David Couch, the Arkansas attorney who led initiatives to increase the minimum wage and legalize medical marijuana, is planning how he might change the initiative process itself.
Couch wants voters in November 2024 to change how constitutional amendments, initiated acts and referenda are enacted. Initiated acts are laws proposed by citizens and passed by voters. A referendum is when citizens repeal a law passed by legislators.
He’s still tweaking his proposal, but he was encouraged by a poll he took.
“We’ve just tested concepts,” he said. “We haven’t gotten to the specific language of it, but, yeah, it’s hugely popular, in excess of 60%.”
He did not disclose who is funding the effort beyond saying, “Groups of people who traditionally support the initiative and referendum process.”
Couch’s proposal would make many changes. One would prevent legislators from changing a voter-approved amendment.
The Constitution currently says they can do this with a two-thirds vote, but the Arkansas Supreme Court said in the 1950s that they really can’t, he said.
Couch said a marijuana case making its way through the courts could give the courts a chance to reverse that 1950s decision. If given free rein, he fears lawmakers will start making changes to the constitutional amendments that voters pass.
He also hopes to reform the process for qualifying an initiative for the ballot. Currently, citizens must write a ballot title that the attorney general approves. Then they must collect hundreds of thousands of valid signatures. After they’ve spent millions of dollars and invested thousands of hours of work, the Supreme Court often throws the proposal off the ballot – often because of a signature collection technicality.
Under Couch’s amendment, a proposal that’s approved by the attorney general would be subject to a court challenge before the signatures are collected – not afterwards.
Couch also wants to make it easier to collect signatures and make them less vulnerable to being challenged over a technicality. State legislators outlawed paying canvassers by the signature, which he said increased the cost significantly. They banned out-of-state individuals from collecting signatures. He said that’s an unnecessary prohibition against professional canvassers. They also added a list of criminal offenses that disqualify canvassers. He said a long-ago marijuana conviction should not infringe on a person’s right to collect signatures now.
He also would remove the requirement that canvassers sign an affidavit in front of a notary. Many signatures get thrown out because of this. Instead, canvassers would sign a declaration under penalty of perjury, with no notary involved.
One other change would be increasing from 15 to 25 the number of counties where canvassers must collect the required minimum number of signatures. Conservative legislators would approve of that one because it would ensure each initiative is a little more of a statewide effort.
Couch said his amendment also would prevent private businesses from writing themselves into the Constitution, as the casino amendment did in 2018, and would not let amendments target a specific location, as that amendment did in Pope County.
Finally, his proposal could clarify that legislators must vote for emergency clauses separately from their votes on the bills themselves. The Constitution plainly requires this in its section dealing with referenda, but lawmakers haven’t been doing that. Couch is watching to see what the Arkansas Supreme Court does in a case involving Gov. Sarah Huckabee Sanders’ LEARNS Act.
As stated earlier, Couch is still fine-tuning his amendment. He’ll have to overcome many challenges before it reaches the ballot. Even then, voters could always reject it.
But his efforts are worth noting for two reasons. One, he’s pretty good at this. In recent years, he’s been Arkansas’ unofficial 136th legislator – more impactful than many of the 135 elected ones.
And second, he really believes in the initiative process.
“It’s how we hold them accountable,” he said of elected legislators. “It is our only, at this point in time, it is our only real check on them.”
Steve Brawner is a syndicated columnist published in 13 outlets in Arkansas. Email him at brawnersteve@mac.com. Follow him on Twitter at @stevebrawner.
