Proponents and foes of a proposed constitutional amendment aimed at removing Pope County as a state-licensed casino site are at odds about whether the state Board of Election Commissioners should certify the proposed name and ballot title for the proposed amendment.
The state board is scheduled to meet Wednesday to consider certifying the popular name and ballot title of the Fair Play for Arkansas 2022 committee's proposed constitutional amendment aimed at axing Pope County as a state-licensed casino site, and the popular name and ballot title of the Responsible Growth Arkansas committee's proposed constitutional amendment that would legalize recreational marijuana, said board Director Daniel Shults.
Act 376 of 2019 shifted the responsibility of certifying a proposed ballot measure's popular name and ballot title from the attorney general to the Board of Election Commissioners.
Certification of the ballot title and popular name is one of the two requirements under state law for a ballot proposal to get on the general election ballot. The other requirement is for the secretary of state to certify that the sponsor has submitted the required number of valid signatures of registered voters on petitions.
Kevin Niehaus, a spokesman for Secretary of State John Thurston, said in a written statement that "We expect to know [today] whether the marijuana amendment qualifies for the ballot and we hope to know next Friday whether the casino amendment will qualify" for the ballot or the 30-day cure period to gather more signatures.
Three weeks ago, the Responsible Growth Arkansas committee said it turned in 192,828 signatures in its bid to qualify its proposed constitutional amendment for the Nov. 8 general election ballot, while the Fair Play for Arkansas 2022 committee said it turned in 103,096 signatures in its attempt to qualify its proposed measure for the ballot.
To qualify a proposed constitutional amendment for the ballot, a ballot committee is required to gather signatures of at least 89,151 valid registered voters and at least the required minimum number of signatures from each of at least 15 counties. To qualify for the 30-day cure period, a committee is required to turn in petitions with at least 75% of the required 89,151 signatures of registered voters and 75% of the required minimum numbers of signatures from at least 15 counties.
The Arkansas Tourism Alliance committee -- largely financed by the Cherokee Nation Businesses -- opposes the proposed ballot measure of the Fair Play for Arkansas 2022 committee -- which is largely financed by the Choctaw Nation of Oklahoma.
An attorney representing the Arkansas Tourism Alliance, Cherokee Nation Businesses LLC and Legends Resort and Casino LLC asked the state Board of Election Commissioners in a brief to deny certification of the popular name and ballot title for the proposed constitutional amendment that is aimed at removing Pope County as a casino site.
Amendment 100 to the Arkansas Constitution -- approved by voters in November 2018 -- authorizes the state Racing Commission to issue four casino licenses.
The licenses are authorized for expanding gambling operations at Oaklawn Racing and Gaming in Hot Springs and Southland Casino Racing in West Memphis, and for casinos in Jefferson and Pope counties with the endorsement of local officials.
Casinos are currently operating in Hot Springs, Pine Bluff and West Memphis.
In November, the Pope County casino license was handed to Cherokee Nation Businesses to build Legends Resort & Casino after the Arkansas Racing Commission ruled to nullify the license previously awarded to Gulfside Casino Partnership. The Pope County casino license has long been a source of turmoil for the county and the state, resulting in numerous court cases. On July 11, the Russellville Planning Commission approved the proposed project.
Attorney Bart Calhoun, representing the Arkansas Tourism Alliance, Cherokee Nation Businesses LLC and Legends Resort and Casino, wrote in a brief that despite the popular name and ballot title "asserting that the proposed amendment repeals authorization for casino gaming in Pope County, the proposed amendment does no such thing.
"Rather, the proposed amendment is merely prospective," he wrote. "It simply strikes language authorizing the [Arkansas Racing Commission] to issue a license to another entity to operate casino gaming in Pope County in the future."
The proposed constitutional amendment contains no language rendering gaming in Pope County illegal, he said.
"Similarly, the proposed amendment [and the popular name and ballot title] does not state that a license has been issued or that it voids or revokes any license," Calhoun wrote in his brief.
Thus, the popular name and ballot title are misleading as they both represent to voters that casino gaming will be repealed in Pope County when, in fact, that is simply not the case, he said.
"And further fatal, Amendment 100 expressly authorizes casino licensees, like CNB/Legends, to conduct casino gaming," Calhoun said. "Nothing in the proposed amendment alters that provision."
In addition, the popular name and ballot title are misleading because although they purport to repeal casino gaming in Pope County, they do not disclose numerous material facts necessary for voters to make an informed decision, including the failure to disclose that the casino gaming license has been issued, he said.
But attorney Elizabeth Robben Murray, representing the Fair Play for Arkansas 2022 committee, said in a brief that "undoubtedly CNB/Legends' opposition to the proposed amendment's ballot title arises out of its own self interests: each argument in the brief centers on its issued (but still litigated) license for a casino and to conduct casino gaming in Pope County.
"The fundamental problem with this position, however, is CNB/Legends is not entitled to a ballot title that best represents its interests," she wrote.
Voters are entitled to a ballot title that is intelligible, honest and fair so that they can make an informed decision about the issues and the scope and significance of the proposed changes in the law, Murray said.
The popular name and ballot title for the proposed constitutional amendment clearly convey the measure's intent and are not misleading, she said.
"Voters who vote 'FOR' the amendment will understand that they are voting to repeal authority under Amendment 100 for casinos and casino gaming in Pope County," Murray said. "This is all that the law requires at this stage."
The state Board of Election Commissioners should decline Cherokee Nation Businesses/Legends' invitation to go further and make determinations about the measure's merits and what impact the proposal may have on Cherokee Nation Businesses/Legends' own interests, she said.
The status of the Cherokee Nation Businesses/Legends license is a matter for the court to decide after voters approve the proposed constitutional amendment in the coming election, Murray said.
But Pope County Judge Ben Cross said in a letter to the state Board of Election Commissioners that the Choctaw Nation is attempting to undermine and deprive Pope County of the single biggest economic development investment in more than 50 years.
"Pope County and the State of Arkansas could stand to lose over 1500 new jobs, $250 million in construction development, millions in new tax revenue to fund infrastructure repair, and a $38.8 million dollar economic development agreement, (EDA), executed between CNB/Lgends and Pope County," he wrote. "The EDA alone represents not only entities of local government, but also establishes an endowment of over $2 million dollars every year in perpetuity in support of our local non-profits."
Attorney Stephen Lancaster, representing the Responsible Growth Arkansas committee, said in a brief the state Board of Election Commissioners should approve the popular name and ballot title of the committee's proposed ballot measure that would legalize recreational marijuana because they meet the requirements under Arkansas Code Annotated 7-9-11 (i) (3).
The popular name and ballot title are not misleading because they provide all the information a voter needs to make an informed decision about the proposed amendment, and neither the popular name or the ballot title is designed in a way that tricks voters into casting a vote contrary to the voter's intentions, he wrote in his brief.
According to the state Board of Election Commissioners' website, the board includes:
• Its chairman, who is Thurston.
• Sebastian County Clerk Sharon Brooks, a governor's designee.
• James Harmon Smith, III, state Democratic Party designee.
• Bilenda Harris-Ritter, state Republican Party designee.
• Wendy Brandon, Senate President Pro Tempore designee.
• William Luther, House speaker designee.
• Jamie Clemmer, a governor's designee.