Court filings reveal opposition to intervening motion in Arkansas direct democracy lawsuit
The League of Women Voters of Arkansas and the state attorney general argued in federal court filings this week that two ballot question committees are not entitled to intervene in the League's lawsuit challenging the constitutionality of direct democracy laws.
Protect AR Rights and For AR Kids filed a motion to intervene in the case on May 14, arguing that their interests aren't 'adequately represented' because the League's suit didn't challenge all the laws they intended to. The committees also argued that intervening is more efficient than filing a separate lawsuit, which they said would likely be consolidated with the League's complaint under federal court rules.
Arkansas grassroots organizations seek to intervene in lawsuit challenging direct democracy laws
In its response to the motion, which was filed by Little Rock attorney David Couch on Wednesday, the League of Women Voters of Arkansas and ballot question committee Save AR Democracy (SARD) argue the two ballot question committees don't have standing and have no right to intervene because they are not questioning LWVAR's ability to challenge the laws in the original complaint.
LWVAR filed a federal lawsuit against the Arkansas secretary of state in April alleging that eight recently approved state laws governing direct democracy violate the First and 14th amendments to the U.S. Constitution.
Direct democracy is the process by which Arkansans can propose new laws or constitutional amendments and place them on the ballot for a statewide vote. Arkansas is one of 24 states that allow citizen-led initiatives, according to the National Conference of State Legislatures.
The motion to intervene from Protect AR Rights and For AR Kids seeks to challenge two laws not included in the League of Women Voters' suit — Act 602 of 2025, which prohibits ballot titles from being written above an eighth-grade reading level, and Act 236 of 2023, which mandates petition signatures must be collected from at least 50 counties instead of 15 as directed in the Arkansas Constitution, according to court filings.
Protect AR Rights and For AR Kids also seek to add an additional defendant, Attorney General Tim Griffin, who is not a party to the pending litigation but is counsel for the secretary of state, which would further complicate the matter, according to LWVAR's response.
In the defendant's response, also filed Wednesday, Griffin noted that when he certified For AR Kids' popular name and ballot title for a proposed education-related constitutional amendment on Feb. 26, the ballot title didn't need to meet the reading-level requirement because Act 602 was not yet in effect.
The League and Save AR Democracy made the same point in their filing to argue that For AR Kids lacks standing to challenge the reading-level law.
Protect AR Rights submitted its own proposed direct-democracy ballot title on May 19 that's still under review by the attorney general. LWVAR argues this group also does not have standing because its proposed ballot title has not been rejected because of Act 602.
LWVAR argues that challenging Act 602 is further complicated because Griffin substituted and certified Save AR Democracy's ballot title on May 21 so that it would meet the eighth-grade reading level test.
'Even if Protect AR Rights had standing, the inclusion of that issue in the litigation would unnecessarily complicate this matter,' the response states. 'Nothing would prohibit Protect AR Rights from instituting litigation if it is denied a ballot title to meet the eighth grade reading level test.'
Griffin argues that the motion to intervene should be denied because Protect AR Rights is the only party that can challenge Act 602. This is also the only claim that can be made against the attorney general, he said.
State law requires the attorney general to certify or reject proposed ballot titles within 10 business days. The deadline for a response to Protect AR Rights' proposal is June 3. Because it is still under review, allowing the ballot question committee to intervene 'would require finding an injury in fact where such harm is hypothetical and not concrete,' Griffin wrote.
'Because Plaintiff SARD was able to satisfy the Act 602 requirement, the court has to resort to speculation to determine that Protect AR Rights' ballot title could never be at an eighth-grade reading level,' he said. 'For the same reasons, Protect AR Rights cannot bring a cause of action against Attorney General Griffin.'
Regarding the proposed intervenors' challenge to the 2023 law requiring signatures from 50 counties, LWVAR's response notes that this law is already being challenged by the League in Pulaski County Circuit Court. The case has been fully argued, briefed and is awaiting the court's ruling.
Plaintiffs argue there is no need for the claim to be pursued at this time and if it were allowed, it should be held in abeyance under the Pullman Doctrine, which provides that federal courts defer to state courts if the state ruling would resolve the federal issue.
'The issue before the Circuit Court is simply, can the Arkansas General Assembly amend the Arkansas State Constitution by statute? The League believes that it cannot, and a ruling in its favor would resolve the federal issue,' according to court documents.
Griffin also cited the Pullman Doctrine and noted that the losing party in the case is expected to appeal to the Arkansas Supreme Court.
'Thus, the [federal] Court should abstain from exercising jurisdiction over this claim, which is only being made by Movants to intervene,' he wrote. 'Standing alone, this claim cannot be a basis for Movants to be entitled to intervention.'
LWVAR further argues that Protect AR Rights' proposed ballot measure 'would conflict with and be in direct competition with' Save AR Democracy's approved measure because both seek to amend Article 5, Section 1 of the state Constitution, which governs the state's initiative and referendum process.
'It would be improper for the Protect AR Rights to intervene in litigation filed by SARD to get a measure approved that directly competes with the measure already approved and being circulated by SARD, in that it would create unnecessary conflict,' according to LWVAR's response.
Save AR Democracy also argues Protect AR Rights' proposed ballot measure contradicts with a claim made in the complaint — that the 'exhaustive list of disqualifying offenses' that prohibits individuals from collecting signatures is unconstitutional.
'The measure submitted by Protect AR Rights to the Attorney General for approval would enshrine this very prohibition in the Arkansas constitution,' the response says. 'This represents a core political and policy difference between SARD and Protect AR Rights and would inject unnecessary controversy and conflict into the litigation.'
Protect AR Rights' proposal also sets forth a procedure regarding a legal challenge to the ballot title that 'differs substantially' from Save AR Democracy's procedure.
Save AR Democracy's measure would require an approved ballot title to be submitted to the secretary of state who publishes notice of approval and the procedure for challenging the approval. The measure would establish a 45-day window during which a challenge could be filed with the Arkansas Supreme Court.
The Protect AR Rights measure would require a challenge to be filed within 10 business days of the attorney general sending the sponsor a letter approving the ballot title, but it provides for no notice. Providing the public 'adequate notice and opportunity' is essential to due process, the response states.
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