The Arkansas Senate voted down a bill Wednesday evening that would require a 67% popular vote for passage of constitutional amendments, a change that would make it all but impossible for Arkansans to change their constitution if it should pass.
A number of Republicans joined Democrats in opposing the bill, or did not cast a vote. It could still come back for another vote before the session ends on April 16.
Senate Bill 586, by Sen. Jim Dotson (R-Bentonville) and Rep. Jimmy Gazaway (R-Paragould), would be a stunning power grab by the Legislature if it were to pass. The bill effectively challenges a 75-year-old Arkansas Supreme Court precedent that says constitutional amendments approved by voters can’t be changed or repealed by the Legislature.
If SB586 were to become law, and if the state Supreme Court allowed it to stand, the Legislature seemingly would have the power to change or repeal any number of constitutional amendments previously authorized at the ballot box, including the 2016 medical marijuana amendment and the 2018 casino amendment.
Even if a citizen-initiated ballot initiative somehow managed to secure a 67% supermajority of the vote in the future, legislators could later simply rewrite the measure themselves, or throw it out entirely.
As radical as that sounds, the idea has been endorsed by Attorney General Tim Griffin. In November, Dotson requested an opinion from Griffin about whether the Legislature has the authority to amend an initiated constitutional amendment by a 2/3 vote.
The Supreme Court said “no” to that question in a 1951 decision, Arkansas Game and Fish Commission v. Edgmon. But in his response to Dotson, Griffin said he believed the decades-old decision was “erroneous” and thought today’s state Supreme Court would overturn the ruling based on the plain language of the constitutional provision that created the ballot measure process.
That issue is at play in a case currently before the Arkansas Supreme Court regarding relatively minor changes that the Legislature made to Amendment 98, the medical marijuana amendment. (For more on that case and the colorful 1951 precedent behind it — which concerns a bounty on “wolf scalps” by the Arkansas Game and Fish Commission — read reporter Neal Earley’s fine story in the Arkansas Democrat-Gazette.)
Sen. Clarke Tucker (D-Little Rock) delivered a scathing speech against the bill on the Senate floor Wednesday. He noted that Arkansas voters soundly rejected a proposal in 2022 that would have imposed a 60% supermajority threshold for passage of future constitutional amendments.
“This goes even further,” he said. “If you vote for this bill, we know for certain we are contravening the will of the people of Arkansas.”
Tucker quoted from the 1951 Supreme Court decision, which said it would be “inconceivable” that the state’s ballot measure process would give the Legislature the ability to change or repeal constitutional amendments approved by voters.
“It’s illegal, it’s bad policy and it’s not supported by the people of Arkansas,” Tucker said of Dotson’s bill.
SB586 failed in the Senate 13-13, with seven senators in the 35-member chamber not voting. The “no” votes included reliably partisan Republicans, such as Breanne Davis of Russellville and Jonathan Dismang of Searcy, along with more iconoclastic Republicans like Bryan King of Green Forest and Jimmy Hickey of Texarkana. Here’s the vote count.
