The 93rd General Assembly of the Arkansas State Legislature confirmed the passage of two constitutional amendment proposals on Thursday, sending to 2022 midterm election voters two amendments which will reshape the process to pass future constitutional amendments and give the legislature more power to convene itself in times of emergency.
The legislature, allowed to refer three constitutional amendments to voters every regular session, first confirmed Senate Joint Resolution (SJR) 10 on Thursday. SJR10, sponsored by State Sen. Breanne Davis of Russellville, would allow the State Legislature to convene itself into extraordinary session provided that the Speaker of the House of Representatives and the President Pro Tempore of the State Senate issue a joint proclamation calling for the session or that two-thirds of both chambers sign a proclamation requesting it.
The amendment, which received broad support in both chambers, was filed just a year after Gov. Asa Hutchinson, who currently holds the sole privilege of calling for an extraordinary session, called both chambers into session in response to the then-beginning coronavirus pandemic. That session included the passage of two bills which created the COVID-19 Rainy Day Fund and included an emergency clause that made the two bills go into immediate effect. Davis, in her comments on the Senate floor on Tuesday, said SJR10 puts Arkansas in line with 36 other states who give their legislative branches the same privilege as the governor.
“We wanted to ensure through [SJR10] that special sessions remain special by requiring a higher threshold to allow the legislature to call itself into special session,” Davis said. “We also wanted to ensure that the legislative branch had the ability to call itself into a special session if necessary.”
The other confirmed amendment proposal, House Joint Resolution (HJR) 1005, would raise the bar for the passage of constitutional amendments by voters in the state. Sponsored by State Rep. David Ray, HJR1005 raises the threshold of passage of a constitutional amendment to 60 percent of voters in the state. Previously, passage of a constitutional amendment only required a simple majority of Arkansas voters for passage. The amendment, which received a bit more pushback than its counterpart SJR10, passed by a final 23-6 vote in the state Senate on Thursday which included four senators who declined to register a vote on the amendment.
State Sen. Bart Hester, the Senate sponsor of Ray’s proposal, said that HJR1005 will give future constitutional amendments a vote threshold that matches with the importance of amending a constitution.
“[The state legislature] has different thresholds for votes based on importance,” Hester said. “[HJR1005] says that changing the state’s constitution deserves the utmost importance.”
Opponents of HJR1005 have criticized the amendment’s attempt to placing additional burden on the passage of amendments that Arkansans support. State Rep. David Whitaker outlined his opposition to the amendment in the April 14 committee meeting in the state House.
“I could someday see having an increased threshold for constitutional amendments,” Whitaker said. “But, going above the 50 percent requirement for initiated acts is holding the public to a higher standard than we hold ourselves. So, I’ll be voting no.”
With one constitutional amendment left for the assembly to send to voters, it appears likely that State Sen. Jason Rapert of Conway’s SJR14 will be the final amendment approved. While still awaiting approval in the House, SJR14 passed the Senate by a 27-4 vote on Thursday. If passed by the House and approved by voters in the 2022 midterms, SJR14 would “guarantee that the freedom of religion is not burdened by state and local law,” per the resolution’s text.
Thursday’s marathon session of the state Senate, which didn’t end until after 9 p.m., also included a rigorous debate on senate protocol and parliamentary procedure which ended with the failure of State Sen. Clarke Tucker’s long-in-the-works Senate Bill (SB) 701. SB701, an absentee voting integrity bill, was one of Tucker’s most arduous pieces of legislation he filed this session that went through several forms and edits prior to the bill’s failure on Thursday. Per Tucker, his bill cleared up unclear language regarding the state’s absentee voter process and included both Democratic and Republican initiatives to streamline the absentee balloting process after the 2020 Presidential Election in which significant numbers of Arkansans voted absentee.
The drama on Thursday had little to do with SB701’s content, however. On Wednesday night, five members of the Senate State Agencies and Governmental Affairs Committee signed Tucker’s bill out of committee without a roll-call vote hours after the bill didn't have the five votes needed to pass out of the committee's regular meeting. Tucker, when asked by Committee Chair Rapert whether he wanted them to complete a roll-call vote at the meeting following a voice vote, declined as a failure at roll-call in committee would have permanently killed SB701.
The decision by five senators to sign SB701 out of committee without a voice vote was an "unusual procedure," per Rapert who spoke to the Log Cabin on Saturday morning. Rapert said bills are rarely signed out of a committee without a hearing, especially when the bill is like SB701, which he described as "contentious."
Citing messages he had received from constituents and the testimony of members of the public at Wednesday's meeting, Rapert said that signing the bill out of committee without a proper hearing would have prevented members of the public opposed to the bill from voicing their concerns. Rapert added that he didn't have an issue signing a bill out of committee provided that the committee chair and members of the public were properly notified, adding that he wasn't alerted to the decision to sign the bill out of committee until about 8 p.m. on Wednesday night and wanted to have additional notice on the members' decision, especially considering the public opposition he received against SB701.
The question as to how SB701 received the additional vote it needed to be signed out of the committee on Wednesday is also tricky. During Wednesday's committee voice vote, State Sen. Bob Ballinger voted against the bill after testimony from witnesses (Ballinger had previously been prepared to approve the bill, per his testimony on the senate floor on Thursday). After the committee meeting, Tucker added additional amendments to solve Ballinger's concerns that ultimately made him decide to join four other committee members in signing out the bill, Ballinger said on Thursday.
Rapert characterized the five members decision' as a way to "give [Tucker] a bone," or to allow his bill which has spent so long in committee to receive a full vote on the senate floor.
In her comments on the senate floor on Thursday, Davis, who spearheaded the process to sign the bill out of committee, attempted to explain how the process proceeded on Wednesday evening and responded to concerns that members of the public opposed to the bill didn't have an adequate opportunity to voice their concerns due to the decision to sign the bill out.
"[Signing out SB701] was not [a decision] to be disrespectful of anybody or any process," Davis said. "I don't know what [has] been said since last night about me or the five people who signed [SB701] out of committee, but the people who oppose the bill have had [multiple opportunities] to come to our committee and speak against the bill."
Davis also explained why she and the other four committee members decided to lead the effort to sign SB701 out of committee and said that Rapert was notified of the decision of the five committee members quickly on Wednesday night.
"We thought it was fair, due to the amount of work that [Tucker] has put in to this bill, that it be heard on the floor [and] that we as a body could vote it up or down," Davis said.
After SB701 made its way to the senate floor on Thursday, Tucker made a motion to re-refer the bill back to the State Agencies and Governmental Affairs Committee. After additional discussion and concern that a referral back to committee would effectively kill SB701 due to the lack of time left in the session, Tucker withdrew his request and began to present the bill on its merit to the full Senate body.
The drama didn’t end there, though. Senators opposed to Tucker’s bill argued that the passage of SB701 required a super-majority of senators to approve it because it amended Arkansas’ constitution on issues pertaining to electioneering. The effort, led by State Sen. Mark Johnson, ultimately failed after the Chair of the Senate ruled that Tucker’s bill didn’t amend the constitution and required only a simple majority of legislators. A vote by members of the senate upheld the chair's ruling.
By the time Tucker stood to present his bill, nearly an hour of discussion on senate protocol and parliamentary debate had occurred. Despite some support from a few Senate Republicans and all of the chamber’s Democrats, SB701 failed by a substantial majority with 20 senators voting against the bill.