by Mark Moore
There is more going on in Arkansas government right now than whether or not to fund the mis-named “Private Option” Medicaid expansion (not that it will be funded with much besides borrowed dollars). Take for example, this next story, which ought to serve as evidence that our legislature is not competent enough to undertake a major expansion of anything.
With Act 1413 of 2013 the legislature made it much harder for grassroots activists who want to pursue ballot initiatives to get them on the ballot. The law also made changes to the way the three referred amendments are done. Each regular session, the legislature can refer three suggested amendments to the people for approval. This time their package includes an an amendment which will weaken Arkansas’ term limits provisions. This amendment is deceptively crafted to make it look like an ethics reform amendment which establishes term limits.
They may be sneaky devils, but they are not competent ones. Act 1413 also took from the Attorney General the power to give popular names to referred amendments and gave that power to the legislature. Too bad for them they never bothered to provide the names. The legislature failed to provide such names, yet they gave themselves alone the power to do so. And courts have ruled that referred amendments cannot go to the ballot without such names. Oops.
There has been pressure on Secretary of State Mark Martin’s office to create names, or use names suggested by the Attorney General, in order to get those amendment questions from the legislature placed on the ballot. His office asked the Attorney General if they even had the legal authority to do that. The AG’s office produced a stream of convoluted verbiage which told him that he could go ahead and open that can of worms. This places the Secretary of State in a no-win position.
After reviewing the Attorney General’s memo I am more convinced than ever that there is no legal authorization for Secretary Martin to supply popular names to any referred amendment. Whatever he does in this matter will position him for criticism from some quarter. Therefore the only choice he will have is whether he will be criticized for acting justly, or unjustly. Should he take upon himself a power not given to him by law, he will be criticized justly. Should he act with restraint and fidelity, having care not to exceed his lawful authority in the name of expediency (which is ever the excuse of the over-reaching executive) the criticism he will receive will be unjust.
It is often harder to abide by the particulars of the law, than to take creative license to disregard them. Still, if one is to expect regular citizens to abide by the particulars of the law it is my belief that the Executive must set the finest of examples and do the same, even on occasions where doing so is inconvenient. After all, the citizens often find the law inconvenient as well, but are not allowed to set it aside on that account.
In the last State of the Union Address, a man many consider to be the President of the United States spoke of using his pen and phone, not to veto law, but to create it- filling in new powers by Executive fiat where the legislature did not grant him the course most in accordance with his wishes. This is most rightly recognized as an abuse of power by fair-minded and reasonable persons.
Should Secretary Martin ask for clarification from one or both of the other branches of government before he acts, it would be a shining example of how a respectable Executive branch office-holder ought to comport themselves. Should he push on and act without such clarification, he would be guilty in a small way of the same trespasses against divided government that Barack Obama means to do in a great way.
As to the memo from the Attorney General on the real question at hand, if one looks closely, it subsisted entirely of personal opinion and appeal to necessity unsupported by either law or court precedent. First, let’s look at where the opinion gave ample evidence for its conclusions….
The opinion provided ample evidence that referred amendments do not require ballot titles so long as they have a sufficient popular name. They cited the court precedents for that, even though they acknowledge several statues refer to both. Let’s say for the sake of argument that this covers for one half of the double failure of the legislature on SJR7. This still leaves us with their failure to provide a popular name on all three of the issues.
They offered ample evidence that the Secretary of State is authorized, and even has a duty, to enumerate the issues. He is to provide the issue numbers.
They offered ample evidence that issue numbers alone do not provide enough differentiation to constitutionally place issues on the ballot without a popular name.
All of the above takes us to the second half of page six and then page seven in the opinion. All the rest of the letter up until this point does not even speak to the real trouble at hand- that the legislature gave itself and itself alone the power to give popular names to referred amendments, and then failed to provide them.
Is there anything on the second half of page six or page seven like a law authorizing the Secretary of State to take it upon himself if the legislature fails to act? No, as the opinion itself says in the center of page six “But, as noted above, no official has been expressly assigned the duty to prepare either a popular name or a ballot title when the joint resolution does not designate one”.
To what do they appeal then when they offer the opinion that Secretary Martin might seize the pen and write where the legislature has failed to do so? They appeal to necessity, that father of Executive over-reach, when they write “There is, nevertheless, a practical necessity of sufficiently identifying legislative proposals on the ballot.”
Oh, they do cite Article 19: 22 of the State Constitution, which outlines the process. Surely the Secretary of State has a duty to place a properly referred amendment on the ballot, but to say that means he himself may therefore cure improperly referred amendments is to beg the question. The issue constitutionally, is the last sentence of article 19:22 : Proposals are to “be so submitted as to enable the electors to vote on each amendment separately.”
The process of submitting a proposal in that manner has many components, some of which are in fact the responsibility and duty of the Secretary of state. Composing popular names is simply not one of them. Article 19:22 does not say that the Secretary of State has responsibility for this process (in fact, the SoS is not mentioned anywhere in 19:22). Rather the legislature, in taking the power to issue ballot titles and popular names themselves, have specified that they have the power to perform that component of the job of preparing the proposals so as to “be so submitted as to enable the electors to vote on each amendment separately.”
The courts have ruled (per the cites in the AG’s memo) that the popular name is a part of the process of getting the proposals to “be so submitted as to enable the electors to vote on each amendment separately.” There is a duty to produce these names to properly get proposals on the ballot, but the subset of that which involves devising the popular names is not Mark Martin’s duty. It’s the legislature’s duty. Where the legislature gives themselves the power, they give themselves the duty. Listing all the duties the Secretary of State does have in the submission process does not alter one whit the duties which he does not have. He does not have the duty, or authority, to devise popular names for referred amendments. The legislature explicitly gave that power to themselves, not him.
Given that, the case from the AG rests on nothing but an argument from necessity, not propriety, along with mere unsubstantiated belief. Take this quote from page seven for example:
“….ideally this will be expressly addressed by the General Assembly, either in the joint resolution
proposing the amendment or by statute. Absent legislative clarification, however,
I believe the Secretary of State has the power, if not the duty, to ensure that proper
submission to the electorate occurs. I believe this reasonably follows from his
significant statutory role in the submission process”
The Secretary of State does have a significant statutory role in the submission process, but devising popular titles for referred amendments is simply not one of those statutory roles, no matter what the AG’s office “believes”. To the contrary, that role is specifically and by statute reserved to the legislature by Act 1413 of 2013.
The AG’s memo does not even attempt to claim that the old law applies to these proposals because they were passed a few days before Act 1413 of 2013 became law. That argument may or may not fly in court. After all, 1413 had no grandfather clause, but did have an emergency clause making it law immediately on passage, nor were the popular names selected by the AG prior to the law’s change. If the AG’s office didn’t even make that case, I don’t know why the SoS’s office should.
So what to do now that the legislature has failed to perform? The legislature is in fiscal session, with a super-majority vote they could fix this problem, which is only fair since their actions made it their responsibility. They could amend 7-9-204 to say “….may designate in the joint resolution proposing and amendment to the Arkansas Constitution, or elsewhere,” Then they could pass another resolution giving the popular name of each proposal. Or they could authorize the Secretary of State to provide popular names and ballot titles for referred amendments if the legislature fails to do so.
I call on the legislature to do the right thing and fix part of the mess they made when they gave themselves new authority yet failed to fulfill the responsibility which came with it. The people are weary of government breaking its own rules when convenient to itself even while it devises ever more laws and regulations to which we are expected to abide.