Quorum Court hosts special forum on proposed amendments to Arkansas Constitution

While voters may be flocking to the polls to pull the lever for their favorite candidates next month, they may be in for a surprise when asked to vote for the four proposed amendments to Arkansas’s Constitution that have been placed on the ballot this year.

Three of those proposed amendments were created by the Arkansas legislature, with the fourth amendment being proposed by citizens throughout the state via petition. 

To help Baxter County voters better understand the amendments, the Baxter County Quorum Court hosted a presentation by the University of Arkansas System Division of Agriculture’s Public Policy Center during last week’s court session.

“They get together, and research these items, and then put together these voter guides,” said Brad Runsick of the Baxter County Extension Office. “So, when you walk into the polls, you know what you’re looking at. You’ve got a little time to research each of the issues.”

Ballot Issue 1

“An amendment to the Arkansas Constitution to allow the General Assembly to convene in extraordinary session upon the issuance of a joint written proclamation of the speaker of the House of Representatives and the president pro tempore of the Senate or upon the submission of a written proclamation containing the signatures of at least two-thirds (2/3) of the members of the House of Representatives and at least two-thirds (2/3) of the members of the Senate to the speaker of the House of Representatives and the president pro tempore of the Senate requesting that the General Assembly convene in extraordinary session; providing that no business other than the purpose set forth in the joint written proclamation of the speaker of the House of Representatives and the president pro tempore of the Senate or the written proclamation containing the signatures of at least two-thirds (2/3) of the members of the House of Representatives and at least two-thirds (2/3) of the members of the Senate shall be considered at an extraordinary session convened under this amendment; requiring the General Assembly to establish by joint rule during each regular session procedures for an extraordinary session under this amendment; and providing that this amendment does not restrict the authority of the governor to convene an extraordinary session of the General Assembly under Arkansas Constitution, Article 6, §19.”

Under Ballot Issue 1, the Arkansas Legislature is proposing an amendment that would give them the authority to call special meetings of the legislature at any time. Under the current constitution, only the governor has the power to call for special meetings at this time.

If approved, the proposal would amend Section 5 of Article 5 of the Arkansas Constitution, which covers when special meetings can take place. The new section would allow legislatures to call a special session at any time if the House speaker and the Senate president jointly decide to convene lawmakers.

The speaker and the president would set the agenda for the meeting.

A special meeting could also be called if two-thirds of the legislature signs a written proclamation calling for a special session. To reach the two-thirds needed, 67 out of the 100 House representatives would be needed, with 24 of the state’s 35 senators signing on as well.

Since 2000, Arkansas’s Governors have called 17 special sessions that have covered various topics, including tax credits for businesses, income tax cuts, COVID-19 policy, school funding, and resolution of conflicts created by new laws.

“So, right now, only the Governor of Arkansas can call a special session,” said Kristin Higgins, a program associate with the Public Policy Center. “It’s called a special or extraordinary session, but they’re not that special because they happen several times a year. And the difference between this type of session, and the one where our legislators come together in January and February, whether they talk about the budget or they pass laws, is that a special session usually focuses on one or two topics. It’s over and done within 15 days.”

In both cases, those who propose the amendment must state the purpose of convening the special session. Underneath the new rules, lawmakers would also be required to create rules for how these sessions would operate, similar to how they adopt rules for each general session.

Both the speaker and the president would be in charge of determining the special session dates. Legislators would have to allow time to consider additional bills following the special session if there are enough votes.

Arkansas is one of 14 states in the U.S. that grants its governor the ability to call a special session, in the remaining 36 states, both the legislature and the governor can call special sessions.

According to the Public Policy Center, proponents of the amendment claim it will allow the legislature to reign in an out-of-control governor while elevating the legislature to an equal level of government, bringing about a greater balance to the state’s overall government.

Opponents of the bill claim that no change is needed and that the legislature “does enough damage during regular sessions and its perpetual committee meetings.” They also note that the legislature already has the ability to convince the governor to call a special meeting and that the change would convert the legislature into a full-time legislature.

