holding omissions from ballot title of significant provisions of amendment failed to give voters accurate description of proposal sufficient to allow them to vote intelligently
How later courts described this case
- holding omissions from ballot title of significant provisions of amendment failed to give voters accurate description of proposal sufficient to allow them to vote intelligently
- holding that the proposed amendment was so expansive that it precluded the writing of an acceptable ballot
- encouraging the General Assembly to make another attempt to establish an initiative procedure for early resolution of ballot-title issues
- struck ballot title to amendment that would authorize casino gambling
Written by the judges who cited it.
The opinion
Gerald Brown, Special Justice, concurring. The pros and cons of legalized gambling are not a part of this proceeding.
While, on the surface, this appears to present a ballot title issue, even a cursory reading of proposed Amendment 5 discloses a much more serious problem: the visceral damage which its adoption would inflict on our constitution and, indeed, on our system of government by constitution. .
I start with the premise that some things simply do not belong in a constitution.
My approach to the issue here involved (the role of a constitution in a constitutional form of government) is so simplistic that no citation of authority is necessary.
I realize that the learned members of this court need no history lesson, and none is intended, but sometimes it is helpful to harken back to basics.
Simply put, a constitution is a set of basic fundamental laws setting forth broad general principles by which people desire to be governed — an outline of the power that the people are willing to grant to the government — a skeletal directive from the people, leaving it to the legislative and executive branches of government to flesh out and implement. The judicial branch decides whether the constitutional goals are being met. If not, legislative remedies are available. Since constitutional changes are purposely difficult, specific detailed instructions should not be included. The constitution is not a “how to” manual.
The Attorney General’s Office is the first line of defense in preserving the character of our constitution. It filters from proposed amendments impurities which would pollute the process of government by constitution.
This court should preserve the integrity of our constitution by denying ballot access to proposed amendments which pollute it. Vigilance is required because pollution is insidious and incremental.
As the majority opinion points out, proposed Amendment 5 is too long, too detailed, to be susceptible to abridgment in a sufficiently informative ballot title. If the people of Arkansas desire to legalize gambling, that goal can be accomplished without constitutionalizing a monopoly and doing violence to the concept of constitutional government. The people can express that desire in a simple, straightforward manner and leave it to the legislature to implement, thereby preserving government by constitution, rather than government by Commission.
The power to protect the Constitution of the State of Arkansas is lodged only in this Court. Some pollution has already crept into our constitution, but the huge dose now being served up by proposed Amendment 5 is too much to gulp down in one swallow. Nibbling away at the edges is destructive enough, but a massive, frontal assault must be repelled.
I join the majority in requesting the General Assembly to continue its search for a solution to this troublesome problem. In the interim, I strongly feel that this Court should keep our constitution sufficiently free of debris so that all public officials can proudly raise their right hands and swear (or affirm) to uphold it.
I concur with the majority opinion in granting the petition.