SAFE SURGERY ARKANSAS, A BALLOT QUESTION COMMITTEE AND SPONSOR, AND LAURIE BARBER, M.D., INDIVIDUALLY AND ON BEHALF OF SAFE SURGERY ARKANSAS PETITIONERS
JOHN THURSTON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE RESPONDENTSTATE OF ARKANSAS INTERVENORARKANSANS FOR HEALTHY EYES, A BALLOT QUESTION COMMITTEE, AND VICKI FARMER, INDIVIDUALLY AND ON BEHALF OF ARKANSANS FOR HEALTHY EYES INTERVENORS
ORIGINAL ACTION PETITION FOR WRIT OF MANDAMUS
Wright & Gray, PLLC, by: Alex Gray and Nate Steel; Kelly
Law Firm, PLC, by: A.J. Kelly; and Ryan Owsley, for
Rock LLP, by: Jess Askew III, Ashley Hudson, Andrew King, and
Frederick H. Davis; and Dale W. Brown, for intervenors
Arkansans for Healthy Eyes and Vicki Farmer.
Rutledge, Att'y Gen., by: William C. Bird III, Senior
Ass't Att'y Gen., for intervenors. Gary L. Sullivan
and Peyton Murphy, Arkansas Secretary of State's Office,
Michael A. Stokes, of counsel, American Optometric
Association; and Everett Law Firm, by: John C. Everett, for
amicus curiae, American Optometric Association.
JOSEPHINE LINKER HART, ASSOCIATE JUSTICE
Safe Surgery Arkansas and Laurie Barber (SSA) filed in this
court a petition for a writ of mandamus against respondent
John Thurston in his official capacity as Arkansas Secretary
of State (Secretary of State). Arkansans for Healthy Eyes and
Vicki Farmer (AHE) intervened. The mandamus petition seeks to
compel the Secretary of State to count signatures SSA
obtained in support of a ballot petition for a referendum on
Act 579 of 2019. The Secretary of State had refused to count
most of the signatures, opining that they were obtained in
violation of Act 376 of 2019. Act 376 added additional
requirements for getting a referendum on the election ballot.
SSA seeks to have the signatures counted pursuant to the
pre-Act 376 legal framework, advancing two arguments in
support: (1) Act 376's emergency clause was defective,
meaning the changes contained in Act 376 did not go into
effect until after SSA had already filed its ballot petition,
or (2) if Act 376's emergency clause was effective, the
substance of the act is nonetheless violative of both the
Arkansas and United States Constitutions.
jurisdiction is proper pursuant to Ark. Sup. Ct. R.
1-2(a)(3). Because we agree with SSA's argument
that Act 376's emergency clause was defective, we do not
reach SSA's arguments regarding Act 376's
constitutionality. We grant SSA's mandamus petition
insofar as its seeks to have its referendum-related filings,
including the signature pages, addressed pursuant to the
pre-Act 376 framework.
Legal and Factual Background
5, section 1 of the Arkansas Constitution protects the
people's right to petition for a referendum on any act of
the general assembly. To get a referendum on the ballot for
statewide election, the referendum's sponsor must, among
other things, obtain signatures from at least six percent of
eligible voters in the state. Ark. Const. art. 5, § 1.
After a proposed referendum is placed on the ballot, if a
majority of voters elect in favor of the referendum at the
election, the act in question is repealed. Id.
2019 legislative session, the Arkansas General Assembly
passed Act 376. Act 376 purported to change the process by
which the people of this State may pursue a ballot initiative
or referendum. Relevant here is the manner and order in which
a referendum petition's sponsor must obtain sworn
statements from its paid canvassers. Since before Act 376,
paid canvassers have been required to give a written
statement to the petition's sponsor, swearing they have
never been convicted of certain crimes that would disqualify
them from serving as a paid canvasser. See Ark. Code
Ann. § 7-9-601(d)(3) (Repl. 2018). Act 376 adds the
requirement that the sponsor must give those statements to
the Secretary of State before the canvasser can
begin collecting signatures. Normally, a law enacted by the
legislature becomes effective ninety days after the
adjournment of the session in which the law is passed, but
Act 376 contained an emergency clause purporting to give it
immediate legal effect.
the 2019 legislative session, the Arkansas General Assembly
passed Act 579. Act 579 changed the law to allow optometrists
to perform certain surgeries that were previously reserved
for medical doctors.
14, 2019, SSA submitted to the Secretary of State a popular
name and ballot title for a proposed referendum on Act 579 to
appear on the November 2020 ballot. On July 23, 2019, SSA
submitted to the Secretary of State a petition "spanning
12, 570 parts, which collectively bore at least 84, 114
signatures" in support of a referendum on Act 579 being
placed on the November 2020 ballot.
August 2, 2019, the Secretary of State notified SSA of its
refusal to certify a referendum on Act 579 because the
petition only contained "23, 953 signatures on its
face." The basis of this conclusion was that the sworn
statements from (at least some) of SSA's canvassers had
not been filed with the Secretary of State ...