Political Opponents Seeking Fairness in Initiative Process

by Marty Cook  on Monday, Jun. 11, 2018 12:00 am   5 min read

Attorney General Leslie Rutledge accused the state Supreme Court of muddying the waters regarding initiative standards. Attorney David Couch and Family Council President Jerry Cox (inset) believe the process for citizen-led ballot proposals should be made easier.

David Couch and Jerry Cox are perhaps the strangest bedfellows in the state of Arkansas.

Couch is a self-proclaimed liberal lawyer and Cox is the head of the conservative Family Council in Little Rock. They rarely agree on anything, but they do agree on citizen-led ballot proposals.

Under Arkansas law, citizens are able to draft amendments or initiated acts to appear on election ballots. The proposals’ popular name and title are submitted to the state’s attorney general, and once the name and title are approved, the petitioner has to publicize the proposal and obtain an adequate number of signatures to put the proposal on the ballot.

Couch was the author of the Medical Marijuana Amendment, which reached the ballot and was approved by voters by a 53 percent to 47 percent margin in 2016. Cox led the effort to pass an amendment in 2004 that defined marriage as between a man and a woman.

“It’s pure democracy,” Couch said of the ballot process. “It’s a check and a balance for the General Assembly. The people have an idea, you write your law, circulate your petition and people give it a thumbs-up or thumbs-down.

“That’s how our [same-sex marriage ban] amendment got on the Constitution,” he said. “At that time, the Democrats were in charge, and they didn’t pass anything that would ban same-sex marriages and couldn’t have passed anything. The Family Council got together and passed an amendment that did that.”

The citizen-ballot process has hit a roadblock in recent years, though. In 2016, several approved proposals were stricken from the ballot by the Arkansas Supreme Court — one medical marijuana proposal was struck after early voting had started.

The ballot process has attracted much attention recently after Attorney General Leslie Rutledge repeatedly rejected citizens’ proposals to prevent their reaching the ballot. Couch, whose proposal to raise the minimum wage was repeatedly rejected, filed a lawsuit and the Supreme Court ruled May 23 that Rutledge had three days to approve the proposal or offer substitute language.

Rutledge then approved Couch’s proposal and three others she had previously rejected.

Hand at the Spigot
Couch and Cox both say that while ballot initiatives are a form of pure democracy, the system grants two elected politicians — the state attorney general and the secretary of state — almost supreme power to stop or dramatically hinder the process.

Couch said Rutledge’s repeated rejections of proposals shortens the timeline that he and other petitioners have to secure signatures in order to reach the ballot. The law requires signatures — for the 2016 medical marijuana amendment Couch needed nearly 68,000 — to be turned in to the secretary of state for certification.

Cox said that in 1988, when he submitted signatures for a proposal that would ban public funding of abortion in the state, Secretary of State Bill McCuen rejected the signatures. Cox said McCuen, who died in 2000, insisted his group had to have precinct numbers for each signature; Cox said his group of volunteers was able to scramble to acquire those in time.

“That is how they can jerk you around,” Cox said.

When Rutledge approved the four proposals after the court ruling, she released a statement criticizing the Supreme Court.

“[T]he Arkansas Supreme Court has once again muddied the waters on these standards by offering no insight in its decision requiring me to certify or substitute language of a ballot title that I had previously rejected,” Rutledge said. “In light of the Arkansas Supreme Court’s failure to put forth clear standards, I am certifying these proposals in an exercise of caution to ensure Arkansans are given an opportunity to put these measures on the ballot.”

Couch said the law on the language of proposals hasn’t changed and Rutledge was seeking to deflect responsibility for her decisions. Rutledge, before the court pressure, had rejected more than 60 consecutive submissions since 2016.

“You just want a fair shake,” Couch said. “Does the ballot title accurately reflect the sum and substance of the amendment and does it leave out anything that would give a reasonable voter cause for concern? That’s it.”

The citizen proposals are needed, Couch said, when the Legislature doesn’t want to deal with issues that may alienate their donors or interests. Medical marijuana would never have been approved by the Republican-controlled General Assembly and Gov. Asa Hutchinson, just as an abortion funding ban wouldn’t have succeeded in a Democratic government.

Need for Clarification
In her statement May 23, Rutledge also called on the state Legislature to clear up the confusion.

“The Arkansas Supreme Court’s failure to include clear standards and reasoning has only exacerbated the confusion surrounding ballot title submissions,” Rutledge said. “As I stated last week, I am calling on the General Assembly to create a system ensuring Arkansans have a clear and fair process to amend the constitution and place initiatives on the ballot.”

Cox said he is troubled by the way the initiative process has changed in the past seven years or so, but that has more to do with how outside organizations are spending money to participate. He said that when he ran his signature drives, he used a volunteer army to collect signatures — in the case of the marriage proposal, his group collected 200,000.

Couch uses paid canvassers — allowed by state law — to collect the signatures needed and said he may spend $1 million on signatures for his casino and minimum-wage proposals that Rutledge approved May 23.

“I fully support the initiative process where the people can propose a law and on their own put that on the ballot and bring it to a vote,” Cox said. “If you’re willing to pay people that much per signature, you could just about get anything on the ballot. If you have enough money you can do enough deceptive advertising to trick a lot of people into voting for something that is not good for them or for the state.

“I think the spirit of the initiative process was more in the direction that enough citizens would be concerned about an issue that a grassroots movement would rise up; people would voluntarily circulate the petitions and bring the measure to a vote. We’re not seeing very many volunteer petitions anymore.”

Couch said Rutledge has made the process adversarial rather than collaborative; the attorney general’s job is to work with petitioners on their proposals. Couch said that if he were attorney general — and he certainly does not want to be — he would work with Cox or anyone else on proposals he found personally awful.

Cox said he would like to see changes but said he doesn’t know exactly how the changes could be made without interfering with the purity of the process.

“I’m not ready to throw the baby out with the bath,” Cox said. “It’s not really about somebody putting something on there that I don’t like; we need a system that works fairly for everybody. Everybody knows what the rules are.

“There needs to be some kind of filter and screening process but it needs to be one that works fairly.”



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