CV C06D05 : 8 Pages COMMITTEE TO RESTORE ARKANSANS RIGHTS PETITIONER VS. CASE NO. 60CV LESLIE RUTLEDGE, in her capacity as Attorney General for the State of Arkansas RESPONDENT DRIVING ARKANSAS FORWARD INTERVENOR-PETITIONER HEARING BRIEF Petitioner, Committee to Restore Arkansans Rights, and Intervenor-Petitioner, Driving Arkansas Forward (collectively Petitioners ), by and through their attorneys, Steel, Wright, Gray & Hutchinson, PLLC, submit this Brief for the May 18, 2018 hearing. I. INTRODUCTION Arkansans are experiencing a constitutional crisis. In Article 5, Section 1 of the Arkansas Constitution, the people reserve the power to propose legislative measures, laws, and constitutional amendments and prohibit the General Assembly from enacting legislation that restricts, hampers, or impairs this right. The General Assembly passed Act 208 of ( Act 208 ) that authorized the Attorney General to reject proposed ballot measures. Act 208 only results in rejections of proposed ballot measures and always restricts, hampers, and impairs the constitutionally-protected right of the people to propose ballot measures. Act 208 directly contradicts Article 5, Section 1 of the Arkansas Constitution and is unconstitutional. Since the 2016 General Election, the Attorney General has used Act 208 to unconstitutionally reject 70 out of 70 proposed ballot measures. 1 Ark. Code Ann (c)

2 II. LEGAL DISCUSSION A. Act 208 Is Unconstitutional on Its Face. Every act carries a strong presumption of constitutionality. Bd. of Trs. of Univ. of Ark. v. Andrews, 2018 Ark. 12 at *9. As the party challenging the legislation, it is Petitioners burden to prove its unconstitutionality, and all doubts will be resolved in favor of the statute s constitutionality, if it is possible to do so. Id.An act will be struck down only when there is a clear incompatibility between the act and the constitution. Id. i. People s right to propose constitutional amendments Article 5, Section 1 of the Arkansas Constitution provides: The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option to approve or reject at the polls any entire act or any item of an appropriation bill.... No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people. (Emphases added). Article 5, Section 1 further provides that the Supreme Court of the State has original and exclusive jurisdiction over challenges to the sufficiency of all state-wide petitions. The process for proposing ballot measures set forth in the Arkansas Constitution provides for a role played by the State Board of Election Commissioners (certification of petition to be circulated containing ballot title), Secretary of State (sufficiency of the circulated petitions), and Supreme Court (review of Secretary of State s certification of circulated petitions and ballot title). The Arkansas Constitution does not grant any authority to the Attorney General regarding proposed ballot measures. 2

3 ii. History of Act 195 of 1943, codified at Ark. Code Ann (a), (b), and (d) Act 195 of 1943 ( Act 195 ) codified into law what is now Ark. Code Ann (a), (b), and (d). Ark. Code Ann (a) provides that [b]efore any initiative or referendum petition ordering a vote upon any amendment or act shall be circulated for obtaining signatures of petitioners, the sponsors shall submit the original draft to the Attorney General, with a proposed legislative or ballot title and popular name. Ark. Code Ann (b) provides that [w]ithin ten (10) days, the Attorney General shall approve and certify or shall substitute and certify a more suitable and correct ballot title and popular name for each amendment or act. The ballot title so submitted or supplied by the Attorney General shall briefly and concisely state the purpose of the proposed measure. Ark. Code Ann (d) provides that [i]f the Attorney General refuses to act or if the sponsors feel aggrieved at the Attorney General s acts in such premises, the sponsors may, by petition, apply to the Supreme Court for proper relief. Thus, prior to the adoption of Act 208 in 1977, the Attorney General was required to approve or substitute and certify ballot titles and popular names for proposed ballot measures there was no mechanism for the Attorney General to delay the process by simply rejecting constitutional initiatives. The constitutionality of Act 195 was challenged and upheld in Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956). In Washburn, a sponsor submitted text of a proposed amendment but failed to submit a popular name and ballot title and, as a result, the Secretary of State refused to certify the proposed constitutional amendment because it did not comply with Act 195. The Supreme Court agreed with the Secretary of State s refusal to certify for failure to comply with Act 195 and stated that [t]his statute in no way curtails the operation of Amendment No. 7 but is in aid of the amendment and [e]nsures the giving to the signer of the 3

