Arkansas's ballot questions 

A guide to the measures facing Arkansas voters in 2016.


UPDATE, 10/13/16: On Oct. 13, the Arkansas Supreme Court ruled that Issues 4 and 5 (which concerned tort reform and casinos, respectively) were ineligible for the ballot. The court rejected a challenge to Issue 6, meaning the fate of the Medical Marijuana Amendment will be in the hands of voters. A challenge to Issue 7, the initiated act legalizing medical marijuana, was still pending.

The text below has been modified to reflect these developments.

The sad truth is that the state electoral map in 2016 isn't terribly dynamic: Republicans are firmly in control and look to stay that way. The real action this cycle is to be found in the questions to be placed directly before Arkansas voters, three of which were referred to the ballot by the legislature and four of which were initiated by citizen petition.

However, although voters will be presented with seven questions on Nov. 8, two of those measures now have been disqualified by the state Supreme Court. Votes won't be counted on Issue 4 or Issue 5, which were both citizen-initiated proposed amendments to the Constitution. (They'll still appear on the ballot, zombie-like, simply because the ballots have already been printed.) Issue 6 has been deemed eligible by the court, while a challenge to Issue 7 is still pending.

Nonetheless, the 2016 ballot will still be crowded. That could affect voter psychology, according to University of Arkansas political science professor Janine Parry. "It overwhelms people," she told the Arkansas Times. "Because of the density of the proposals, and the density of the language — these are complicated measures — you're probably going to see a lot of ballot roll-off."

Voters, after all, often find themselves pondering a question for the first time while standing in a small booth at the head of a long line. When confronted with a long litany of questions, they may respond by simply skipping them all, Parry explained. Around 20 percent of voters can be expected to "vote for Trump or Clinton and Boozman or Eldridge and maybe a local race or two ... [and] leave a significant portion of the rest of the ballot blank. Sometimes it's called ballot fatigue." The interesting question about ballot issues, she said, is "what people feel like they have enough information to make a decision about and what they leave to everyone else to decide."


Issue 1: Gives longer terms to county officials.

Popular name: "An Amendment to the Arkansas Constitution Concerning the Terms, Election, and Eligibility of Elected Officials" (Full text)

What it does: Currently, elected county officials serve two-year terms. This measure would change those terms to four years for most positions: county judge, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, surveyor and collector. Justices of the peace would still serve two-year terms. It would also prevent county officials from simultaneously holding certain other public positions and would better define laws applicable to both state and local elections in regard to (1) candidates who run unopposed and (2) criminal convictions that bar eligibility for office.

Why it matters: It's an academic question as to whether more frequent elections are better. In theory, shorter terms hold officials accountable by giving voters more chances to weigh in. On the other hand, elections take time and money — and really, how many of us are so heavily invested in county politics that we'd miss voting on the sheriff and the assessor twice as often? We're neutral on this one.

click to enlarge Arkansas Governor Asa Hutchinson - BRIAN CHILSON
  • Arkansas Governor Asa Hutchinson

Issue 2: Ensures the governor retains power when traveling.

Popular name: "A Constitutional Amendment to Allow the Governor to Retain His or Her Powers and Duties When Absent From the State." (Full text)

What it does: Arkansas's Constitution currently says the lieutenant governor assumes the powers and duties of the governor's office whenever the governor travels outside of the state. This amendment would ensure the governor remains in charge.

Why it matters: Once upon a time, it made some sense to have a replacement on hand when the state's chief executive left on a trip. Times and technology have changed, however, and the governor is now easily reachable anywhere. It no longer makes sense to hand off symbolic power to the lieutenant governor in the governor's absence.

This issue arose in 2013 after former Lt. Gov. Mark Darr unexpectedly signed a bill when then-Gov. Mike Beebe was on a trip to Washington, D.C. Beebe had on principle declined to sign the bill — which exempted concealed carry gun permits from the Freedom of Information Act — but he also declined to veto it, meaning the bill would have become law without anyone's signature. Darr, as acting governor for those few days, seized the chance to grandstand and sign the legislation. The practical effect was nil, but it highlighted the silliness of this anachronistic provision. (Our only reluctance about this proposal is that the Arkansas lieutenant governorship is a meaningless post. Why not simply get rid of it altogether?)

click to enlarge The Little Rock Regional Chamber of Commerce - ARKANSAS BUSINESS
  • The Little Rock Regional Chamber of Commerce

Issue 3: Boosts public tax dollars for private businesses.

