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A user's guide to Arkansas ballot issues

The good, the bad and the disqualified.

by and


Issue 1: Tort reform

This measure has been disqualified by the Arkansas Supreme Court, and votes for or against it will not be counted. It may still appear printed on ballots.

Popular Name: "An Amendment Concerning Civil Lawsuits and the Powers of the General Assembly and Supreme Court to Adopt Court Rules"

Obit: On Oct. 18, the Arkansas Supreme Court upheld a lower court ruling that struck Issue 1 from the ballot, handing a defeat to the state Chamber of Commerce and other business interests. The proposed amendment, which was referred to voters by the legislature in 2017, was the latest iteration of so-called "tort reform." It would have capped the dollar amount of punitive and noneconomic damages that may be awarded in a civil lawsuit, such as a medical malpractice case. (Noneconomic damages are awarded for harms that are hard to quantify, such as pain and suffering.) It would have also capped contingency fees for attorneys in civil suits. And, it would have stripped a good deal of power from the judicial branch by allowing the legislature to have final say over rules of pleading, practice and procedure in state courts.

If that sounds like a lot to include in one package, well, that was exactly the problem. In September, Pulaski County Circuit Judge Mackie Pierce ruled that Issue 1 was unconstitutional "logrolling" in that it was actually multiple proposals under a single title. A majority of the Supreme Court justices agreed that the sections of the amendment were not "reasonably germane" to each other. Look for the Republican state legislature to refer a more stripped-down proposal as soon as the next election cycle in 2020.

The death of Issue 1 is a loss for big business, nursing homes and other health care interest groups. It's a win for trial lawyers — and also for anyone who could find themselves in need of a lawyer to fight some powerful interest in court. Which means, simply, anyone.


Issue 2: Voter ID

Popular Name: "A Constitutional Amendment Adding as a Qualification to Vote that a Voter Present Certain Valid Photographic Identification When Casting a Ballot in Person or Casting an Absentee Ballot"

What it does: Issue 2 would enshrine a requirement in the state Constitution that Arkansans present photo ID when voting. People without photo ID could still cast a provisional ballot (which might or might not be counted). The state would be required to issue IDs free of charge to voters who don't otherwise have them.

Why it matters: Yes, Arkansas already has a voter ID law, but statutes can be overturned by the courts. A constitutional amendment is more impregnable.

A brief history: In 2013, the GOP-controlled legislature passed a law requiring voter ID. Its legality was challenged and the state Supreme Court struck down the law in 2014. Emboldened by big electoral wins in the intervening years (and a series of retirements on the court), the Republicans passed a second voter ID statute in 2017, making sure this time to address a procedural technicality that had helped derail the 2013 law. But the 2017 legislature also referred Issue 2 to voters for the 2018 ballot, just in case the new statute didn't survive another court challenge.

That "belt and suspenders" approach, as one lawmaker put it at the time, is a good indication of how important the issue is to Republicans, who appear convinced fraud at the ballot box is rampant (or have more cynical aims). Research points in the opposite direction. Voter impersonation, the specific type of fraud that ID laws seek to address, appears to be virtually nonexistent. Meanwhile, voter ID requirements tend to disproportionately disenfranchise elderly, black and Latino voters and may depress turnout generally.

Will passage of Issue 2 change much on the ground in future elections? It's not clear. First, though the 2017 statute was initially blocked by a circuit judge earlier this year, the Supreme Court overturned that ruling in October, meaning the law remains in place. (So, make sure to bring your ID to the polls this year.) Second, the amendment requires the legislature to flesh out important details, such as establishing exceptions to the ID law and specifying a process for resolving provisional ballots. We're betting the 2019 legislature won't make voting easier, but we'll be happy to be proved wrong.

Issue 3: Term limits

This measure has been disqualified by the Arkansas Supreme Court, and votes for or against it will not be counted. It may still appear printed on ballots.

Popular Name: The Arkansas Term Limits Amendment

Obit: The state Supreme Court blocked Issue 3 from the ballot on Oct. 19, just three days before early voting began. The amendment would have imposed stricter term limits on state legislators: six years for members of the House of Representatives (served in three two-year terms) and eight years for members of the Senate (served in two four-year terms). No member of the General Assembly could serve more than 10 years.

Issue 3 would have restored the limits that were created by a voter-approved amendment in the '90s and later undone by Amendment 94, which the legislature referred to voters in 2014. That measure, which was advertised as an "ethics amendment," imposed limited ethics reforms for elected officials but also loosened term limits and increased legislative pay. Today, lawmakers may serve 16 years in either chamber or cumulatively in both. Under some special circumstances, a legislator may serve up to 20 years.

A special master appointed to review petition signatures on the voter-initiated measure found in September that it was short of the required number by nearly 15,000, due in part to severe restrictions placed on paid canvassers by a recent law designed to limit petition drives. The justices were split 4-3 on whether to throw out the proposed amendment. The decision was a win for the state Chamber of Commerce, which filed the lawsuit to disqualify Issue 3 from the ballot.


Issue 4: Casinos

Popular Name: "An Amendment to Require Four Licenses to be Issued for Casino Gaming at Casinos, One Each in Crittenden (to Southland Racing Corporation), Garland (to Oaklawn Jockey Club, Inc.), Pope, and Jefferson Counties"

What it does: Issue 4 would authorize two brand-new casinos, one near Russellville and one near Pine Bluff. It would also allow the state's two existing gambling houses — which are attached to the Oaklawn and Southland racetracks in Hot Springs and West Memphis — to become true casinos. Oaklawn and Southland would see a big windfall from an effective tax cut.