4 petition as much information as is possible and practicable with regard to what he is being asked to sign. The Supreme Court further stated: There is nothing complicated about Act 195; it is not difficult to follow; it is not calculated to make troublesome the right to take advantage of the [Initiative] and [Referendum] Amendment. It goes without saying that before any one could safely undertake to refer a measure to the people it would be necessary to review the Constitution and the Statutes pertaining to such referendum. It would be very easy to say to the Attorney General: Now here is what we propose as a ballot title and this is what we propose as a popular name. And the Attorney General would be required to either approve that which had been submitted or substitute something else. If the sponsors should feel aggrieved at his acts, they would have the right to apply to the Supreme Court for proper relief. This is not a contest between the Attorney General and the sponsors of the referendum petition. It must be remembered that [the sponsors], who we presume are the intervenors here, have some rights in the matter. If the Attorney General approved a ballot title and popular name that was calculated to be misleading or not suitable to the question to be voted on, there would be a remedy in the courts. Washburn, 225 Ark. at , 286 S.W.2d at (emphases added). In contrast to Washburn, and as explained further below, the Attorney General s utilization of Act 208 to unconstitutionally reject 70 out of 70 proposed ballot measures demonstrates that unlike Act 195, Act 208 does not aid Amendment 7. Directly to the contrary, Act 208 operates in all cases to impair, restrict, and hamper the people s right to propose ballot measures under Article 5, Section 1 of the Arkansas Constitution. As previously noted, Act 208 only results in rejections of proposed ballot measures and always restricts, hampers, and impairs the right of the people. iii. History of Act 208 of 1977, codified at Ark. Code Ann (c) Act 208 of 1977 codified what is now Ark. Code Ann (c). Section (c) provides that if the Attorney General determines that the ballot title is presented in such manner that the ballot title would be (1) misleading or (2) designed in such manner that a vote FOR the issue would be a vote against the matter or viewpoint that the voter believes himself or herself 4

5 casting a vote for, or, conversely, that a vote AGAINST an issue would be a vote for a viewpoint that the voter is against, then the Attorney General may reject the entire ballot title, popular name, and petition and state her reasons therefor and instruct the petitioners to redesign the proposed measure and the ballot title and popular name in a manner that would not be misleading. Act 208 only results in a rejection that violates Article 5, Section 1 s prohibition on legislation that restrict[s], hamper[s] or impair[s] the exercise of the rights herein reserved to the people. Further, Act 208 turns the submission of a proposed popular name, ballot title, and text into a contest between the Attorney General and the sponsors of proposed ballot measures. Act 208 violates Article 5, Section 1 of the Arkansas Constitution and is therefore facially unconstitutional. Further, Article 5, Section 1 provides the Supreme Court original and exclusive jurisdiction over challenges to the sufficiency of all state-wide petitions. As noted in Washburn, [i]f the Attorney General approved a ballot title and popular name that was calculated to be misleading or not suitable to the question to be voted on, there would be a remedy in the courts. The Attorney General has no constitutional authority to be the sole judge and jury with respect to proposed ballot measures. Washburn stated that because Act 195 results in an approval and certification, Act 195 aids the voters. Act 208 does the opposite. Act 208 restricts, impairs, and hampers the people s right to propose ballot measures and is unconstitutional. Notably, the Attorney General has previously argued that her review of ballot proposals is unquestionably a discretionary process and that Act 208 places no boundaries on that discretion. See Petitioner s Amended Complaint at 13 14; see also Intervenor-Petitioner s Complaint at 16. The Attorney General argues that Petitioners have no right to challenge her rejection of proposed constitutional amendments under Act 208, and the only option is to 5

