Monday, July 21, 2014

Lawyer says statewide alcohol petitions invalid

Posted By on Mon, Jul 21, 2014 at 4:38 PM

ALCOHOL SALES PETITIONS
  • ALCOHOL SALES PETITIONS

Elizabeth Robben Murray,
a Friday Firm lawyer and veteran of ballot initiative battles, wrote the secretary of state today in behalf of a committee that opposes a statewide vote on the sale of alcohol in Arkansas.

In a letter for the Let Local Communities Decide for Themselves committee, Murray said the Arkansas Constitution provides that initiative petitions for statewide ballot measures must be submitted not less than four months before the election. The petitions were submitted July 7. The election is Nov. 4. She said the Constitutional provision is "self-executing," thus not dependent on statutory provisions.

Murray wrote that the petitions failed to meet the deadline and the office should refuse to certify the measure. She also wrote the office should consider no additional signatures.

The proposal to allow retail alcohol statewide is being backed by an as-yet unspecified group of retailers who back a committee Let Arkansas Decide. The group submitted about 85,000 signatures July 7, needing 78,133 of registered voters. Late last week, the secretary of state said the drive was short by 17,133 and gave the group 30 days to gather them.

The opinion from Murray also has implications for the drive to put an initiated act on the ballot Nov. 4 to raise the minimum wage from $6.25 to $8.50 an hour by 2017. That drive submitted petitions July 7 as well. It needs 62,507 signatures and it also fell short and was given 30 days to obtain more signatures.

David Couch, attorney for the alcohol measure, contends that, by statute, when a legal deadline falls on a holiday or weekend (July 4 was a state holiday and state offices were closed), then the deadline is extended to the next business day, or July 7.

The July 7 deadline was set and published in the election calendar issued by Secretary of State Mark Martin, so if a legal contest arises on this issue, his office seems likely to have to join in the defense.

I asked Murray who was backing her effort. She said organizational papers would be filed "in a timely manner."

I'd reported previously that Friday Firm lawyers had been receiving papers related to the alcohol drive. Some religious organizations typically oppose most alcohol measures, but the business interest with the greatest stake in the battle are so-called "county line liquor stores," which enjoy rich sales from businesses in counties neighboring dry counties with big populations. Such operations can be found statewide, because about half of Arkansas's 75 counties are dry. But significant operations can be found on the Saline and Faulkner borders in Pulaski County, in Conway County and in Greene and Poinsett Counties, among others. Local option petition campaigns are underway in Saline, Faulkner and Craighead counties, but they operate under different deadlines than the statewide initiatives. The Faulkner petitions haven't been submitted yet.

UPDATE: It's more than the county line liquor stores owners. I've gotten a copy of a letter sent by the Arkansas Beverage Retailers Association, representing all liquor stores. It says a committee is organizing to fight the proposal. It said it would be "catastrophic" to "county line" stores, but also have "dire consequences" for existing stores in wet counties because major retailers such as Walmart, Target and Walgreen could enter the business in competition (actually, not without a change in another law that prevents chain-store ownership of liquor stores). The letter announces a mass meeting July 22 and also says the committee will be Let the Local Communities Decide for Themselves, the name of the committee Murray said she represented. UPDATE: An industry source says only a small percentage of the state's 450 liquor stores belong to the association and owners of Conway County liquor stores lead the group.

This potential for increased competition, precisely, is why alcohol consumers would be inclined to favor the measure.)

Here's the letter.

The Republican Party has been monitoring the minimum wage campaign because it's expected to be a key campaign tool in the November election. Democrats favor it. Republicans oppose an increase in the minimum wage.

Here's the relevant constitutional language:

Initiative petitions for state-wide measures shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon; provided, that at least thirty days before the aforementioned filing, the proposed measure shall have been published once, at the expense of the petitioners, in some paper of general circulation. 

And as to execution:

This section shall be self-executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people.


Here are deadlines published by Mark Martin's office.
The Arkansas Code is clear in, for example, election laws in saying this:

If an election law deadline occurs on a Saturday, Sunday, or legal holiday, the deadline shall be the next day which is not a Saturday, Sunday, or legal holiday.

But a statute can't amend the plain language of the Constitution. The Supreme Court is often presented with plain language challenges and sometimes finds ways around the seeming dictates of such language. This could be interesting. And high stakes. And if the liquor stores succeed in derailing the amendment, they'll have Mark Martin to thank.

The secretary of state's office said it had received the letter and is reviewing it.

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