They also note that Arkansas is one of the few states where the legislature can veto the governor by a simple majority and that the governor is appointed by voters throughout the state, while members of the legislature only represent their district.

Ballot Issue 2

“An amendment to the Arkansas Constitution, to be known as the “constitutional amendment and ballot initiative reform amendment”, concerning the number of votes required for approval of certain measures presented to voters; requiring that initiatives proposed under Arkansas Constitution, Article 5, § 1, 18 and constitutional amendments proposed under Arkansas Constitution, Article 19, § 22, and Arkansas Constitution, Amendment 70, § 2, shall be approved when receiving at least sixty percent (60%) of the votes cast on the proposed initiative or proposed constitutional amendment; and requiring that a measure subject to a referendum shall be repealed if the measure is rejected by a majority of the electors voting upon the matter.”

Under the proposed amendment, Arkansas legislators have proposed to increase the percentage of votes required to pass most statewide ballot issues.

Currently, a simple majority of votes are needed for statewide ballot issues to pass and become law. This percentage is described as “50% plus one vote” or a simple majority.

Issue 2 proposes amending the three sections of the Arkansas Constitution governing ballot issues to require a “super majority” vote for constitutional amendments and initiatives to go into effect. Specifically, Issue 2 proposes: 

•     Increasing the percentage of votes required to pass constitutional amendments proposed by citizen groups from 50% to 60%.
•     Increasing the percentage of votes required to pass constitutional amendments proposed by the legislature from 50% to 60%.
•     Increasing the percentage of votes required to pass state laws proposed by citizen groups from 50% to 60%. 

Requirements for citizen-sponsored referendums, which ask voters to decide the fate of existing laws, would remain unchanged and be decided by a simple majority of voters.

“Supporters say its too easy to change the Arkansas Constitution,” Higgins said. “Anyone with money can come in and convince voters to change the constitution to benefit a certain group or certain idea. And then opponents are saying that it could create a minority rule. Forty percent of voters could vote against something and stop it from happening. They also point out that the legislature can still continue to pass state laws with only a simple majority.

Between 2000 and 2020, Arkansas voters considered 40 proposed constitutional amendments and state laws that the legislature and citizen groups had referred to. Voters approved 30 of these ballot issues and rejected the remaining 10 proposals. 

Of the 30 measures voters passed, 18 received at least 60% voter approval. 

This means that 12 of the 30 proposals that Arkansas voters passed in the last 20 years would not have satisfied the proposed 60% voter approval requirement.

Ballot Issue 3

“An amendment to the Arkansas Constitution to create the “Arkansas Religious Freedom Amendment”; and to provide that government may never burden a person’s freedom of religion except in the rare circumstance that the government demonstrates that application of the burden to the person is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling government interest.”

In a unanimous decision during its last court session, the Baxter County Quorum Court found that the proposed amendment was poorly worded and could potentially grant the state more powers to shut down places of worship during declared emergencies.

“I believe that SFR 14 (Arkansas Religious Freedom Amendment) is another overreach by our government,” said Justice of the Peace Dennis Frank after his proposed resolution was read into the record. “It has the potential to curtail one of our basic unalienable rights, and the ballot title misrepresents what is actually in the body of the proposed amendment. Proponents of this issue promote that this amendment will hurt the ability of the government to close places of worship in the case of future pandemics, but it actually does the opposite.”

Earlier this year, the Arkansas Senate and House of Representatives voted to place Issue 3, then known as SJR14, on the 2022 General Election Ballot. The Arkansas Constitution grants the legislature the right to include up to three constitutional amendments on the general election ballot. The fourth constitutional amendment is reserved for citizen-proposed amendments to the Arkansas Constitution.

SJR14 proposed to create the “Arkansas Religious Freedom Amendment” to “provide that government may never burden a person’s freedom of religion except in the rare circumstance that the government demonstrates that application of the burden to the person is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling government interest.”

Supporters of the amendment state that courts and opinions change over time and that the state should use the strongest language to deal with the issue. They also argue that it would create a barrier to infringements on religious freedom at the local level.

On the other hand, opponents against the amendment argue that it is redundant and would place citizens in a weaker position were the issue to be challenged under the First Amendment.