6 resubmit rejected proposed constitutional amendment for the Attorney General s absolute discretionary review. Id. If, however, the Attorney General now reverses her argument and asserts that Petitioners have a right to petition the Supreme Court if rejected under Act 208, the requirement that a sponsor must pay a filing fee, petition the Supreme Court, and bear the burden of proving that the Attorney General incorrectly rejected a proposed ballot measure, is a process that inherently restricts, hampers, and impairs the people s right to get proposed measures on the ballot. At a minimum, shifting the burden of proof to the sponsor of a proposed measure is an impairment. See Parker v. Priest,326 Ark. 386, 389, 931 S.W.2d 108, 109 (1996) ( The party challenging the ballot title has the burden of proving that it is misleading or insufficient. ). In sum, Act 208 only results in rejections of proposed ballot measures and always restricts, hampers, and impairs the right of the people to propose ballot measures. Act 208 directly contradicts the plain language of Article 5, Section 1 prohibiting legislation that restricts, hampers, and impairs the people s right to propose ballot measures and is therefore unconstitutional. See Andrews, 2018 Ark. 12 at *10 (interpreting constitutional provision precisely as it reads ). B. The Attorney General s Application of Act 208 is Unconstitutional. As previously noted, the Attorney General has utilized Act 208 to unconstitutionally reject 70 out of 70 proposed ballot measures since the 2016 General Election. Through her statements to the media, the Attorney General has confirmed that she has unilaterally created a heightened standard to review proposed ballot measures, which is entirely inconsistent with 6

7 Article 5, Section 1 of the Arkansas Constitution. 2 This heightened standard is found nowhere in law and has yet to be articulated by the Attorney General. Accordingly, even if Act 208 was intended to aid the people in proposing ballot measures consistent with Article 5, Section 1 of the Arkansas Constitution, the Attorney General has perverted this measure to block that right, and therefore applied it unconstitutionally. The Attorney General has rejected proposed ballot measures (i) that are virtually identical to those previously approved by the Attorney General, (ii) that she could easily rewrite and certify, and (iii) that have complied with her objections only to be rejected for different reasons after doing what the Attorney General recommended. Here, Petitioners have submitted seven (7) proposed ballot measures, and the Attorney General has rejected each submission. As a result, the Petitioners will suffer a significant burden just to obtain the requisite signatures prior to the July 6, 2018 deadline. The Attorney General s actions have unconstitutionally restricted, hampered, and impaired the people s right to propose measures to be placed on the ballot and, absent court intervention, Petitioners will continue to suffer irreparable harm as a result of her actions. DATED THIS 17TH DAY OF MAY, 2018 STEEL, WRIGHT, GRAY & HUTCHINSON, PLLC 400 W. Capitol Ave., Suite 2910 Little Rock, Arkansas alex@swghfirm.com nate@swghfirm.com 2 In recent years, the Arkansas Supreme Court has set a very high standard for certifying a ballot proposal. As Attorney General, I have a responsibility to follow those standards to ensure that the voters fully understand the issue presented on the ballot and what exactly a for or against vote means. Attorney General Leslie Rutledge to the Arkansas Democrat-Gazette, April 17,

8 By:/s/ Alex T. Gray Alex T. Gray, Ark. Bar No Nate Steel, Ark. Bar No Attorneys for Petitioners CERTIFICATE OF SERVICE I, Alex T. Gray, do hereby certify that a true and correct copy of the foregoing was served on all counsel of record via the Court s electronic filing system and via , this 17th day of May, 2018: Mr. Nicholas J. Bronni Mr. Dylan Jacobs Ms. KaTina R. Hodge Mr. Monty Vaughan Baugh 323 Center Street, Suite 200 Little Rock, Arkansas nicholas.bronni@arkansasag.gov dylan.jacobs@arkansasag.gov katina.hodge@arkansasag.gov monty.baugh@arkansasag.gov /s/ Alex T. Gray Alex T. Gray 8