Attorney General Leslie Rutledge today rejected a proposed ballot initiative brought by David Couch to enact changes to the process by which the state redraws congressional and state legislative districts. It was the second time that Rutledge has rejected the proposal.
Redistricting occurs every ten years, along with the U.S. Census. It’s an important issue: Partisan gerrymandering (yes, both sides do it when they’re in power) can lead to funky-shaped districts in Arkansas and elsewhere that seem counter to the spirit of a representative democracy. Couch — the Little Rock attorney who has campaigned for more than 20 ballot initiatives and authored the medical marijuana amendment that voters passed in 2016 — is proposing an amendment to the state constitution that would establish a “Citizens’ Redistricting Commission” consisting of seven members. The members of the commission would be chosen by the Majority and Minority Leaders in the House of Representatives and the Majority and Minority Leaders in the Senate, each choosing one member.
Those commission members would then choose three additional members by majority vote. None of these three additional members could have any political party affiliation, as determined by their voter registration.
This might produce a more fair system, but it would reduce the power currently held by the Republican officeholders set to have total control of redistricting under current law, including Rutledge herself. Under current law, the “Board of Apportionment” — consisting of the governor, the secretary of state, and the attorney general — draw the maps for the 100 House districts and 35 Senate districts. The General Assembly redraws the maps for the state’s four Congressional districts.
In her opinion issued today, Rutledge complained of ambiguities in the text, which is par for the course when the attorney general rejects ballot titles. As a sample: She stated that because the proposal “represents a substantial change to longstanding Arkansas constitutional law by repealing Article 8 to the constitution,” said repeal should be noted higher in the text; she said that the provision barring someone from serving as a commissioner is an immediate family member had served in various appointed or elected offices in the last five years failed to define what an “immediate family member” was; failed to define terms such as “geographic or political units” and “jurisdictions” that she said would not be readily understood by voters; and half a dozen other nits she located to pick.
Couch expressed frustration that all of the language that Rutledge said needed to be revised this time was in the previous draft that he submitted and drew no comment at that time. Rutledge had suggested other changes on the initial draft, which Couch made (changes which drew no comment this time). This is, shall we say, an inefficient manner for the attorney general’s office to go about dispensing guidance. In Couch’s view, it amounts to foot-dragging.
“She came up with a whole bunch of new stuff that was in the first one the first time we submitted it,” Couch said. “No we have to re-submit and she’ll take another ten business days.”
To proceed, the ballot measure first needs to be certified by the attorney general. At that point, the amendment would need to collect around 85,000 signatures of registered voters by July to make it on the ballot in November.
A protracted back-and-forth to win approval from the attorney general for ballot measures has been typical. The slightly absurd dance happens with most proposals — this year, Rutledge has rejected more than 50 proposed ballot titles and not accepted a single one. The situation led Driving Arkansas Forward, a group pushing an amendment to allow two casinos, in Jefferson County and Pope County, to file a 167-page lawsuit against Rutledge with the state Supreme Court earlier this week, after Rutledge rejected the group’s proposal a fourth time (Rutledge filed her response today). “We are concerned that the Attorney General is applying an unnecessarily burdensome standard in this review,” a spokesman for the group said.
As for Couch’s redistricting proposal, Rutledge might be especially motivated to obstruct, obfuscate, and drag her feet. If enacted, Couch’s proposed amendment would take away a power currently designated to Rutledge herself, as a member of the Board of Apportionment. More broadly, it would give a voice to the minority party. In 2020, that would mean giving Democrats and nonpartisan actors a seat at the table, as opposed to total control by Republicans. Perhaps Rutledge is sour on that idea.
The attorney general is ostensibly supposed to be neutral on the content of the proposal itself in these opinions, but Rutledge’s commentary does seem to reflect her own “view of the merits of a particular proposal,” her protestations to the contrary notwithstanding. From her opinion:
As a final note, I believe a cautionary note is warranted in light of the significance of the subject matter undertaken-apportionment and redistricting-and the complexity and far-reaching effects of your proposal. I have to question whether the Court would view your measure as one that the voters could readily understand so as to be able to make a considered and informed choice in the voting booth.
“It bothers me that in some of her comments she doesn’t think the electorate of the state of Arkansas is smart enough to figure out redistricting,” Couch said.
As to whether Rutledge might be particularly motivated to put the brakes on this proposal, Couch said, “It’s hard to comment on anybody’s motives. But some of her comments in the letter would lead a reasonable person to believe that some of the objections are content-based.”
Couch said that he would re-submit a revised proposal on Monday. “I’ll keep at it until I get it or until she tells me I can’t get it — and then I’ll ask the federal court to see if that’s constitutional. You can’t use this statute as a pretext to stymie or block someone’s constitutional right to petition.”