Opponents also say that nothing in the amendment explains what remedies are available to the public should an individual or group adversely impact the rights and liberties of another individual or group.

It should be noted that the amendment provides no definition for what burdens are nor defines what a “compelling government interest” is.

In Arkansas, the issue of religious freedom hasn’t been put forth to voters since 1874, when voters approved Article II, Section 24 of the Arkansas Constitution.

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) in response to a 1990 U.S. Supreme Court case over how to judge and determine the government’s burden on free exercise claims. The RFRA set out to prohibit federal, state, and local governments from substantially burdening a person’s exercise of religion.

The RFRA was found unconstitutional in 1997 by the Supreme Court, which argued that the bill exceeded Congress’ enforcement power as applied to state and local governments. The RFRA is still the law regarding the federal government’s impact on a person’s exercise of religion.

In 2015, Arkansas passed Act 975, which mirrors Congress’ RFRA bill. Arkansas is one of the 20 states to adopt bills mirroring the RFRA.

Ballot Issue 4

“An amendment to authorize the possession, personal use, and consumption of cannabis by adults, to authorize the cultivation and sale of cannabis by licensed commercial facilities, and to provide for the regulation of those facilities.”

Arkansas is one of 15 states where citizen groups can put a proposed constitutional amendment, state law, or veto referendum on the ballot with voter petitions.

Constitutional amendments require verified voter signatures from at least 10% of the people who voted for governor in the last election, with a certain percentage coming from at least 15 counties. In 2022, the total required number was 89,151 voter signatures.

The amendment to decriminalize personal marijuana usage is the only amendment on this year’s ballot to have gone through the court system. After a lawsuit was filed to stop the amendment from being on the ballot, the Arkansas Supreme Court ruled votes cast for or against Issue 4 would be counted on Sept. 22.

The court filing and opinion may be found and read here.

This citizen-proposed amendment asks voters to change the Arkansas Constitution to allow and regulate cannabis, also referred to as marijuana, for non-medical purposes. The proposal also would make numerous changes to add, alter or remove parts of Amendment 98, currently known as the Arkansas Medical Marijuana Amendment of 2016.

For people 21 and older buying marijuana, this amendment would:

Make the possession of one ounce of marijuana for non-medical personal use legal under Arkansas state law for adults while recognizing the drug remains illegal under federal law.

Allow medical marijuana cardholders to purchase non-medical marijuana without that amount counting toward how much they can purchase for medical purposes.

Regarding cultivation facilities that grow marijuana, this amendment would:

• Allow licensed cultivators to grow, prepare, manufacture, process, package, sell and deliver marijuana to dispensaries for non-medical purposes.
• Grant owners of eight existing medical marijuana cultivation facilities a second license to grow marijuana for non-medical sales. These facilities do not limit the number of plants they can grow at any time.
• The state must issue 12 additional marijuana cultivation licenses for growing non-medical marijuana. Cultivators that receive these new licenses could not grow more than 250 plants at one time and could not sell their product for medical marijuana use. The licenses would be issued via a lottery system.
• Regarding dispensaries selling marijuana to the public, this amendment would
• Automatically give the existing 40 medical marijuana dispensaries a license to sell marijuana for non-medical uses at their current location starting March 8, 2023.
• Automatically give the existing 40 medical marijuana dispensaries a second license to sell non-medical marijuana at another location at least five miles away from any medical marijuana dispensary
• The state must issue 40 additional non-medical marijuana dispensary licenses using a lottery system.
• Allow people to have a financial interest in up to 18 non-medical marijuana dispensaries.
• Allow dispensaries to possess, make, deliver or sell items such as pipes, bongs, rolling papers, roach clips, and other items previously prohibited for them to sell.
• Increase the number of mature marijuana plants a medical marijuana dispensary may grow or possess at one time from 50 plants to 100 plants.
• Require non-medical marijuana dispensaries to purchase marijuana only from state-licensed cultivation facilities and dispensaries.
• Eliminate the ability of dispensaries to accept marijuana seedlings, plants, or usable marijuana from out-of-state dispensaries.
• Eliminate the ability of dispensaries to transfer or sell marijuana seeds, plants, or other usable marijuana to out-of-state dispensaries if federal law ever permits it.
• Eliminate the ability of dispensaries to accept marijuana seeds from out-of-state suppliers.
• For all marijuana cultivation facilities and dispensaries, this amendment would:
• Repeal Arkansas residency requirements for owners.
• No longer require criminal background checks on people who own less than 5% of the business.
• Prohibit the businesses from opening within a certain distance from a facility for individuals with developmental disabilities. This is in addition to existing distance requirements for schools, churches, and daycare centers. Dispensaries must be located at least 1,500 feet away, and cultivation facilities at least 3,000 feet from these institutions.

