The Arkansas Supreme Court today in a 4-3 decision said all signatures should be counted on petitions to refer to voters a new state law that gives optometrists the ability to do more surgical procedures.

The Supreme Court said a state law meant to stiffen the process for hiring paid petition canvassers didn’t have a valid emergency clause. Thus petitions gathered under the old rules should be counted. They were disqualified by Secretary of State John Thurston. The new rule said canvassers had to file sworn statements before beginning the gathering of signatures.

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The legislature had declared that the canvassing law needed to be placed into effect on an emergency basis to avoid confusion in circulation of petitions and thus was in effect when petitioning began. But the court said:

At best, Act 376’s emergency clause simply declares that there is a need for greater notice of a change in the law.  Despite capable efforts by counsel to characterize its facial language more pressingly, Act 376’s emergency clause does not satisfy article 5, § 1’s requirements; in other words, this is not an “emergency.”

The Supreme Court ordered the secretary of state to count signatures again based on old rules. It declined to rule on the constitutionality of the new law on canvassing requirements or on the sufficiency of the ballot title to repeal the law giving optometrists expanded surgery rights. Those issues remain for future contest should the petitions be certified.

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The appeal came from Safe Surgery Arkansas, an opthalmologist-funded group that fought the law change.

The majority opinion was written by Justice Jo Hart joined by Justices Robin Wynne, Karen Baker and Rhonda Wood. Wood wrote a concurrence to emphasize that the legislature always must provide facts sufficient for someone to judge that an emergency existed to justify immediate implementation of a law and had not done so in this case.

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Justice Shawn Womack wrote a dissent joined by Chief Justice Dan Kemp and Justice Courtney Hudson. They said the emergency clause at issue was sufficient and that deference should be given to the legislature on such matters, not to the court.