This November, Arkansas voters will decide two legislature-referred ballot issues and three voter initiative issues that, if approved, will amend the state’s constitution. This post covers the legislative referrals, Ballot Issues 1 and 2. One caveat is that a lawsuit challenging Issue 1 was filed, the ballot issue disqualified by a judge, and that judge’s ruling appealed.1 Still, at the time of this initial publication, given that a State Supreme Court decision is hanging in the balance, there are five ballot issues, including these two referred by the state legislature, to consider.
Updates (added September 7 and October 14, 2018): On Thursday, September 6, 2018, Pulaski County Circuit Judge Mackie Pierce disqualified Ballot Issue 1, stating that it violated the state’s constitution. In the meantime, voter-initiated ballots have been approved; some were challenged in the courts and one (Ballot Issue 4) then given the green light on October 11, 2018, by the Arkansas State Supreme Court. PB Junction plans another post on one or more ballot issues this election season. In the meantime, check with Talk Business and the UA Agricultural Extension Service for updates.
Issue 1 proposes several changes pertaining to civil lawsuits; in short, this complex issue caps dollar amounts (for plaintiffs and attorneys) and makes it easier for the state legislature (General Assembly) to change court rules and proceedings. Issue 2 proposes an amendment to require photo identification in order to vote.
Both ballot issues are being referred to voters by the General Assembly. Legislative referral is one of two ways that a ballot issue can make it to the ballot; the other method is by voter initiative.2
Overview of 2018 Ballot Issues
This overview highlights key changes to the Arkansas Constitution that these issues propose.3
Issue 1 – An Amendment Concerning Civil Lawsuits and the Powers of the General Assembly and Supreme Court to Adopt Court Rules
Ballot Issue 1, also known as Senate Joint Resolution 8 (SJR8), is known for proposing to limit damages and attorney fees in civil lawsuits. However, it also seeks to increase the General Assembly’s power over rules that courts must follow. All four major sections seek to increase legislative power, whether by allowing the General Assembly to make further changes to these dollar amount caps or by increasing legislative power over court rules in general. Typically, these court rules are largely (almost entirely) a judicial branch power.4
Capping Civil Lawsuit Dollar Amounts
- Attorney contingency fees for legal representation would be capped at 33.33 percent of the net amount of recovery for the plaintiff(s). 5
- The state legislature could, with a two-thirds vote, enact laws that change the maximum percentage for attorney’s contingency fees.
This ballot issue, if approved, would amend a section of the Constitution that refers to worker’s compensation and civil lawsuits against employers. 6 However, all civil lawsuits, not just work-related ones would likely be affected due to past case law on these constitutional provisions. 7
- The amount that employers would to have to pay in punitive damages would be capped at $500,000 or three times the amount of compensatory damages (whichever is greater).
- The amount that employers would have to pay in non-economic damages (e.g.,pain and suffering, mental and emotional distress, loss of life or companiomship, visible result of injury) would be capped at $500,000 for each claimant and $500,000 for all beneficiaries of a decedent.
- The state legislature could, with a two-thirds vote, enact laws that increase the limitations or caps.
Powers to Adopt Court Rules Pertaining to Civil Lawsuits
In Sections 3 and 4 of Ballot Issue 1, the Arkansas Supreme Court’s authority and power to prescribe rules of pleading, practice, and procedure for all courts would be lessened while the state legislature’s power would be increased. Examples of court rules include filing requirements such as filing fee amounts; the number of experts required to testify for a case and the amount of information in experts’ reports; and burden of proof requirements.
- The legislative branch would gain the new power to amend or repeal the Supreme Court’s prescribed rules with a three-fifths, or 60%, vote by both the Senate and the House.8
- The legislative branch would more easily annul or amend court rules by a three-fifths, or 60%, vote of both chambers of the General Assembly, rather than the current two-thirds or 67% vote.9
Conditions and Terms
Sections 5 through 7 address severability, effective date if approved, and ballot title and popular name, respectively. Severability means that, if any portion of this issue is held invalid, the rest will stand.
Issue 2 – 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
Issue 2, also known as House Joint Resolution 1016 (HJR 1016), adds photographic identification to the existing qualifications to vote.10
- Valid photographic identification would be required in order to receive a ballot to vote in person.
- A copy of valid photographic identification, enclosed with the ballot, would be required for absentee ballots.
- The State of Arkansas is to provide photographic identification to those who do not have it, though the mechanism for this is not spelled out here.
- Casting a provisional ballot would be allowed for voters with no photographic identification when they vote.
Section 2 of this ballot issue simply states the ballot title and popular name.
- On July 12, 2018, filed by attorneys for Marion Humphrey, challenges the constitutionality of Issue 1.
- Voter initiative is a process started by a sponsoring group outside the legislature and requires petitions. For more information from the Arkansas Secretary of State, click here.
- For full text, please link to these sources: Agricultural Extension Service (with the University of Arkansas) and Arkansas Secretary of State on initiatives and referenda.
- A lawsuit filed on July 12, 2018, on behalf of plaintiff Marion Humphrey, a retired circuit judge in Little Rock, challenges the constitutionality of this ballot issue. In the complaint filed, plaintiff’s attorneys Jeff Priebe, David Couch, and David Williams argue that the ballot issue unconstitutionally proposes four constitutional amendments in just one ballot issue. They also argue that the issue proposes a fundamental shift in the constitutionally established balance of power without informing voters of such. The lawsuit is filed against the state official who oversees elections, Arkansas Secretary of State Mark Martin.
- This section would amend the Arkansas Constitution, Article 7, Section 53, by adding new language. There is no replacement of existing text here.
- This section proposes to amend the Arkansas Constitution, Article 5, Section 32, by adding new language and replacing some existing text.
- For an example, click this link to a case posted by Justia.
- This section would amend the Arkansas Constitution, Amendment 80, Section 3, by adding new language, not replacing existing text.
- This section would amend the Arkansas Constitution, Amendment 80, Section 9.
- This issue proposes to amend the Arkansas Constitution, Article 3, Section 1, by adding several paragraphs of new text.