Initiatives and Referenda

Arkansas’s adoption of key elements of “direct democracy” (specifically, a statewide initiative and referendum process) stands out in the South. The fact that Arkansas adds another policymaking body—the voters of the state acting at the ballot box on measures placed on the ballot through their own petition signatures—to the typical representative system of democracy continues to shape the political rules of the game in Arkansas a century after the process’s creation. It also reflects the legacies of the Progressive and Populist political movements in the state.

Proponents of direct democracy—the initiative, referendum, and recall—argued that taking total decision-making power away from legislative bodies could lessen the influence of special interests, reduce corruption in politics generally, and more fully empower rank-and-file citizens. Direct democracy had been advocated by earlier Populists in nineteenth-century Arkansas, but it was not until the Progressive era of the early twentieth century that Arkansas’s voters had an opportunity to consider the inclusion of two aspects of direct democracy in the state constitution: the initiative (the placing of constitutional amendments and acts before the voters via petition of the people) and the referendum (the review of legislative acts by the voters at the polls also activated via the petition process).

In his first campaign for governor in 1908, George W. Donaghey included the adoption of the “I&R” as a key platform plank. Donaghey’s candidacy had been encouraged by players in both the Farmers’ Union (the older Populist organization) and the newer organized labor movement in Arkansas. Believing that their voices were muted in the elite-controlled legislature, both groups were ardent supporters of direct democracy. Donaghey used the I&R as a way to focus an attack on the Arkansas General Assembly, which was routinely lengthening its increasingly expensive sessions and against six of whom bribery charges had been filed related to the construction of the new Arkansas State Capitol building. After his election, he was able to get a resolution through the legislature saying that the body would refer a proposed constitutional amendment on the subject to voters in the general election of 1910.

However, the sloppily written measure was flawed in a fundamental way: it would have allowed citizens of specific localities to propose and vote on changes in the state constitution and to reject at the local ballot box laws passed by the state legislature, creating a possible mismatch in the policymaking process. The provision became known as the “joker” in the measure by opponents of the I&R, who joined this critique with more-traditional arguments against the I&R that it would create turbulence through undermining the American tradition of republican government. Still, even though flawed in its construction, there was little doubt that the measure would gain the support of the majority of voters in the September 1910 election. The outstanding question was whether it would get a large enough vote to fulfill the subtle supermajority requirements for constitutional amendments.

By state Supreme Court ruling in 1906 (Rice v. Palmer), constitutional amendments had to be approved by a majority of the number of votes cast in the gubernatorial election, a race in which many more voters typically cast votes than on a constitutional amendment buried at the bottom of the ballot. The proponents of Amendment 10, therefore, exerted an all-out effort to get this “constitutional majority” for the amendment. Donaghey spent tremendous energy on behalf of the initiative, and organized labor and the Farmers’ Union became the most ardent workers on behalf of it. Because the I&R was on the ballot only in Arkansas in 1910, the campaign became a focus of non-Arkansans as well, including the most famous orator on behalf of Populist causes, William Jennings Bryan. Bryan came to Arkansas in the days leading up to the vote and gave fifty-five speeches over five days, capturing the ears of between 75,000 and 125,000 prospective voters. The Batesville (Independence County) Daily Guard described Bryan’s visit there: “A stream of wagons, buggies, hacks, and saddle animals began pouring into town last evening and early this morning many more came in until conservative estimators place the number of hearers…at between six and seven thousand.” It was a trip that paid off for the amendment, as areas supportive of the amendment on election day correlated strongly with Bryan’s path through the state. Overcoming the ardent opposition of the Arkansas Bar Association and the Arkansas Gazette, the amendment was passed 92,781 to 38,648; the amendment had achieved the “constitutional majority.”

The life of the amendment was a messy and litigation-plagued one, however. In 1912, the state Supreme Court eliminated the “joker,” deeming it an absurdity. More damaging to the I&R was another 1912 court decision, State ex rel. Little Rock v. Donaghey, stating that the amendment had not changed the total number of constitutional amendments that could be considered in a given election; thus, if the legislature sent voters its limit of three amendments, none could be added via petition. Finally, the court said three years later that the constitutional majority rule applied to amendments considered via the petition process.

