Arkansas Supreme Court
this afternoon speedily granted, without explanation, the state's request for dismissal of David Couch's
complaint that Attorney General Leslie Rutledge
had refused to approve — or make necessary changes to approve — the form of a proposed constitutional amendment to strengthen the state campaign finance and ethics law.
Couch, who represented a group that hoped to gather signatures on petition, asked for an expedited hearing. The attorney general said in an earlier motion that his proposals had been properly rejected because they were misleading and sufficiently flawed that the attorney general was not required to provide substitute language to make the ballot title acceptable.
Rutledge had said, among others, that Couch didn't sufficiently explain in the title the differences in law his petition would make. Interestingly, she focused in part on "dark money," which was spent copiously to elect Rutledge. She said Couch's amendment might make you think there were no disclosure requirements on dark money. There are some, but they are limited and don't include disclosure of sources of campaign spending by independent gtroups.
This is the state petition the court granted.
In an unsigned order, the Supreme Court denied Couch's request for a preliminary injunction and temporary restraining order and dismissed his petition. Justice Paul Danielson
would have granted the petition.
What this decision means is that the Attorney General in her sole discretion can decide if a ballot title is misleading and refuse to write a ballot title. A sponsor is then without any remedy if he disagrees. This type of unchecked discretion is dangerous and unconstitutional under the United States Constitution. While today it is Ethics Amendment that has been denied the opportunity to get on the ballot so that the voter of Arkansas can give it a thumbs up or down - tomorrow it may be some other issue or some other Attorney General. This is a very slippery slope.
Judd Deere, a spokesman for Rutledge, said:
“The Attorney General takes very seriously her responsibility to certify or reject ballot titles and is pleased with the decision from the Arkansas Supreme Court to dismiss Mr. Couch’s petition. She was confident that Mr. Couch misread the statute. Attorney General Rutledge’s response to Mr. Couch’s ballot title proposal was timely, as has always been the case since she entered office. The ballot title was rejected because it was misleading, and it is important that voters understand proposals on which they are voting. Mr. Couch, of course, may resubmit a revised ballot title.”
The ruling today has killed the amendment for this cycle. To make the ballot it would have had to be published by June 8 in a newspaper. The attorney general's office has determined it has 10 business days — rather than 10 days as the statute says — to pronounce on ballot sufficiency. That means if Couch wrote and submitted a new proposal by tomorrow, May 20, he'd be hard against deadline to get the amendment to a newspaper for publication.
"We will resubmit it to get it approved for the 2018 ballot, which happens to be the time she'll be up for re-election," Couch said. But he complained that the decision today — though unexplained — runs counter to precedent against unfettered discretion in deciding ballot access. He said if problems continue with attorney general review, he'd consider a federal lawsuit..
Dark money has figured in election races by several members of the Arkansas Supreme Court as well as PAC contributions from funds contributed by corporations, another practice Couch's amendment would have outlawed.