Attorney General Tim Griffin on Wednesday nixed a possible popular name and ballot title for a proposed Arkansas constitutional amendment aimed at requiring all elections in Arkansas to be conducted with hand-marked and hand-counted paper ballots and removing language in the Arkansas Constitution that permits elections to be conducted by voting machines.
The Republican attorney general also rejected a potential popular name and ballot title for a proposed Arkansas constitutional amendment pertaining to absentee voting.
Under this proposed amendment, "Only those voters who are unable to be present at the polls on election day because they are physically absent from or hospitalized, incarcerated or a resident of a long-time care facility within the county in which they are registered to vote shall qualify for, possess and utilize an absentee ballot." But the proposal states that it shall not apply when its terms and language are superseded by federal law.
The ballot committee Restore Election Integrity Arkansas proposed the two Arkansas constitutional amendments. Conrad Reynolds of Conway, who unsuccessfully challenged U.S. Rep. French Hill of Little Rock in the 2022 Republican primary, is the committee's chief operating officer.
The committee's attorney, Clint Lancaster, criticized Griffin's review of the ballot committee's proposed constitutional amendment. Griffin defended his office's work.
The attorney general's office received Restore Election Integrity Arkansas' two proposals "after hours" on Nov. 9, and Wednesday was the deadline for Griffin to take action on the proposed ballot title and popular name as a result of the holidays, according to Griffin spokesman Jeff LeMaster.
The attorney general's options include certifying the popular name and ballot title as submitted, rejecting the entire submission, giving the reasons for the rejection and instructing the sponsor to redesign the measure, or substituting and certifying a more appropriate popular name or ballot title.
Griffin said in a letter dated Wednesday to Lancaster that, after reviewing the text of the proposed constitutional amendment aimed at requiring all elections in Arkansas to be conducted with paper ballots and removing language that permits elections to be conducted by voting machines as well as the proposed popular name and ballot title, "I have concluded that I must reject your proposed popular name and ballot title and instruct you to redesign them."
The attorney general said several problems in the text of the proposed constitutional amendment prevented him from ensuring that the ballot title is not misleading or from substituting a more appropriate ballot title.
These problems range from the proposed constitutional amendment stating it "would repeal the secrecy requirement" for individual votes to be maintained under Section 2 of Amendment 50 to it being unclear how the proposal would allow any disabled voter to vote by a "voting machine" when the proposal repeals the use of voting machines, Griffin said.
He said the proposed popular name of the proposal is 152 words and longer than a typical popular name.
"It instead reads like a second ballot title. Although this alone is not misleading, you may wish to significantly shorten the popular name to better meet the purpose of popular names...," Griffin wrote in his letter to Lancaster.
Griffin said it's his opinion that the "proposed popular name contains impermissible 'partisan coloring' language when it uses the word 'integrity.'
The Arkansas Supreme Court has held that "partisan coloring" language is "a form of salesmanship" that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words," he said.
Griffin said it's also his opinion that the ballot title also contains impermissible "partisan coloring" language by using the words "to ensure free, fair and secure elections."
Regarding the proposed constitutional amendment pertaining to absentee voting, Griffin said in a letter dated Wednesday to Lancaster that "I have concluded that I must reject your proposed popular name and ballot title and instruct you to redesign them."
Multiple provisions in the text of the proposed amendment are ambiguous, the attorney general said.
Certifying the proposal's popular name and ballot title for each of its proposals would clear the way for the Restore Election Integrity Arkansas committee to begin collecting signatures of registered voters in an effort to qualify the proposed constitutional amendments for the 2024 general election ballot.
Sponsors of proposed constitutional amendments are required to submit 90,704 signatures of registered voters to the Secretary of State's office by July 5, 2024. The total must include signatures from voters in at least 50 counties, according to the Secretary of State's office.
Lancaster said in a written statement Wednesday that the attorney general's opinions rejecting the proposed initiatives "use heavy criticism of the substance of the proposed amendments to conclude that the ballot titles are misleading."
He said that "it appears that the Attorney General's review of our initiatives is tinged with its own 'partisan coloring,' which is remarkable as our entire team is made up of staunch conservatives who are passionate about accurate elections.
"Constitutionally, the Attorney General does not have the authority to reject ballot initiatives at all," Lancaster asserted.
According to Article 5, Section 1 of the Arkansas Constitution, "that power lies solely with the Secretary of State and the Supreme Court," he said. "We appreciate the Attorney General's input, but we are not going to play a game in which we let an elected bureaucrat and career politician tell us which words we must use and how we have to use them to have ballot access when we have a constitutional right that says otherwise.
"We are going to make some minor changes and submit these initiatives to the Secretary of State as the Constitution instructs us to do as the method for approval of our initiatives," Lancaster said. "We may resubmit to the Attorney General, but only as a backup or fallback strategy for ballot access."
In response, Griffin said in a written statement that for nearly 80 years, the General Assembly has required the Office of the Attorney General to review proposed popular names and ballot titles to ensure they are not misleading.
"The Arkansas Supreme Court upheld this process as fully constitutional and in furtherance of citizens' rights, specifically because it ensures Arkansans aren't being misled about what they're being asked to support," he said. "Also, it helps sponsors avoid successful last-minute challenges to poorly written proposals. The law governing citizens' ability to amend the constitution, thereby impacting millions of Arkansans, is clearly articulated and understandably rigorous. It often takes several attempts to get it right, and our opinions articulate what is legally required. My team of professionals and I look forward to reviewing any future submissions."
Several weeks ago, Pulaski County Circuit Judge Tim Fox dismissed a lawsuit filed by Reynolds' Arkansas Voter Integrity Initiative challenging the legality of Arkansas' ballot-counting machines. At issue was whether the bar code-based system allows voters "to verify in a private and independent manner the votes selected by the voter on the ballot before the ballot is cast" as described in Arkansas Code 7-5-504, which sets the standards for machine operations under the state Election Code.
In dismissing the lawsuit, Fox ruled that the system does provide that verification opportunity as required by law because voters are given printed ballots to cast once they've selected their choices from the computer system.
Lancaster has filed a motion for state Supreme Court to expedite its consideration of the Arkansas Voter Integrity Initiative's appeal of Fox's ruling according to court records.
During the regular session earlier this year, the Republican-dominated Legislature enacted Act 350 of 2023, sponsored by Sen. Kim Hammer, R-Benton, under which counties that choose to forgo electronic voting machines in favor of paper ballots will be responsible for the cost of the paper ballots and any devices or machines required for the printing and tabulation of paper ballots.
Asked about Restore Election Integrity Arkansas' proposed constitutional amendment, Hammer said earlier this month that that "I believe that the historical record, including audits, shows that election machines that are used in Arkansas have been proven to be accurate in reflecting the vote of Arkansans," and that includes producing a paper ballot that voters are able to see at the time they vote.
"I respect any citizen's right to introduce an initiative to be considered by voters; however, given the historical success of the machines used here in Arkansas I believe such initiatives only serve to undermine voter confidence absent of any evidence that shows cause for why we should move in the direction such as what initiative is proposing," he said.
In August, the Searcy County Quorum Court approved a resolution to shift from using voting machines to paper ballots.
In March, the Cleburne County Quorum Court reversed its earlier decision to switch to paper ballots.