To overcome these court limitations, a new I&R proposal was sent to voters in 1920. It passed but just failed to achieve the constitutional majority. (It passed by a vote of 86,360 to 48,662.) In 1925, however, the Supreme Court upended precedent in Brickhouse v. Hill, which said that the constitutional majority rule was no longer necessary for constitutional amendments coming to the people via petition. Thus, the new I&R amendment was rightfully in the state constitution where it remains until in the twenty-first century as Amendment 7. As such, Arkansas is a rare southern state with the I&R option open to its people.

The I&R takes three distinct forms in Arkansas: the initiated constitutional amendment (a proposal to change the state constitution itself); the initiated act (a proposal to create a statute at the ballot box); or the referendum (a proposal to overturn a statute passed by the legislature and signed by the governor at the last legislative session). At the ballot box, these join constitutional amendments and other acts referred to the people by the Arkansas General Assembly; for instance, the legislature may, according to the constitution, refer up to three constitutional amendments each general election.

Each of the three has differing requirements for the percentage of votes cast in the last gubernatorial election for which signatures of registered voters must be accurately collected on petitions through what has become a complex process. For an initiated constitutional amendment, ten percent of the votes cast in the preceding gubernatorial is the statewide threshold; for initiated acts, eight percent of that number is necessary; for referenda, it is six percent. Each also requires that one-half of the necessary threshold percentage (five percent of a county for constitutional amendments, etc.) be collected in fifteen counties to show statewide support.

The petitioning process for referenda must be completed within ninety days of the adjournment of the legislative session in which the law in question was passed. (If sufficient signatures are collected, the law is stayed until the election when it will be voted on by the public.) A lengthy, multi-stage process is employed for constitutional amendments or acts. First, the proposal, including a short popular name and longer ballot title, must be presented to the state attorney general for approval. (Act 376 of 2019 shifted this responsibility to the state Board of Election Commissioners, but in September 2022, the Supreme Court of Arkansas overturned a decision by the board not to certify a proposed amendment’s ballot title and popular name, and the following year a bill was filed in the Arkansas General Assembly to return this responsibility to the attorney general.) If rejected, the proposal may be resubmitted until being cleared. Once the proposal is approved, petition gatherers may begin gathering signatures on petitions that include the popular and ballot titles. When turned in, each petition must be notarized. Moreover, as a result of legislation in 2013 and 2015, paid canvassers are heavily regulated. In addition to a signer of a petition not being a registered voter in a given county, any violation of these regulations can justify rejection of an entire petition.

No later than four months before a general election, petitions must be submitted to the Arkansas secretary of state, who is responsible for counting the signatures. It must also be published at least thirty calendar days before filing with the secretary of state. If no systemic problems show themselves after the initial analysis, the group will be allowed to collect more signatures for thirty days if seventy-five percent of the statewide number has been validly collected, along with seventy-five percent in each of the fifteen counties. This period is called the “cure period.”

Once the secretary of state determines that enough valid registered voters’ signatures are actually included on the petitions, the initiative or referendum is forwarded to the ballot. However, at that stage, the sufficiency of the ballot title or any aspect of the signature-gathering process may be challenged in court. (Amendments put forward by the Arkansas General Assembly are more fully protected from such litigation.) It is quite common for ballot measures to be removed from the ballot as election day approaches. For instance, in 2016, three proposals were kicked off the ballot by the Arkansas Supreme Court even after the ballots had been printed and voting had begun, meaning that no votes were actually counted on those measures.

Over the decades since its creation in Arkansas, direct democracy’s usage has waxed and waned as has the likelihood of Arkansas voters approving a measure if it makes it to the ballot by petition. This table shows those patterns since the 1940s:

As can be seen, the use of the petition process was quite frequent in the early decades of its implementation in the state, and passage rates of measures put before the voters via petition was also relatively high. In the 1960s through the 1980s, a period in which two proposed new constitutions were considered by the voters of the state, the use of direct democracy became less common in Arkansas. In the twenty-first century, however, there has been a slight uptick in passage rates if not in the overall number of issues considered by the voters. Measures referred by the legislature have generally had higher likelihood of passage, but this pattern has also varied throughout the decades.

