We reported here yesterday that Little Rock lawyer David Couch had sued Attorney General Leslie Rutledge for her refusal to certify the language of a proposal to raise the state minimum wage and that she was blaming her serial rejection of multiple initiative proposals on shortcomings in the law and court decisions.

Rutledge said she’d like to work with the legislature on changes to the initiative process, but offered no specific ideas.


Based on long experience, these are empty words, as are those uttered by legislators who lament the process. As early as 1994, the Arkansas Supreme Court wrote that a fix was needed, in an opinion written by Justice Tom Glaze. In reality, the attorney general prefers to control access to the ballot, as does the legislature. If changes are needed to satisfy a powerful constituency, the legislature is happy to oblige, by putting a proposal on the ballot, such as the one this year to strip the court of rule-making authority and make it all but impossible to sue for meaningful damages against negligent nursing homes and malpracticing doctors. The court has tended to be more lenient on language of legislature-proposed amendments as compared with those submitted by petition.

Couch reminds me that he and partner Phil Dixon wrote in a 1996 ballot challenge case:


Until appropriate action is taken to correct the problems attendant to proposals submitted under Amendment 7, citizens can continue to expect measures to be removed from the ballot immediately prior to the election. This court does not enjoy being in the “last-minute” position of review. The people of Arkansas deserve an initiative and referendum procedure which allows them the confidence that measures, after having been adequately reviewed, will not be removed from the ballot. The sponsors of initiative proposals should also be assured their ballot titles and proposed measures meet required guidelines and rules before they spend their time, energy and monies in getting their proposal before the voters.

Twenty-two years later, the process hasn’t been much improved and perhaps even made more difficult by intervening Supreme Court decisions on required clarity of popularly proposed initiatives. The latest wrinkle is an attorney general now acting as prosecutor, judge and jury for every ballot proposal and, coincidentally, blocking more than 60 — be the subject redistricting law, minimum wage, marijuana or gambling. The issues so happen to have powerful opposition in either the business community or the Republican Party.

Rutledge is to be questioned on her office’s review process in a lawsuit in Judge Wendell Griffen’s court today over her blockade of a casino gambling proposal. She hopes to persuade the judge that questioning of her is out of bounds.  She prefers to make decisions without meaningful explanation or possibility of appeal. End result if she prevails: The Constitution’s provision of people-based lawmaking is defunct.