Readings in Arkansas Politics and Government

Intelligible, Honest, and Impartial Democracy: Making Laws at the Arkansas Ballot Box; or, Why Jim Hannah and Ray Thornton Were Right about May v. Daniels

Intelligible, Honest, and Impartial Democracy Making Laws at the Arkansas Ballot Box; or, Why Jim Hannah and Ray Thornton Were Right about May v. Daniels STEVE SHEPPARD In the  election, state voters were asked not only to support an incumbent president’s bid for a second term but, also to give their approval to a proposal amending the Arkansas Constitution to define marriage as consisting “only of the union of one man and one woman” and establishing that relationships not consistent with this definition would not enjoy legal standing in Arkansas.The state’s voters, to almost no one’s surprise, consented heartily to both propositions. In this research note, Steve Sheppard, a member of the University of Arkansas Law School faculty, argues that the initiated proposal (“An Amendment Concerning Marriage”) at least was misleading in both its popular name and ballot title and should have been recognized as such by the Arkansas Supreme Court in its response to a challenge to the proposal by a taxpayer group (May v. Daniels). Finding plenty of support for his position in the opinions of the two dissenting justices in the case, the author offers his views on the essential elements of “intelligibility , honesty, and impartiality,” and argues that these elements were not inherent in either the ballot proposal or the majority decision in May v. Daniels. As such, he concludes, “the ballot amounts to a fraud, or a trick, and there can be no basis for believing that the law really represents the will of the people.” Previously unpublished. Used by permission. There is a long-standing tension in America between the ideals of direct democracy and the rule of law. In its simplest form, rule by democracy requires that the majority gets what it wants, but the rule of law requires not only respect for certain procedures but also, as we know it today, respect for those who would oppose the majority.1 Nowhere in Arkansas law does one see this tension as clearly as in our perennial disputes over ballots for initiatives proposing new statutes or constitutional amendments.2 Initiatives have been used to enact statewide and municipal laws since .3 As the basis for constitutional amendment4 and even for statutes, laws passed by ballot have a particular political allure because they are immune from veto.5 Initiatives, in particular, were and remain heralded for their peculiar legitimacy as representing the direct voice of the people,6 but they spark a continuing concern for their potential to enact laws that impose the will of the majority, which may be prone to sway by populists and demagogues.7 Nonetheless, both initiatives and constitutional referenda have grown more popular as a means of enacting laws in the state, and initiatives on the ballot as a result of petition have fared about as well as those proposed by the legislators.8 Over forty statutes and amendments have been enacted by vote since the  election.9 The powers and procedures for initiatives are governed by Amendment Seven of the Arkansas Constitution: The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option, to approve or reject at the polls any entire act or any item of an appropriation bill.10 The exercise of this power of initiative and of the related power of referendum differ somewhat. Initiative, or the popular creation of a new law or amendment, requires a petition to be signed by sufficient voters in sufficient counties to be placed on the ballot.11 Referendum, in itself, is a ballot either to repeal an established statute or appropriation brought by petition or a legislative referral of a constitutional amendment to a popular vote.12  Intelligible, Honest, and Impartial Democracy The lion’s share of disputes before the courts over such measures arises in challenges to two aspects of the procedures in Amendment Seven that apply to initiated acts and amendments. The sponsoring individual or group must write or attach the ballot title and the text of the proposed law to each petition presented for signature.13 The popular name, ballot title, and text...