While the number of measures put forward in recent years has been smaller, those advanced have been particularly contentious, as evidenced by the amount of money spent promoting or opposing them and the prevalence of litigation focused on removing them from the ballot. Moreover, recent years have shown the rise of “policy entrepreneurs” using direct democracy as a way to facilitate policy change as well as their own political careers. A good example of the latter was Lieutenant Governor Bill Halter’s successful promotion of a statewide lottery with proceeds to go to higher education scholarships in 2008. The Arkansas General Assembly has also showed renewed interest in regulating the practice in a way that would lessen its use.

On occasion, direct democracy has been used in the state for goals akin to those imagined by the Populist and Progressive proponents of direct democracy. These include measures opposed by the legislature such as state ethics provisions in 1988 and 1990, an increase to the state minimum wage above the federal minimum wage (2014), and the creation of a medical marijuana program in the state (2016). Just as regularly, it has been used for less progressive ends. Voters over the decades also have used their lawmaking powers to prohibit the teaching of evolution (1928), to place a so-called right‑to‑work amendment in the constitution (1944), to order all state officials to “oppose in every Constitutional manner the unconstitutional desegregation decisions of May 17, 1954” (1956), to bar state spending “to pay for any abortion, except to save the mother’s life” (1988), and to limit marriages in the state to those between one man and one woman (2004).

The referendum has been used less frequently than have the initiated constitutional amendment and initiated act over the years. In 1994, however, a high-profile referendum campaign was waged on whether to repeal a tax increase on soft drinks at the wholesale level to cover the cost of Medicaid coverage in the state. With fifty-five percent, the tax survived the vote.

During the 2019 session of the Arkansas General Assembly, legislators approved a proposed constitutional amendment that would increase the difficulty of qualifying measures for the ballot. This proposed amendment, which was developed by Republican lawmakers in cooperation with the Arkansas State Chamber of Commerce and the Arkansas Farm Bureau Federation, was voted down by voters in 2020. However, the following year, the legislature passed Act 951, which imposed a residency and citizenship requirement for canvassers collecting signatures for ballot initiatives and prohibited paying such canvassers on a per-signature basis, while House Joint Resolution 1005, which was referred to voters in 2022, proposed raising the threshold needed to pass ballot measures to sixty percent of the popular vote. The measure, too, was soundly defeated by voters. In 2023, Sen. Jim Dotson of Bentonville (Benton County), a Republican, sponsored SB260, a bill that would go further than the defeated 2022 amendment in creating obstacles for proposed ballot measures, requiring sponsors to collect sufficient signatures from a minimum of fifty counties, rather than fifteen, and increasing the number of signatures of registered voters specifically from the required fifty counties from one-half to three-fourths. In the Arkansas House, Rep. Kendon Underwood of Cave Springs (Benton County) filed HB1419, a bill also mandating a fifty-county requirement for signatures; it passed out of the House on February 22, 2023, and passed the Senate on March 6, 2023. Opponents of the two bills argued that they would dilute Arkansas’s democracy and make getting ballot initiatives to a vote too expensive and burdensome for actual grassroots organizations based in the state, thus making such initiatives the preserve of well-funded corporate efforts. HB1419 advanced, and Gov. Sarah Huckabee Sanders signed the bill (Act 236) into law on March 7, 2023; three days later, the League of Women Voters of Arkansas and Sen. Bryan King of Green Forest (Carroll County) filed a lawsuit challenging the act. Oral arguments in the case began on February 26, 2024.

Also on March 10, Rep. David Ray of Maumelle (Pulaski County) filed HB1601, which would require canvassers for potential ballot initiatives to undergo training and be licensed by the state, but the bill died in committee.

On February 6, 2024, a group of direct democracy advocates, including the League of Women Voters of Arkansas, submitted to Attorney General Tim Griffin ballot language for an amendment that would simplify the ballot initiative process, including blocking the state legislature from making alterations to any voter-approved constitutional amendment, limiting the ability of the attorney general to impede or delay the process, and giving citizens’ organizations ninety days to collect the necessary signatures. On February 20, 2024, Griffin rejected the ballot wording for the proposed amendment.

For additional information:
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Blair, Diane D., and Jay Barth. Arkansas Politics and Government: Do the People Rule? 2nd ed. Lincoln: University of Nebraska Press, 2005.

