Several drafters of a proposed constitutional amendment to enshrine the Arkansas Freedom of Information Act in the state Constitution participated in a public forum in Little Rock on Thursday, Nov. 2, 2023. From left: attorney David Couch, Arkansas Press Association Executive Director Ashley Wimberley, Democratic state Sen. Clarke Tucker, attorney Jen Standerfer and former independent state representative Nate Bell. (Tess Vrbin/Arkansas Advocate)

Arkansas government transparency advocates sued Attorney General Tim Griffin on Tuesday, claiming his repeated rejection of a proposed amendment to the state Constitution is a misuse of his powers.

The nonpartisan Arkansas Citizens for Transparency (ACT) has been trying since November to gain Griffin’s approval of language for two proposed ballot measures: an initiated act to alter the state Freedom of Information Act and a constitutional amendment that would create the right to government transparency and restrict the Legislature’s ability to limit it.

Griffin has until Wednesday to approve or reject the third iteration of the proposed amendment and until Thursday to approve or reject the third iteration of the proposed act.

ACT’s complaint to the Arkansas Supreme Court alleges that Griffin’s refusal to certify previous versions of the Arkansas Government Transparency Amendment was based on personal disapproval and an attempt to prevent the group from having enough time to gather signatures in support of the measures. Proposed amendments require 90,704 signatures from registered voters by July 5 to qualify for the November ballot.

“The power to initiate an amendment is specifically reserved to the people of this state,” ACT wrote in the complaint. “The Attorney General is using his statutory duty to review and approve a ballot title to prevent the people from proposing the text of the amendment they want, denying approval of a popular name and a ballot title unless the text of the proposed amendment is written as directed by him, and using the ballot title process to prevent the petitioner from collecting signatures on the petition.”

The first two amendment proposals said the state Legislature “shall not make a law that diminishes public access to government” without the approval of the people of Arkansas. The third proposal did not include this clause or a definition of the phrase “diminishes public access to government” in response to one of Griffin’s continuing concerns.

Griffin rejected the first draft of the amendment Dec. 11, saying it lacked clarity in its use of specific terms, including “government transparency,” which he claimed had “partisan coloring” and “seems more designed to persuade than inform” potential voters.

ACT submitted a new draft, which included four potential ballot titles, on Dec. 20 with a definition of government transparency as “the government’s obligation to share information with citizens.”

Earlier this month, Griffin rejected the second draft and wrote in his opinion that a definition was not enough because the existing Arkansas Freedom of Information Act does not use the term “government transparency.”

“The Attorney General again refused to approve and certify any of the proposed popular names and ballot titles submitted by the Petitioner and failed to substitute and certify a more suitable and correct ballot title and popular name,” ACT’s complaint states. “Instead, he issued a condescending and improper opinion chastising the Petitioner for not following his previous opinion in not writing the text of the measure as he wanted it written and not as the Petitioner wanted.”

David Couch, one of the five attorneys on ACT’s seven-member drafting committee, said after the second rejection that a lawsuit was “imminent” and that Griffin’s decisions violated the people’s constitutional rights.

“I am confident in our review and analysis of ballot submissions and look forward to the Arkansas Supreme Court’s review in this case,” Griffin said in a statement through a spokesperson.

ACT lawsuit CV-24-40

Reasons for rejection

The Arkansas AG’s office had long reviewed ballot titles and popular names until the General Assembly, with support of then-Attorney General Leslie Rutledge, shifted ballot title certification responsibility to the State Board of Election Commissioners in 2019. 

Early last year, Act 194 of 2023 shifted this power back to the attorney general’s office. 

The attorney general may reject a ballot title and popular name if they “would be misleading or designed in such manner that a vote “FOR” the issue would be a vote against the matter or viewpoint that the voter believes himself or herself casting a vote for, or, conversely, that a vote “AGAINST” the issue would be a vote for a viewpoint that the voter is against,” according to Act 194.

This was not the case regarding ACT’s first two submissions of the proposed amendment, the complaint states.

“Because he did not find the ballot title was designed in a misleading manner, he is required to either approve and certify the ballot title submitted or to substitute and certify a ballot title,” the complaint states.

Griffin cited the “lack of the full text” of the amendment as reasons to reject both proposals. He clarified in his second rejection that this meant an “attempt to incorporate key provisions of the FOIA into the constitution by referencing the FOIA’s key terms” without specifically referencing the law or defining those terms. He also wrote that the proposed amendment did not clarify the impact it would have on state statutes.

ACT wrote in the complaint that these reasons did not merit a rejection of the ballot title and popular name.

“The Attorney General’s rejection of the ballot title and popular name demonstrates that he has either a complete lack of understanding of his role in the initiative process or he is intentionally thwarting the effort of the petitioner to get this amendment approved for the ballot so that the voters of the state can decide its merits,” the complaint states. “It is not the Attorney General’s right to effectively decide the fate of this measure by denying approval of a popular name and ballot title.”

State law allows petitioners to appeal to the Supreme Court if they believe a measure has been unfairly rejected. ACT’s complaint asks the court to “compel the Attorney General to approve or rewrite the popular name and ballot title for each measure.”

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