Circuit Judge Mackie Pierce heard arguments this morning for a preliminary injunction to bar voting on Issue One, the proposed constitutional amendment that would severely limit damage awards, limit attorney fees and transfer power over court rule-making from the Arkansas Supreme Court to the legislature.

The judge said he’d rule on the preliminary injunction Tuesday. He also said he wants to schedule a hearing soon on the merits of the case, regardless of the decision on the preliminary injunction. This is an indication that he wants to position the case to have all issues taken to the Arkansas Supreme Court at the same time, rather than an intermediate appeal on the injunction and then further proceedings on the merits. It’s a foregone conclusion that the Supreme Court will be the last word.

Retired Judge Marion Humphrey
is plaintiffs in a taxpayer’s lawsuit to keep the amendment off the ballot because it puts to voters four distinct changes in the Constitution where the state Constitution envisions only singular voter initiatives. It also argues that it fundamentally upends three-branch government by stripping court power.

The judge permitted the intervention of a corporate lobby interest group led by the head of the Arkansas State Chamber of Commerce that was formed to promote the amendment. The secretary of state, who oversees the ballot, also was allowed to intervene.

The judge seemed to express some doubts about the corporate lobby lawyers’ argument that a decision to bar this amendment on account of having multiple parts would somehow jeopardize past amendments that have included multiple parts (but weren’t challenged on that ground). The counter-argument is that there’s a presumption of validity for measures approved by voters. No such presumption attaches to proposed amendments.

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