Revising direct democracy ballot measure to meet Arkansas law balancing act, drafter says

The authors of a proposed constitutional amendment to protect Arkansas’ direct democracy process are still revising their measure following the attorney general’s rejection of their original draft last week.

Arkansas Attorney General Tim Griffin said he could not certify The Arkansas Ballot Measure Rights Amendment because it failed to meet the eighth-grade reading level standard set in a new law. 

Act 602, which became law in April, prohibits the certification of a proposed ballot title with a reading level above eighth grade as determined by the Flesch-Kincaid Grade Level formula. The test uses word complexity and sentence lengths to calculate what grade of education is needed to comprehend written material.  

During a virtual press conference Tuesday, Jennifer Waymack Standerfer, a Northwest Arkansas lawyer and drafter of the measure, said it’s difficult to meet both the reading level provision and a requirement to not be misleading because the formula used to calculate the reading level assigns a higher grade to more complex words that she said are needed to properly convey the intent of the measure, such as “fundamental right.”

“If I say right instead of fundamental right, there’s a lot less syllables there and that drops my readability score, but I’m not being as transparent and open and honest with the public about what we’re actually doing,” Standerfer said. “The courts bounce around about rights and fundamental rights.” 

Sponsored by the Protect AR Rights coalition, the proposed measure would amend Article 5 Section 1 of the Arkansas Constitution, the section that governs the state’s initiative and referendum process. It would designate as a “fundamental right” the right of voters to propose laws and constitutional amendments that can be put to a statewide vote.

Asked if breaking the proposal’s several sections into separate ballot measures would make it easier to meet the reading level standard, Emma Olson Sharkey, a partner at the Elias Law Group who specializes in voting rights and citizen-led ballot initiatives, said it’s not necessarily the amount of policies or changes that are involved.

“It is the way that they’re described, and even just that simple change (right vs. fundamental right), which would mean a lot to the people of Arkansas, wouldn’t meet the standard that the Legislature has set, which is, in my view, ridiculous,” Sharkey said. 

Among its various provisions, the measure would require petition signatures be gathered from at least 15 counties instead of 50 and would explicitly prohibit the Arkansas General Assembly from amending or repealing a constitutional amendment approved by voters.

Coalition members may consider removing some provisions and editing other language to meet the reading level requirement, Standerfer said. The drafting process has become a balancing act of meeting statutory requirements while also staying true to the intent of the measure, she said.

“All of the policies that we have in here are really, really crucial and really, really important, and if the Legislature is putting requirements on us that make us sacrifice content, then that is impeding upon the people’s rights to legislate,” Standerfer said. “They don’t get to tell the people what content they get to legislate in law.”

Legislative prerogative?

Various court interpretations of the Arkansas Constitution have said state lawmakers can amend an initiated act by a two-thirds majority vote, but not an amendment, Standerfer said. 

“That being said, the case that says that essentially says ‘well, we know what the Constitution says, but they couldn’t have possibly meant that, that’s crazy,’” Standerfer said. “There are some lawyers who are concerned the current Supreme Court would reverse itself, and because of that and the concerns that have been raised, additional clarity to restate the law as it exists now is warranted and appropriate.”

In an attorney general opinion issued in November, Griffin said the Arkansas Supreme Court in 1951 reasoned that the plain language of Amendment 7 gives the General Assembly the power to amend citizen-initiated constitutional amendments. But the court departed from the text because it didn’t believe it was voters’ intention to give lawmakers that power, he said. 

“In my opinion, that decision employed an erroneous form of reasoning and was wrongly decided,” Griffin wrote. “If this issue were raised today, I believe the Supreme Court would overturn that case and hold that the plain language controls.” 

During this year’s legislative session, lawmakers proposed a bill that would have granted this authority to the General Assembly, but it died in the House. 

Two direct democracy proposals

Legislators were successful, however, in passing several laws changing the state’s initiative and referendum process, which prompted direct democracy-related ballot proposals from Protect AR Rights and the League of Women Voters of Arkansas. 

Direct democracy is the process through which Arkansans can propose new laws or constitutional amendments and put them to a statewide vote. Arkansas is one of 24 states that allows citizen-led initiatives, according to the National Conference of State Legislatures.

The League’s measure was rejected three times, including once for failing to meet the eighth-grade reading level requirement. Griffin substituted and certified the popular name and ballot title so it met the reading level requirement on May 21. That means the League can begin gathering signatures to try to place their measure on the 2026 ballot. The nonpartisan group will officially launch its statewide signature collection campaign Friday in Fayetteville.

The organization also filed a lawsuit in April that challenges several of the new direct democracy laws. Protect AR Rights filed a motion to intervene so the coalition can challenge additional laws not included in the original lawsuit, including the reading-level law. 

Both the League and the state argued in their responses to the motion that Protect AR Rights lacks standing and is not entitled to intervene in the case. 

In the meantime, drafters of Protect AR Rights’ ballot measure are continuing to solicit public input and hope to resubmit their revised proposal in the next week or so, Standerfer said. The attorney general’s office declined the coalition’s request for a meeting for feedback because of the pending litigation, she said. 

While the proposed ballot measures from Protect AR Rights and the League of Women Voters of Arkansas have the same general goal of preserving Arkansans’ rights to propose laws and constitutional amendments, they do conflict in some areas, Standerfer said. Because of that, if both qualify for the ballot and are approved by the voters, the one with the most votes would become law, according to the state Constitution, she said.