ARKANSAS VOTERS FIRST, A BALLOT QUESTION COMMITTEE BONNIE MILLER, INDIVIDUALLY AND ON BEHALF OF ARKANSAS VOTERS FIRST AND OPEN PRIMARIES ARKANSAS, A BALLOT QUESTION COMMITTEE

2020 Ark. 265

• Court: Supreme Court of Arkansas
• Decided: August 27, 2020
• Docket: CV-20-454
• Status: Published

Opinion

Cite as 2020 Ark. 265 SUPREME COURT OF ARKANSAS No. CV-20-454

Opinion Delivered: August 27, 2020 ARKANSAS VOTERS FIRST, A BALLOT QUESTION COMMITTEE; BONNIE AN ORIGINAL ACTION IN THE MILLER, INDIVIDUALLY AND ON SUPREME COURT OF ARKANSAS BEHALF OF ARKANSAS VOTERS FIRST; AND OPEN PRIMARIES ARKANSAS, A BALLOT QUESTION COMMITTEE PETITIONERS

V.

JOHN THURSTON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE; THE STATE BOARD OF ELECTION COMMISSIONERS RESPONDENTS

ARKANSANS FOR TRANSPARENCY, A PETITION DISMISSED AS MOOT IN BALLOT QUESTION COMMITTEE; PART. AND JONELLE FULMER, INDIVIDUALLY AND ON BEHALF OF ARKANSANS FOR TRANSPARENCY INTERVENORS

RHONDA K. WOOD, Associate Justice

The Secretary of State notified petitioners that their two proposed constitutional

amendments lacked enough signatures for placement on the ballot this November.

Initially, the Secretary rejected the amendments because petitioners failed to verify that their paid canvassers had passed criminal-background checks. Instead, petitioners

submitted an affidavit stating that “criminal background check[s] have been timely

acquired.” The Secretary concluded that this affidavit fell short of statutory requirements.

Petitioners filed this original action against the Secretary as a result. After the

petition had been filed, the State Board of Election Commissioners reviewed the popular

name and ballot title for the present “open primary” amendment. The Board rejected both

as misleading and refused to certify the amendment for placement on the ballot.

Petitioners then filed a separate count against the Board. Petitioners alleged that the

Board’s decision was erroneous and, in any event, the legal regime whereby the Board

certifies ballot titles was unconstitutional. We agreed to bifurcate the proceedings between

counts 1 and 2 (criminal-background affidavit and signature issues) and this count 3

(popular name and ballot-title issues). See Miller v. Thurston, CV-20-454 (Ark. July 28, 2020).

Today, we concluded in a companion case that the criminal-background affidavit

was fatally flawed for both proposed amendments. Miller v. Thurston, 2020 Ark. 267.

Neither amendment has enough signatures for ballot placement. So even if we agreed that

the Board’s decision was incorrect or that the statutory review regime was unconstitutional,

the proposed open-primary amendment would fail. The issues in Count 3 are therefore

moot because our judgment would have no practical legal effect on an existing controversy.

See Shipp v. Franklin, 370 Ark. 262, 267, 258 S.W.3d 744, 748 (2007). We will not address

moot issues or issue advisory, academic opinions. Zook v. Martin, 2018 Ark. 304, at 2. We

dismiss count 3 of the petition as moot.

2 Petition dismissed as moot in part.

Mandate to issue immediately.

HART, J., dissents.

JOSEPHINE LINKER HART, Justice, dissenting. For the reasons stated in my dissent

with regard to counts I and II of the above-referenced case, count III is not moot.

Accordingly, this court should address the constitutionality question. Put simply, the

decision by the State Board of Election Commissioners (SBEC) to disqualify the ballot

initiative exceeds its constitutional authority.

Today’s decision allows a non-elected board of political appointees to annul the first power

retained by the citizens of this state in our constitution. Ark. Const. Art. 5, § 1.

As the petitioners note, the plain language of Amendment 7 provides that the ballot

title approval process is ministerial in nature subject to a decision by the Arkansas Supreme

Court if it is challenged in an original action. Our constitution states:

Title. At the time of filing petitions the exact title to be used on the ballot shall by the petitioners be submitted with the petition, and on state- wide measures, shall be submitted to the State Board of Election Commissioners, who shall certify such title to the Secretary of State, to be placed upon the ballot; on county and municipal measures such title shall be submitted to the county election board and shall by said board be placed upon the ballot in such county or municipal election.

Ark. Const. art. 5, § 1. Amendment 7 does not give SBEC the authority to review a ballot

title for sufficiency. The “sufficiency” of the petition, including the ballot title and popular

name, is “a matter of law to be decided by this court. Bailey v. McCuen, 318 Ark. 277, 284,

884 S.W.2d 938, 942 (1994). We have original and exclusive jurisdiction” over the

3 sufficiency of statewide petitions. Id. Under the separation-of-powers doctrine in our

constitution, the legislature does not have authority to cede our authority to decide such

issues to a quasi-executive agency acting in a quasi-judicial capacity.

I dissent.

Steel, Wright, Gray, PLLC, by: Ryan Owsley, Nate Steel, Alex Gray, and Alec Gaines, for

petitioners.

Gary L. Sullivan, Managing Attorney, for respondent John Thurston in his official

capacity as Secretary of State.

Leslie Rutledge, Att’y Gen., by: Nicholas J. Bronni, Ark. Solicitor Gen.; Vincent M.

Wagner, Dep. Solicitor Gen.; and Dylan L. Jacobs, Ass’t Solicitor Gen., for respondent

Arkansas State Board of Election Commissioners.

Kelly Law Firm, PLC, by: AJ Kelly; and Wright Lindsey & Jennings LLP, by: Scott A.

Irby and Gary D. Marts, Jr., for intervenors.