The special interests that want to build up a more powerful state Legislature, where they can predictably wield more of their own influence, probably regret they didn't beat President Donald Trump to the punch in using the phrase "enemy of the people."
Arkansans for Jobs and Justice, the temporary ballot question advocacy group, is among those special interests, and it would love nothing more than to convince Arkansans that the judicial branch of state government is the enemy. Why? Because the courts won't toss aside the Constitution, law and precedent to let lawmakers have their way.
What’s the point?
Our legislators owe Arkansans drafts of proposed constitutional amendments that respect the limits of voters’ “for” or “against” options.
The message they're selling is that the state's courts are a barrier to the legitimate expression of the people's will, and that will, they will naturally say, is most accurately reflected in the Arkansas General Assembly. Of course, in representative government, the House and Senate are flawed but important expressions of the people's will, but let's not imagine for a moment that everything lawmakers do perfectly expresses the desires of their fellow Arkansans.
Just look at how our lawmakers have resisted, and succeeded in changing, term limits supported by the people. Arkansas term limits were first adopted in a grass-roots campaign of the people in 1992. The people spoke, but legislators' efforts to quell term limits' impact have been steady. Finally, in 2014, state lawmakers wrote up an "ethics" amendment and tucked inside an extension of term limits that nobody in the public was clamoring for. But it was passed as a result of the subterfuge. That lawmakers have dishonestly gone about undoing the state's term limits is why there was a new effort in 2018 for an initiated act to re-establish strict term limits and to bar the Legislature from trying to undo them again. The measure got tossed by the Supreme Court last week because some signatures of registered voters were improperly gathered by canvassers. Trust us: Term limits will be back in a couple of years.
Arkansans don't need to make the Legislature the more powerful branch of government and should never fall for the very Trumpian tactic supporters of Issue 1, the "tort reform" amendment, employed. The president likes to find someone or something to vilify so that he can churn up emotions and steer people toward whatever solution he wants. Issue 1 supporters don't appreciate one of the co-equal branches of government tripping up the unbridled desires of another. Issue 1 was about giving the Legislature more control by limiting "judicial power."
On Thursday, the Arkansas Supreme Court took the only reasonable action it could against Issue 1 when it ordered that no votes for or against it be counted when the Nov. 6 election is completed. Why? Because in proposing an amendment to the state Constitution, the Legislature tried to do too much within a single amendment.
The state Constitution allows our General Assembly to propose no more than three constitutional amendments at each general election for senators and representatives (every two years). The Constitution requires that the amendments "shall be so submitted as to enable the electors to vote on each amendment separately." In prior court cases, the Supreme Court held no violation of the separate issue requirement occurs as long as all parts of an amendment are "reasonably germane to each other and to the general subject of the amendment."
Doesn't that make sense? If voters are going to be asked to change the state's Constitution, they should be empowered to cast a ballot for or against a clearly delineated proposal that makes either a single change or a set of changes so reasonably related that they constitute one basic idea the voter can support or oppose. Without such a limitation, our legislators could refer an amendment that pairs a popular notion to an unpopular notion, all part of manipulation to get the unpopular part passed. Without requiring that germane linkage, lawmakers could go wild, proposing a single measure that (1) establishes term limits and (2) require judges to wear red clown noses and pink robes when they preside over cases that challenge the constitutionality of a legislative act.
Not everyone sees the value in having a judicial branch as a real check on legislative power. The pro-Issue 1 group mentioned above had this to say after last Thursday's Supreme Court decision: "This very ruling demonstrates the need for the reforms contained in Issue 1 that seek to restore the balance among our branches of government. Six members of the Court have once again reinforced, and indeed protected, their position as the ultimate and unchecked authority in Arkansas government. This kind of power demonstrated by the Court is without limits and has been wielded in an arbitrary fashion."
It does nothing of the sort, but let's cast them as enemies of the people anyway, right? Let's not forget this important fact when it comes to responsiveness to the public: Arkansas' Supreme Court justices are elected, not appointed. The Legislature aren't the only ones who can claim power from the people.
Here's what the Arkansas General Assembly owes to the people of this state when its members refer constitutional amendments to the ballot: Clear, single-issue measures for which a vote "for" doesn't force voters to swallow something else they don't want. It is not in the people's interest to be forced into voting for or against omnibus amendments full of unrelated or distantly related changes.
If the Legislature wants a cap on Arkansans' right to contract with their attorneys for fees they believe to be appropriate, make that one proposal. If they also want a cap on punitive damages in court cases, make that a separate item. If lawmakers want to create new powers for itself, make that a single-issue amendment.
The General Assembly gets three amendment proposals every two years, which should be plenty if one accepts the idea that the state's Constitution shouldn't be easily and routinely changed. And we believe that.
Whether one is for or against Issue 2 -- which would install in the state Constitution a requirement for photo ID before any citizen's vote can be counted -- at least it's a clear, concise, one-issue amendment the people can vote up or down. No hidden and unrelated changes in that one. Arkansans can let their voices be heard on that measure without having their "for" or "against" vote hijacked for some other matter unrelated to voter identification.
Lawmakers have every right to propose amendments to the state Constitution, but in a fair and responsible manner that respects voters. Issue 1 did not do that.
Commentary on 10/21/2018