Popular name: "An Amendment to the Arkansas Constitution Concerning Job Creation, Job Expansion, and Economic Development" (Full text)

What it does: This proposal would remove a cap on the issuance of bonds by the state and loosen rules on the use and service of bonds by local governments.

Why it matters: If you like welfare for corporations, you'll love Issue 3. The measure would remove the limit on general obligation bonds the state can issue to pay for economic development projects, such as the tens of millions in tax credits Arkansas has given to Big River Steel in recent years to coax it into building a major new plant in Northeast Arkansas. Right now, the state can't issue bonds that exceed 5 percent of net general revenue; currently, net general revenue is around $5.2 billion, which means the maximum permissible bond issue is capped at about $260 million. That's a lot of debt — and remember, it's debt financed by tax dollars — but this proposed amendment would allow the state to issue much more than that. The legislators who crafted this proposal say this is all in the name of job creation.

Things get even worse at the local level. In 2015, a Pulaski County judge said grants made by cities to chambers of commerce (or other local economic development institutions) should be considered payments to private corporations, which is prohibited by Article 12 of the state Constitution. One section of this proposed amendment is a response to that suit: It would explicitly allow such payments to resume. The measure would also allow counties and cities to use general tax revenue to service bonds. In other words, this amendment makes it easier for state and local government to steer public money toward private businesses. There's plenty in there for both the left and the right to dislike, which is why we find ourselves in rare agreement with conservative groups like Conduit for Action in arguing for a "No" vote on Issue 3.


Issue 4: Caps medical malpractice damages (i.e., tort reform).

This measure has been disqualified by the Arkansas Supreme Court, and votes for or against it will not be counted.

Popular name: "An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits" (Full text)

What it does: This amendment would have required the legislature to set a cap on the non-economic damages a jury may award in a medical lawsuit. The cap could be lower than $250,000 per defendant. The measure also would have capped attorneys' fees in such suits at one-third of the net recovery awarded in a suit. It did not cap other types of damages.

Why it matters: The measure would have had a chilling effect on lawsuits against medical providers whose patients have been injured (or killed) due to negligence. Non-economic damages are awarded for harms that are hard to quantify, such as pain and suffering — as opposed to the "economic damages" awarded for things such as medical expenses or lost income due to injury. Considering the high cost of litigating malpractice cases, attorneys would have little incentive to take them on if awards were capped at just $250,000. And given our legislature's friendliness to moneyed interests, it likely would indeed set the cap at $250,000, meaning this would effectively be the upward limit on the value of the life of a patient in the eyes of the law. Arkansas's nursing homes were the key players behind this measure, having poured hundreds of thousands of dollars into getting it on the ballot. Attorneys and patient advocates fought it.

Two lawsuits were filed against Issue 4: The Arkansas Bar Association argued the amendment would effectively abridge citizens' constitutional right to a trial by jury, and a group called the Committee to Protect AR Families alleged that the backers of the proposal failed to get the requisite criminal background checks for their paid canvassers during the signature-gathering process earlier in the year.

On Oct. 13, the Supreme Court agreed with the challengers in both suits and declared Issue 4 ineligible. The court said the ballot title left critical elements, such as "non-economic damages," undefined.

click to enlarge WIKIPEDIA

Issue 5: Rewrites the state constitution to authorize new casinos in three counties.

This measure has been disqualified by the Arkansas Supreme Court, and votes for or against it will not be counted.

Popular Name: "An Amendment to Allow Three Casinos to Operate in Arkansas, One Each in the Following Counties: Boone County, Operated by Arkansas Gaming and Resorts, LLC; Miller County, Operated by Miller County Gaming, LLC; and Washington County, Operated by Washington County Gaming LLC" (Full text)

What it does: The name says it all — specific corporations would have been allowed to open casinos in Washington, Boone and Miller counties. The casinos would have been allowed to operate all day, any day, and serve alcohol. The measure provided for the creation of the Arkansas Gaming Commission to regulate the businesses.

Why it matters: It's casinos vs. casinos in this fight. The amendment was pushed by Missouri investors and the Cherokee Nation, which hungers to break into the Arkansas gaming market. It was opposed by the state's two existing gambling interests: Oaklawn Racing and Gaming in Hot Springs and Southland Gaming in West Memphis, which are currently guaranteed an effective duopoly on casinos in Arkansas by a law permitting "electronic games of skill" at certain establishments offering pari-mutuel betting. At Oaklawn and (especially) Southland, the racing business has become secondary to blackjack, craps, roulette and so on.

