Should it be harder to amend the Arkansas Constitution and pass voter-initiated acts? You’ll likely be answering that question in the voting booth next year.
House Joint Resolution 1005 by Rep. David Ray, R-Maumelle, would raise the threshold for passing constitutional amendments and initiated acts from the current 50 percent to 60 percent.
Proposed constitutional amendments can come from legislators or from the voters. Initiated acts come from the voters. They have the force of law but not the permanency of a constitutional amendment. The 60 percent rule would apply in all of those cases.
The resolution passed the House 74-18 Thursday and heads to the Senate State Agencies and Governmental Affairs Committee, where six of the committee’s eight members are co-sponsors.
Making his case for the amendment last Thursday, Ray said it’s too easy to amend the Arkansas Constitution. While it’s been amended 102 times, the older and revered U.S. Constitution has been amended only 27 times.
Ray said the state’s 50 percent threshold, lenient rules and small size make it too easy for big-moneyed, out-of-state interests to highjack the process, or for some billionaire to push a pet project here.
HJR 1005 applies not only to constitutional amendments but also to initiated acts, which are laws where voters act as their own legislature. Most laws passed by the Legislature require only a 50 percent majority for passage, so in that sense there would be a higher standard for laws initiated by citizens.
HJR 1005 would not raise the threshold for referenda, which is when voters cancel a law passed by the Legislature. Ray said that’s more of a defensive measure and should remain at 50%.
One reason HJR 1005 has gained traction is the actions of voters themselves. In recent elections, voters have approved increasing the minimum wage through an initiated act and legalizing medical marijuana through a constitutional amendment, two proposals the Republican legislative supermajority never would have advanced.
Both were citizen led and were pushed by attorney David Couch. He told me lawmakers are advancing HJR 1005 because they don’t like direct democracy. He’ll push his own proposal to make it harder for lawmakers to amend initiated acts and impossible for them to amend constitutional amendments.
The amendment requires a 60 percent majority to amend the Constitution in the future but requires only a 50 percent majority to pass, which raises this question: If the argument is that amendments should always require 60 percent support, shouldn’t this one include language applying that standard to itself?
Ray told me he checked with the Bureau of Legislative Research to see if that could be an option but was told it couldn’t be done under the Constitution. He didn’t want to do it anyway.
“I’m going to abide by the rules that are currently in place,” he said. “I’m not going to put myself at an inherent advantage to every other issue that will or might be on the ballot in 2022. What if, for example, there’s another amendment that’s proposed that directly competes with mine? I wouldn’t want to put it at a disadvantage to that amendment.”
Couch said he agrees the bar may be too low to pass constitutional amendments, but 60 percent would be too high.
And there are other barriers to citizen-led actions. It’s hard to collect enough signatures and then win the inevitable lawsuits that follow. The Supreme Court often disqualifies the proposals for technical reasons.
Legislators are trying to change that process as well. Senate Bill 614 by Sen. Breanne Davis, R-Russellville, would limit signature collecting to Arkansas residents only, and only those without a disqualifying criminal offense. Paid gatherers couldn’t be compensated by the signature, which is how they are paid now. It also would clean up conflicting legal language that led the Supreme Court to torpedo every citizen-led effort in 2020. It looks like it’s headed for the governor’s desk.
Actually, most constitutional amendments are initiated by legislators, not voters. Last November, legislators asked voters to approve a half-percent sales tax for highways and to change the state’s term limits law. Both passed with 55 percent support but would have failed had HJR 1005 been in effect. Lawmakers also referred an amendment making it harder through the signature process to amend the Constitution or pass an initiated act.
It failed with 44 percent of the vote, which may or may not predict how this will do.
Steve Brawner is a syndicated columnist in Arkansas. Email him at firstname.lastname@example.org. Follow him on Twitter at @stevebrawner.