Why it matters: Issue 4 represents an alliance between in-state and out-of-state gaming interests, who seek to enlarge the gambling pie for everybody. Well, as long as "everybody" means "everybody who runs a casino." For the rest of us, the benefits are a bit more uncertain.

Right now, Arkansas has two quasi-casinos, which operate next to the greyhound track at Southland and the horse track at Oaklawn. State law now only allows electronic "games of skill" at racing tracks. Issue 4 would allow "any game played with cards, dice, equipment, or any mechanical, electromechanical or electronic device or machine ... as well as accepting wagers on sporting events." Applicants seeking to operate a casino in Pope and Jefferson counties would have to submit letters of support from the county judge or a quorum court resolution of support. The Pope County Quorum Court has asked the county judge to withhold support if Pope County voters reject the amendment in the general election on Nov. 6.

Driving Arkansas Forward, led by former Democratic state Rep. Nate Steel, proposed the casino amendment. The Cherokee Nation and Quapaw Nation of Oklahoma, which operate casinos on their tribal land, are heavy contributors to the campaign. Issue 4 has survived two state Supreme Court challenges, one alleging that by issuing licenses to Oaklawn and Southland the amendment would create unconstitutional monopolies and the other that the ballot title was insufficiently clear.

Originally proposed as a way to generate money for highways, the proposal was later changed to send more than half of the tax revenue generated by the casinos to the state's general fund. The Arkansas Department of Transportation has distanced itself from advertising that it said continued to suggest revenues would be dedicated to roads. The revenue distribution would be 55 percent to the state general fund, 27.5 percent to local government and 17.5 percent to the Arkansas Racing Commission for racing purses at Oaklawn and Southland. The amendment sets aside $200,000 a year for programs to treat compulsive gamblers. An analysis by the state Department of Finance and Administration has found Issue 4 would result in Oaklawn and Southland paying less to the state and more to purse money, counties and cities.

Supporters maintain the casinos will bring in thousands of new jobs and billions of dollars over the next decade, estimating yearly tax revenues at $120 million. They also say it will keep gambling dollars now going to Mississippi in Arkansas. Opponents dispute the economic figures the proponents have forecast, saying the casinos will only soak the poor and enrich out-of-state casino operations, not Arkansas communities. Those opposed to Issue 4 include religious conservatives like the Family Council but also others concerned about the social cost and regressive economics of increased gambling.

Voters have rejected casino gambling bids three times, in 1984, 1996 and 2000. The state Supreme Court disqualified two proposals, in 2012 and 2016, based on ballot title deficiencies, voter signatures and the inclusion of sports betting, which was illegal under federal law at the time. (In May, a U.S. Supreme Court decision eliminated the federal restriction.)


Issue 5: Higher minimum wage

Popular Name: "An Act to Increase the Arkansas Minimum Wage"

What it does: Issue 5 incrementally raises the state minimum wage from $8.50 an hour to $11 an hour over three years. The rate would rise to $9.25 an hour starting Jan. 1, 2019; $10 an hour on Jan. 1, 2020; and $11 an hour on Jan. 1, 2021.

Why it matters: On Oct. 18, days before early voting was to begin, the Arkansas Supreme Court ruled that Issue 5 will remain on the ballot. The initiated act overcame a legal challenge led by Randy Zook of the Arkansas Chamber of Commerce, who argued that petition signatures were insufficient. A special master disagreed and the Supreme Court unanimously upheld his findings.

Arkansans for a Fair Wage, which had the support of Arkansas Advocates for Children and Families, Arkansas Community Organizations, the Arkansas Hunger Relief Alliance and other groups, as well as restaurant owner and Little Rock City Director Capi Peck, argued that people working for the minimum wage could not keep up with the cost of living and instead had to rely on such government support as food stamps. They also noted that workers earning a higher wage will be able to buy more from local businesses and that those businesses will experience reduced turnover rates and better customer service. Research by the National Employment Law Project found that the increase would improve the quality of life for 300,000 Arkansans in all 75 counties.

Republican political leaders, including Governor Hutchinson, Lt. Gov. Tim Griffin and U.S. Reps. French Hill, Bruce Westerman and Rick Crawford, have gone on record as opposing a raise in the minimum wage, with Hutchinson quoted in a state newspaper as saying it would be a "job killer for our youth" and that implementing raises over three years "is playing with fire" because of an unknown economic future. National studies, however, do not support that position; for example, a 2018 University of California study found that minimum wage increases in six states had no impact on jobs in the restaurant industry, which typically employs younger workers. Another national study, conducted in 2006, found that small business income and employment grew faster in states with minimum wages higher than the federal figure of $7.25.

In response to the stagnant federal minimum wage, 21 states, including Arkansas, and the District of Columbia, have raised their minimum wage since 2014. Eight are tying their minimum wage to cost-of-living increases: Arizona, California, Colorado, D.C., Maine, Massachusetts, New York and Washington state. By 2021, when Issue 5 would raise the state's minimum wage to $11, California's will be $14, Colorado's will be $12 and D.C. will be at $15.

No Supreme Court justices dissented from Justice Karen Baker's ruling upholding the legality of the petition for the initiated act.

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