Those opposed to the upstart out-of-staters included a bipartisan group of 40 legislators, former-Gov. Beebe and anti-gambling forces such as the Family Council. The funding for the "Committee to Protect Arkansas Values/Stop Casinos Now," however, came from Oaklawn and Southland. Each gave about $50,000 to the cause in August. The committee sued to disqualify the amendment, arguing that its ballot title was defective and that canvassers did not follow the law in signature collection.

On Oct. 13, the court disqualified Issue 5, saying its ballot title didn't adequately inform voters that the amendment allowed sports bookmaking, in conflict with federal law.


Issue 6: Writes medical marijuana into the state constitution.

Popular name: "The Arkansas Medical Marijuana Amendment of 2016" (Full text)

What it does: Issue 6 would legalize the use of medical marijuana for patients suffering from any of 17 specified ailments (cancer, Crohn's disease, fibromyalgia, HIV/AIDS and Alzheimer's disease, to name a few) along with conditions that result in certain symptoms (such as seizures or severe nausea). The Arkansas Department of Health could add other conditions as well. Between 20 and 40 dispensaries would be established statewide. The dispensaries could cultivate some amount of marijuana, but there would also be four to eight potentially larger scale "cultivation facilities" in the state. A five-member Medical Marijuana Commission would oversee operations of both dispensaries and grow centers under regulations provided by the Alcoholic Beverage Control Division. There would be no "grow your own" clause for patients in remote locations. Cities and towns would be allowed to ban dispensaries and grow centers by local election. Half the tax revenue generated would fund vocational training; the other half would go toward general revenue, workforce training, the Health Department and the ABC.

Why it matters: Significantly narrower than the Arkansas Medical Cannabis Act, Issue 6 has been the better funded of the two campaigns by a large margin, leading to worries that backers have the interests of the robber barons at heart. Still, if it were really all about the money, you'd think backers would have cast a wider net than 17 conditions. As a constitutional amendment, Issue 6 could only be amended by the legislature with a two-thirds vote and could be repealed only with another citizen initiative — but the trade-off is more finagling from the ABC, which has been overly complicating booze regulations in Arkansas for decades. Still, beware splitting the Yes vote between Issues 6 and 7 over inside baseball. You can bet the stone hearts and hippie haters will be voting No on both.

Arkansans Against Legalized Marijuana, a group which has the backing of the Arkansas Farm Bureau, the state Chamber of Commerce and others, sued to disqualify the amendment. However, on Oct. 13, the Supreme Court found in favor of the medical marijuana amendment's backers. "We conclude that while inside the voting booth, the voters will be able to reach an intelligent and informed decision for or against The Arkansas Medical Marijuana Amendment of 2016," the decision said.

click to enlarge WIKIPEDIA

Issue 7: Makes medical marijuana legal under state law.

Popular name: "The Arkansas Medical Cannabis Act" (AMCA) (Full text)

What it does: The AMCA would legalize medical marijuana. It explicitly names 56 specified ailments, as well as conditions that result in certain systems. The Health Department could add other conditions to the list. Unlike Issue 6, the AMCA would make medical cannabis legal under state statute rather than by a constitutional amendment, meaning the law could be more easily changed by the state legislature once passed.

Like Issue 6, the law would establish about 40 dispensaries; unlike in Issue 6, these would be nonprofits only. Each would have a dedicated grow center attached. Dispensaries would be overseen by the Health Department rather than the ABC. The AMCA would give approved patients who live more than 20 miles from a dispensary a right to grow a limited amount of cannabis for their personal use — or to name a "caregiver" to obtain the substance from a dispensary or cultivate plants. Tax revenue would cover the cost of administering the program and assist low-income patients. There is no provision for a city or county to prohibit dispensaries, but local governments can limit their number and regulate their location

Why it matters: Between the two marijuana proposals, this one is the winner when it comes to being a patient-centered law with sick people in mind. The AMCA covers three times as many illnesses as Issue 6, including migraines, Parkinson's disease, lupus and traumatic brain injury. Other pluses include low-income protections and the "grow your own" clause for patients far removed from dispensaries. The ability of the ledge to more easily meddle makes us nervous, but bonus points for keeping regulation where it belongs: in the hands of the Health Department, not the Sin Cops at the ABC.

Arkansans Against Legal Marijuana sued to disqualify the ballot title of the AMCA, but the Supreme Court has rejected that challenge. A second suit mounted by Kara Benca, a Little Rock lawyer, challenges the validity of signatures on the AMCA. As of Oct. 13, that suit was still pending.


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