Supreme Court: Dot this ’i’ that can’t be dotted
The Arkansas Constitution says that “the people reserve to themselves the power to propose legislative measures, laws and amendments.” That may be so, but the people had better dot every “i” to satisfy the Arkansas Supreme Court, even if those “i’s” can’t be dotted.
The Court on Aug. 27 blocked two proposed constitutional amendments, both of whose sponsors collected roughy 150,000 signatures from Arkansas citizens to get on the November ballot.
One, sponsored by Arkansas Voters First, would create an independent legislative redistricting commission to redraw state congressional and legislative districts after each U.S. census. Currently, those lines are drawn by elected officials every 10 years.
The other, sponsored by Open Primaries Arkansas, would place all candidates in the same March or May primary, rather than dividing them into taxpayer-funded Republican and Democratic Party affairs. The top four candidates regardless of party would advance to the November general election, where voters would rank their choices. If no candidate wins a majority, then there’s a process for counting second choices.
These would be major reforms. The first would make it harder for politicians to gerrymander districts by drawing squiggly lines on maps to cherry-pick voters. The second would give voters more options so they aren’t locked into choosing between one Republican and one Democrat in November. We might have more competitive elections instead of most incumbents being unopposed, or practically unopposed, as occurs now.
Once the two efforts gained momentum, the party in power — currently Republicans but if this were 12 years ago it would have been Democrats — sought to stop them at the behest of Sen. Tom Cotton. Human beings naturally don’t want to change the rules of a game they’re winning.
Meanwhile, Secretary of State John Thurston said he wouldn’t count the signatures for either initiative because they had certified that signature gatherers had “acquired” criminal background checks when the law says they must “pass” them.
Thurston didn’t just pull that out of a hat. A special master — a person appointed by the court to provide a recommendation — had said the wording was a problem in a Supreme Court case involving another ballot initiative. Then another special master appointed to look at these two initiatives agreed the wording could be a problem. The Supreme Court agreed, voting 6-1 to block the amendments from proceeding.
Here’s the thing: If you’re going to thwart the will of 150,000 Arkansans who exercised a constitutional right by signing a petition during a pandemic, you’d better have a good reason. And if the two groups had actually violated a reasonable law so they could let criminals collect signatures, that would be one.
However, the law makes it impossible to dot that “i.” As pointed out by Justice Jo Hart in her lonely dissent, there’s no such thing as “passing” a background check. The law doesn’t define it. The State Police and Arkansas Crime Information Center merely provide requested information, and they can’t do a check of federal crimes. Really, all the sponsors can do is “acquire” a check, so they would have been committing a crime by swearing otherwise.
Meanwhile, the sponsors presented to the secretary of state sworn affidavits saying the background checks showed none of the signature-gatherers were disqualified. How is that not “passing”?
There’s a reason we have learned Supreme Court justices review laws passed by non-lawyer legislators. When a badly written law conflicts with a 146-year-old constitutional principle — “the people reserve to themselves the power to propose … amendments” — the justices are supposed to side with the principle and declare the law unconstitutional.
Instead, they nitpicked, demanded obedience to a law that can’t be obeyed, and ignored the constitutional principle.
The groups have petitioned the Arkansas Supreme Court for a rehearing, which is unlikely. Then Arkansas Voters First on Tuesday filed suit in federal court. A favorable ruling could get both proposals on the ballot.
If that happens, we can debate whether they are the best ways to address the electoral system’s problems. Something needs to be done because the process is broken, and electing one party rather than the other will not fix it.
As voters, we should focus not only on specific issues but also our primary responsibility — to ensure politicians don’t get too comfortable, which will happen if they can cherry-pick voters and skate through elections where people don’t have choices.
Steve Brawner is a syndicated columnist in Arkansas. Email him at email@example.com. Follow him on Twitter at @stevebrawner.