Bills to Chill FOIA Self-Legislation: HB1221 and HB1222
News and Analysis on the 2025 Legislative Session
Jan 28, 2025
NEWS. January 28, 2025, in Little Rock.
The 2025 legislative session is underway. Barely two weeks into the session, the “election integrity caucus” makes a move to quell self-legislation.
Both bills cut off signature gathering after the election in which the certification of a ballot measure is made. Next, HB1222 prevents the certification of any ballot measure if it is a “conflicting measure” submitted by the same sponsor. A conflicting measure is defined as one that attempts to do the same thing or substantially the same thing as a previous or simultaneously proposed measure.
On their face, the bills seem innocuous. However, the effects are pronounced. If a ballot measure is submitted and certified as insufficient, all signatures gathered before the election in which the measure could be on the ballot are void. This prevents signatures for a measure from “rolling over” to the next election. This means that if a measure is certified as insufficient for any reason—including a lack of sufficient signatures—then a sponsor must start over anew after an election and cannot add to the signatures that were already collected.
Additionally, because the legislature believes the Attorney General is the “first stop” for a ballot measure (the Arkansas Constitution says that the Secretary of State is the first stop and gives no authority to the Attorney General), it empowers the Attorney General to reject multiple submissions of all measures from the same sponsor if the measures attempt to accomplish the same goal but use different language.
ANALYSIS.
It’s astonishing, to me, that Ray and Hammer, the bills’ sponsors, run as republicans but fail to advance the republican agenda. Here is more of the same.
The last election season saw several statewide ballot measures designed to change the Constitution. From recreational marijuana to abortion to paper ballots, the vast majority of these measures died a costly death at the hands of the Attorney General, John Thurston (the then Secretary of State), or a tumultuous Supreme Court.
While I personally was the attorney for the paper ballot measure that the high court quashed last summer these bills are not really aimed at election integrity ballot measures. Additionally, while I represented an entity that drew the ire of the legislature’s Joint Performance Review Committee last fall, these bills do not address that event either.
Instead, these bills address the attempts to make FOIA a constitutional provision. The AG’s office loves to kill measures that the establishment doesn’t like (bad kitty). To thwart that effort, the FOIA sponsors submitted multiple versions of the same measure to the AG for approval.
The thought process was that since the AG loves to slow walk these decisions, and everyone is afraid to pay the huge sums to run the measures without the AG’s approval (even though the supreme court has indicated that it does not give a flying frog about the AG’s thoughts on a measure), the best approach would be to submit multiple measures and hope one gets approved.
The AG’s office, apparently, does not want your tax dollars to work that way. It appears the office thinks it has better things to do than hear out the peasants. Now, your signatures cannot be used after an election, and you can no longer use a shotgun approach with the AG’s office to run your measure (however, the not-so-bright state lawyers who draft these bills missed a big, obvious loophole–don’t you love lawyers who miss loopholes and love even more the ones who find them).
Freedom abounds?
Attorney. America First. Sued Hunter Biden for child support. Represented President Trump in the 2020 Wisconsin election challenge. Former attorney for the Wisconsin Special Counsel. An official “Tough Cookie” per President Trump.
We need to guard our right to initiate legislation and constitutional changes. Every attempt to reduce the ability of citizens to self govern is bad and should be rejected. We do need an initiated amendment to bring all the initiated measures law and constitution into a streamlined system. Can or can’t. Is or is not. Get rid of the state imposed stumbling blocks and let the people speak. That same streamlining process should place controls on moneyed interest from inside or outside the state buying a platform on the ballot. I know that someone has to pay to get the job done but there are simple ways to prevent measures that are not in the best interest of the people from being placed on the ballot. We have seen several bad measures get on the ballot in the past 20 years and the people are still paying for them.
Loophole, you say?