A Pulaski County circuit judge has dismissed a lawsuit challenging two Legislature-proposed amendments that will be on the Nov. 3 election ballot in Arkansas -- one that would make it more difficult to qualify proposed measures for the ballot and the other that would eliminate lifetime term limits for state lawmakers.
Andrew Kimbrell filed the lawsuit Oct. 9 against Secretary of State John Thurston arguing that, because of plummeting newspaper circulation, voters won't know what Issue 2 and Issue 3 are all about, based only on the wording they'll see on their ballots.
"[I]t is certain that a large majority of voters will be seeing these proposals for the first time in the voting booth where they have only the ballot title to guide them," the suit states "Having never seen the text of the amendment, and with a minimal ballot title that does not contain any substantive information about the amendment, voters will be unable to cast an informed vote."
According to Article 19, Section 22, of the Arkansas Constitution, the state Senate or House of Representatives can propose amendments to the Constitution. While the ballot can contain the less-informative "ballot title," a notice including the proposed amendment must be "published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election."
But that's no longer a sufficient way to inform voters, according to Kimbrell.
"The notices for the issues on the ballot this November were printed in 99 Arkansas newspapers," according to the lawsuit. "Total paid circulation for these 99 newspapers is less than 450,000. Assuming that all 450,000 newspapers reached a voter, and none went to a non-voter, about 25.6% of Arkansas' 1,755,775 registered voters received a newspaper that included the 2020 public notices."
Pulaski County Circuit Judge Mary S. McGowan dismissed the case Monday.
"The court finds that both Issue 2 and Issue 3 comply with the applicable governing procedures of Article 19, Section 22, of the Arkansas Constitution," wrote McGowan.
On Sept. 9, McGowan dismissed another suit attempting to have the same two amendment proposals thrown off the Nov. 3 ballot. Tom Steele, chairman of the Arkansas Term Limits committee, was the plaintiff in that suit.
In his June 29 complaint, Steele argued that, with the passage of Act 376 of 2019, all ballot-title challenges should be evaluated solely under Amendment 7 to the Arkansas Constitution, which is a more rigorous standard of review that applies to citizen referendum proposals.
On Oct. 15, the Arkansas Supreme Court upheld McGowan's decision in the Steele case.
"Nowhere in Act 376 does it expressly state that this court must review a constitutional amendment proposed by the General Assembly under Amendment 7," according to the Supreme Court ruling.
In a concurring opinion, Supreme Court Justice Rhonda K. Wood, addressing the argument Steele made regarding newspaper readership, said: "This court cannot change the Constitution. And absent a conflict with the constitution or a need to return 'to the statute's clear language,' stare decisis [a Latin phrase meaning to stand by decided matters] demands this court follow its precedent."
The same day the Supreme Court ruled in the Steele case, Michael Mosley, assistant attorney general, filed an amended motion to dismiss Kimbrell's suit.
"The Steele opinion from the Arkansas Supreme Court is binding authority in this matter," Mosley wrote.
In a brief supporting his amended motion to dismiss, Mosley wrote that Steele's statistics didn't account for online newspaper readership, or for entities other than newspapers that publish news and notices online, such as the Arkansas Press Association and the secretary of state's office.
"Digital subscriptions, which were already on the rise before covid-19 ... have skyrocketed since," according to Mosley's motion.
[RELATED: Full coverage of elections in Arkansas » arkansasonline.com/elections/]
Steele also didn't take into account multiple family members who might read the same newspaper delivered to their house, according to Mosley.
McGowan cited the Steele ruling in her order Monday.
"This court finds that the Steele case is controlling and that Article 19, Section 22, of the Arkansas Constitution defines the standard of review," she wrote, referring to amendment proposals from the Legislature.
"This case is a challenge to Issues 2 and 3 due to their insufficient ballot titles," wrote McGowan. "The Arkansas Supreme Court has adopted a manifest fraud standard regarding ballot titles on amendments referred by the General Assembly to the people. Issue 2 and Issue 3 on the November 2020 ballot are analyzed pursuant to this standard. The plaintiff urges this court to adopt a new standard."
The ballot title for Issue 2 reads: "A Constitutional amendment to be known as the 'Arkansas Term Limits Amendment'; and amending the term limits applicable to members of the General Assembly."
The ballot title for Issue 3 reads: "An Amendment to the Arkansas Constitution to amend the process for the submission, challenge, and approval of proposed initiated acts, constitutional amendments, and referenda."
The text of the proposed amendments can be found on the secretary of state's website at sos.arkansas.gov/elections/initiatives-and-referenda.