Related to taxes and licensing fees, this amendment would:

• No longer allow taxes on medical marijuana, which would repeal requirements on how existing state tax revenues are distributed.
• Allow the state to charge an additional 10% sales tax on non-medical marijuana sales at dispensaries. This would result in consumers paying up to 16.5% in state sales tax on non-medical marijuana purchases in addition to any city and county sales taxes on their purchases.
• Require sales tax proceeds from non-medical marijuana sales be used for: (1) paying law enforcement stipends every year, (2) supporting the University of Arkansas for Medical Sciences, (3) funding drug court programs, and (4) contributing to state general funds.
• Require lawmakers to use licensing fees and sales taxes from non-medical marijuana sales to pay the cost of regulating the marijuana program by state agencies.

If approved by voters, this amendment also would:

• Remove a requirement that food or drinks combined with marijuana for medical purposes not exceed 10 milligrams (10 mg) of active tetrahydrocannabinol (THC) per portion. THC is the main psychoactive compound in cannabis.
• Remove the authority lawmakers have to change parts of Amendment 98, and instead require any future changes to be approved by voters.
• Delete a section that says the Alcoholic Beverage Control Division establishes advertising restrictions for dispensaries and cultivation facilities related to artwork, building signage, product design, indoor displays, and other medical marijuana-related advertising. The ballot measure would replace that wording with a requirement that the Division establishes advertising restrictions that are “narrowly tailored” to ensure advertising isn’t designed to appeal to children. Packaging also must be child-resistant and designed in a way that doesn’t appeal to children.
• Authorize the Alcoholic Beverage Control Division to issue and renew licenses for non-medical marijuana cultivation facilities and dispensaries, establish labeling requirements, and set other rules and regulations.
• Allow transporters and distributors licensed under Amendment 98 to also deliver marijuana to dispensaries and cultivation facilities selling non-medical marijuana.
• Prohibit cities and counties from creating or changing existing zoning laws in a way to restrict dispensaries and cultivation facilities from operating in non-residential areas.
• Allow cities and counties to hold local elections on whether to allow non-medical marijuana sales within their boundaries.
• Establish that the amendment would not prohibit employers from having drug-free workplace policies or property owners from being able to restrict or prohibit the combustion of cannabis on private property.
• Establish that the amendment would not affect existing laws regarding driving under the influence, activities related to cannabis not expressly authorized by law, or purchase, possession, or consumption of cannabis by minors.

In 2016, Arkansas voters approved The Arkansas Medical Marijuana Amendment of 2016, which established a legal process in the state to grow, sell, buy and possess marijuana for specific medical purposes.

Voters approved the citizen-led ballot measure by a vote of 585,030 (53%) in favor to 516,525 (47%) against. The proposal became Amendment 98 of the Arkansas Constitution.

The first medical marijuana was sold in Arkansas in 2019. In 2021, the state received medical marijuana card applications from 94,142 people. They also note that the taxes raised through the sale of legalized marijuana will benefit the entire state.

Proponents of the amendment say that the bill is a good first step into legalizing marijuana throughout the state of Arkansas and that the majority of people want marijuana to be legal. Opponents say it’s not enough, and that the bill will create monopolies throughout the state, stopping local entrepreneurs from being able to go into business themselves. The amendment also fails to legalize the personal growing of marijuana and could potentially affect Arkansas’s hemp industry.