More than signatures: Marijuana petition needs state board’s approval

Not exactly. 

Once the signatures have been submitted, the process to pass a constitutional amendment at the ballot box passes through the state Board of Election Commissioners, who must certify the amendment for the ballot. 

By law, the board will have 30 days from the time an amendment’s sponsors submit signatures to the secretary of state to determine whether it will certify or reject an amendment’s ballot title and popular name. The board will do so in a public meeting, which will likely take place in the first week of August, according to Daniel Shults, director of the state Board of Election Commissioners. 

A new role 

The Board of Election Commissioners is fairly new to the initiative process. The board did not have a role in the amendment process before the passage of Act 376 of 2019, which made several changes to the initiative process. (Well, that’s not exactly right. There was a reference in the state Constitution to the board having some role in the amendment process, but the board had not done anything to fulfill that role and, effectively, did not have anything to do with amendments before 2019). 

Before passage of Act 376, the initiative process called for ballot language to be approved by the attorney general before signatures could be gathered. Upon passage of Act 376, the attorney general was removed from the process and the Board of Election Commissioners was charged with certifying the ballot title and popular name of amendments after signatures have been collected.

Before Act 376, sponsors needing approval from the attorney general would draft amendments and usually several revisions of those amendments while working with the attorney general’s office to find suitable language, according to Steve Lancaster, counsel for Responsible Growth Arkansas. 

“The analysis that the attorney general used to make, [the Board of Election Commissioners] is now making that on the back end of the process rather than the front end,” Lancaster said.  

Certify the amendment? What does that mean? 

The board must certify the amendment for the ballot, but what does that mean? 

“Pursuant to Act 376 of 2019, the SBEC must determine whether the ballot language is misleading or the question is written so that the voter believes their vote seeks to achieve a result that is the opposite of the actual result,” Shults said. 

In other words, they are supposed to make sure a voter’s YES means a YES and a NO means a NO. 

Here’s the language from Act 376 of 2019 that charged the commission with this role and describes its duties: 

“If the board determines that the ballot title and popular name, and the nature of the issue, is presented in a manner that is not misleading and not designed in such a manner that a vote “FOR” the issue would be a vote against the matter or viewpoint that the voter believes himself or herself to be casting a vote for, or, conversely, that a vote “AGAINST” an issue would be a vote for a viewpoint that the voter is against, the ballot title and popular name of the statewide initiative petition or statewide referendum petition shall be certified to the Secretary of State to be placed upon the ballot …”

Have they done this before? 

This year won’t be the Board of Election Commissioners’ first go-round with amendments. 

In 2019, the board certified an amendment by Safe Surgery Arkansas concerning the scope of practice of optometrists. The amendment was rejected by Secretary of State John Thurston due to an issue regarding signatures and Act 376. After a number of lawsuits and hearings, the state Supreme Court did not require the issue be put on the ballot. 

In 2020, the board considered three amendments. The board approved an amendment regarding the drawing of legislative districts, but rejected amendments concerning ranked-choice voting and the addition of 16 casinos to the state. 

Thurston ruled against all three amendments because of problems related to the signature-gathering process. 

Each amendment was appealed to the state Supreme Court, where Act 376 says the sponsor of the petition and any registered voter can appeal the ruling. 

The Supreme Court ruled against the groups pushing amendments on redistricting and ranked-choice voting. The group pushing the casino amendment appealed to the Supreme Court but gave up the fight before a hearing was set to take place before a special master. 

Who are the commissioners? 

The state Board of Election Commissioners is a seven-member board that includes the secretary of state as chairman. Two other members are appointed by the governor and one member each is appointed by the president pro tempore on the state Senate and the speaker of the state House of Representatives, the chair of the state Republican Party and the chair of the state Democratic Party. 

The Board of Election Commissioners is composed of: 

Secretary of State John Thurston, chairman

Sebastian County Clerk Sharon Brooks, governor’s designee

James Harmon Smith III, Democratic Party designee

Bilenda Harris-Ritter, Republican Party designee

Wendy Brandon, Senate President Pro Tempore designee

William Luther, Speaker of the House designee

Jamie Clemmer, governor’s designee