The Secretary of State's Office will soon start counting thousands of voter signatures it originally considered invalid after an Arkansas Supreme Court ruling agreed with a referendum campaign that they should be counted.
A timeline for when the office would complete their count on a referendum petition regarding
was not available, though election officials said they would resume the counting before the end of December.
If enough voter signatures were collected, the
would be placed on the November 2020 statewide ballot for voters to decide whether to keep or repeal the law.
The Two Laws Behind the Lawsuit
In early March, the Arkansas legislature approved
. The election law changed when campaigns had to submit written statements from paid signature canvassers swearing they've never been convicted of crimes that would prevent them from doing the job under Arkansas law.
Previously, those statements could be turned in with the signatures. Act 376 now requires they be submitted to the Secretary of State's Office before canvassers collect any signature. An emergency clause was included in Act 376, which made the law to go into effect as soon as the governor signed the bill.
Later in March, the legislature approved Act 579 after contentious debate. This new law would allow optometrists to perform certain eye surgeries that previously had been allowed only by medical doctors. Act 579 did not include an emergency clause, which went into effect July 24, 2019.
The First Signature Count
Referendums on newly-passed Arkansas laws require at least 53,000 voter signatures to place the matter on the statewide ballot. The number represents 6% of the number of people who voted for governor in the last election.
The petitions must be filed with the Secretary of State's Office no later than 90 days after the final adjournment of the session at which the act was passed.
The Arkansas General Assembly adjourned April 24, 2019. Safe Surgery Arkansas submitted 84,144 signatures on July 23, a day before the eye-surgery law went into effect.
Within hours, the Secretary of State's Office indicated it had rejected thousands of signatures because of the new canvasser paperwork rule. The Office declared there to be only 23,953 valid signatures.
The Supreme Court Case
Attorneys for Safe Surgery Arkansas filed a lawsuit with the Arkansas Supreme Court in August, arguing that the emergency clause was defective because there was no real emergency. The attorneys also argued the new law was unconstitutional.
The state and supporters of Act 376 disagreed and said the Secretary of State correctly followed the law. An emergency did exist: avoiding confusion in petition circulation. They also argued that Safe Surgery Arkansas should have first filed its lawsuit in a lower court.
On Dec. 12, a divided Arkansas Supreme Court ruled in favor of Safe Surgery Arkansas. The majority agreed that the emergency clause was not "responsive to some real-life circumstance making immediate legislative enactment 'necessary for the preservation of the public peace, health and safety,' as contemplated by article 5,
§1 of the Arkansas Constitution."
The court declined to take a stance on the constitutionality of Act 376 or the wording of the ballot title, and refused to require the measure be added to the 2020 ballot immediately.
The court's vote was split 4-3. Writing for the dissent, Justice Shawn Womack said he disagreed with the majority's position on the emergency clause.
"It is a necessary element of timing to ensure that future petitions are treated equally so that some petitions are not governed by one set of rules while others in the same election cycle are governed by a different set of rules and to avoid the public confusion that would derive from such a scenario," the dissent states.
The court should give deference to the legislature about whether an emergency exists. That everyone may not agree is not a test for determining the validity of an emergency clause, the opinion states.
Arkansans for Healthy Eyes
, which intervened in the case in support of Act 579, posted on its Facebook page earlier this month that they were reviewing the court decision and "considering possible legal options ..."