Andrew DeMillo, Associated Press
LITTLE ROCK, Ark. (AP) – By ruling that a proposed casino legalization measure was not qualified for the November ballot, the Arkansas Supreme Court provided clarity to voters on what issues they’ll decide in less than a month. But they punted on whether a state law aimed at avoiding last-minute challenges to ballot measures is working as intended.
Justices last week invalidated Nancy Todd’s proposed constitutional amendment, which would have given her the exclusive right to operate casinos in four Arkansas counties, because she had revised the language of her proposal after gathering signatures.
The ruling focused on one part of a challenge brought by opponents of the measure, but sidestepped a frustration that justices vented with the 1999 law that was enacted to allow an early review of proposed initiated acts and constitutional amendments.
“The whole idea of Act 877 was to answer the Legislature’s concern because we were kicking things off the ballot,” Justice Donald Corbin said during oral arguments over Todd’s lawsuit against the state. “People were bringing these challenges at the last minute. It’s almost like this one here. Here we are, three or four weeks before election time, and here we are wrestling over an election issue. How do we avoid it?”
It’s a question justices, who said Todd’s lawsuit against the state was moot after they invalidated her proposal, left unanswered. But it’s one that advocates on both sides of the casino debate said needs to be addressed by the Legislature.
Before Act 877, the high court struck down eight of 11 citizen initiatives cleared for the previous three general election ballots, many within days of the election. The law allows any Arkansas taxpayer or voter to ask the secretary of state to review, with the consultation of the attorney general’s office, whether any proposed initiative is legally sufficient.
That’s exactly what happened with Todd’s proposal. Secretary of State Mark Martin’s office rejected her proposal after the attorney general’s office said it wasn’t legally sufficient because it didn’t tell voters it would effectively repeal a state law allowing two race tracks to offer electronic gambling.
Todd’s attempt to address that concern – revising her proposal to say it “may” affect the games – was her undoing. Justices said the proposal on the ballot was no longer the one that she presented to voters when gathering signatures to qualify.
“I’m not sure what I did wrong here,” Todd said after the court’s ruling.
The decision means two competing casino legalization measures will remain on the ballot, but votes won’t be counted for either. Justices last month rejected a Texas businessman’s bid for more time to circulate petitions for his casino amendment.
The uncertainty surrounding the ballot a month before the election is the scenario that the law was meant to avoid. Justices even appeared to suggest a fix during oral arguments, though they didn’t address it in the ruling over Todd’s measure.
“The clear intent of 877 was to mandate or require early objection to the ballot title,” Justice Paul Danielson said during last month’s hearing. “Why couldn’t it be said that the intent of 877 was clearly to require pre signature challenges to the ballot title and that would fix everything?”
Lawmakers have already said they want to look at changes to state law surrounding ballot measures, but have focused their concerns more on how to deal with thousands of invalid signatures that were submitted for the casino proposals and a severance tax hike that did not qualify.
But, with no clear guidance from the court, it’s unclear whether changing Act 877 is part of that discussion. A spokesman for Martin’s office said the secretary of state isn’t planning on calling for any changes to the 1999 law.
The law has come under fire even from Todd’s opponents. Jerry Cox, head of the Arkansas Family Council, said he was pleased with the court rejecting Todd’s amendment but said he sympathizes with the obstacles she faced. Cox, a veteran of ballot initiative campaigns in the state, said lawmakers need to look at repealing the law altogether.
“It’s like having two referees on the field. One can tell you to do one thing and the other will disqualify you if you did what the first told you to do,” Cox said. “I’m in the odd position of being grateful for the outcome that the broken process produced.”
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Andrew DeMillo has covered Arkansas government and politics for The Associated Press since 2005. He can be reached at www.twitter.com/ademillo
Copyright 2012 The Associated Press.