Cottingham, Jan. “Attorney David Couch Wields Initiatives to Change the Law.” Arkansas Business, June 13, 2016, pp. 12–13.

DeMillo, Andrew. “GOP out to Rein in Ballot Amendments.” Arkansas Democrat-Gazette, June 24, 2019, pp. 1A, 3A.

Earley, Neal. “Ballot Suit Oral Arguments Set.” Arkansas Democrat-Gazette, February 26, 2024, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2024/feb/23/oral-arguments-set-in-lawsuit-challenging/ (accessed February 26, 2024).

———. “Griffin Rejects ‘Ambiguous’ Overhaul Bid.” Arkansas Democrat-Gazette, February 21, 2024, pp. 1B, 8B. Online at https://www.arkansasonline.com/news/2024/feb/20/griffin-rejects-ballot-wording-for-proposed/ (accessed February 21, 2024).

———. “Petition Signature Act Draws Lawsuit.” Arkansas Democrat-Gazette, March 11, 2023, pp. 1B, 8B. Online at https://www.arkansasonline.com/news/2023/mar/11/lawsuit-filed-challenging-new-law-raising-number/ (accessed March 13, 2023).

Farmer, Rod. “Direct Democracy in Arkansas, 1910–1918.” Arkansas Historical Quarterly 40 (Summer 1981): 99–118.

“Initiatives and Referenda.” Arkansas Secretary of State. https://www.sos.arkansas.gov/elections/initiatives-and-referenda/ (accessed December 17, 2021).

Langhorne, Will. “Initiative Signature Measure Advances.” Arkansas Democrat-Gazette, February 23, 2023, p. 3B. Online at https://www.arkansasonline.com/news/2023/feb/23/arkansas-house-approves-bill-intended-to-increase/ (accessed February 23, 2023).

Ledbetter, Calvin R., Jr. “Adoption of Initiative and Referendum in Arkansas: The Roles of George W. Donaghey and William Jennings Bryan.” Arkansas Historical Quarterly 51 (1992): 199–223.

Paschal, Olivia. “How to Change Policy without Politicians.” The Atlantic, May 18, 2019. https://www.theatlantic.com/politics/archive/2019/05/arkansas-direct-democracy-ballot-measures/589513/ (accessed December 17, 2021).

Smith, Nancy. “The Secret Sauce of Ballot Initiative Approval: Eliminating Issues within Arkansas’s Pre-Circulation Review.” Arkansas Law Review 72.3 (2019): 683–712.

Stiritz, Michael. “Ballot Initiatives and Direct Democracy—Amendment 100 to the Arkansas Constitution: Constitutional Issues Surrounding Ballot Initiatives and Local Legislation.” University of Arkansas at Little Rock Law Review 43 (Spring 2021): 87–108.

Wickline, Michael R. “Higher Ballot-Issue Bar Advances.” Arkansas Democrat-Gazette, March 3, 2023, pp. 1A, 9A. Online at https://www.arkansasonline.com/news/2023/mar/03/bill-requiring-more-signatures-to-qualify/ (accessed March 3, 2023).

———. “Lawmakers Note Ballot-Issue Views.” Arkansas Democrat-Gazette, April 29, 2019, pp. 1A–2A.

———. “Measure Filed for AG Review of Ballot Titles.” Arkansas Democrat-Gazette, January 31, 2023, pp. 1B, 6B. Online at https://www.arkansasonline.com/news/2023/jan/31/measure-filed-for-ag-review-of-ballot-titles/ (accessed February 1, 2023).

———. “Senate Panel Propels Ballot Measures Bill.” Arkansas Democrat-Gazette, February 17, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/feb/17/senate-committee-endorses-bill-to-raise-signature/ (accessed February 17, 2023).

———. “Senate Sends Signature Bill on to Sanders.” Arkansas Democrat-Gazette, March 7, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/mar/07/bill-raising-number-of-signatures-needed-to-add/ (accessed March 7, 2023).

Yeargain, Quinn. “Four Ballot Measures Threaten to Undercut Direct Democracy in Arizona and Arkansas.” Bolts, September 21, 2022. https://boltsmag.org/ballot-measures-arizona-arkansas-direct-democracy/ (accessed September 22, 2022).

Jay Barth
Hendrix College