Taking a pass

Ledge may let attorney general off hook

Is the sufficiency of a ballot title and description, the kind Arkansans have placed before them almost every election cycle, a matter of legal expertise or just a detail to be hashed out by politicians?

Until Leslie Rutledge became the state’s attorney general, it seemed accepted and reasonable practice that the office of the state’s top attorney was the right place to review initiative and referendum petitions from people or organizations that wanted to get their measures on the ballot. Apparently, it’s proved too much for the current officeholder.

Matthew Pitsch, a Republican lawmaker from Fort Smith, wants to relieve the attorney general of those duties. From his perspective, Arkansans who want to get a measure on the ballot need to hire their own attorneys to help get the wording right.

“We have created a process in the state that was not in our Constitution and for the lack of a better term we started using our attorney general’s office as legal counsel for the development of ballot titles, and nowhere does it say we need to do that,” Pitsch said.

Well, our Constitution is silent about a lot of things the state does. That doesn’t by necessity make them unconstitutional.

We certainly respect the idea that a state officeholder shouldn’t be treated like private counsel to those wishing to go through the initiative or referendum process in state government. Truth be told, most advocates in either process spend considerable time and money on private lawyers to help draft ballot measures that can withstand the scrutiny they will be, and should be, put through.

But Pitsch, in our view, is too aggressive in discounting the work of the attorney general as simply advising petitioners. No, the attorney general isn’t there to serve as attorney for the petitioners. But she is there to serve as the attorney for the people of the state of Arkansas, and it is in service to them that the attorney general is called upon to review and certify ballot measures before they can appear at any election.

In other words, the attorney general serves as legal advocate for the people. In terms of ballot measures, that means making sure proposed ballot measures are written in such a way that the interests of Arkansans will best be served, i.e., with clarity of meaning.

It is not in the public’s best interests to remove those responsibilities from the one office that is supposed to be an attorney for the people of the state.

Pitsch’s idea is to hand over the review of ballot measures to the state Board of Election Commissioners. In case you didn’t know, that’s a panel made up of the secretary of state, two members appointed by the governor, and one member each appointed by the chairman of the state Democratic Party, the chairman of the state Republican Party, the Senate president pro tempore and the speaker of the state House of Representatives.

Does that sound like a panel that’s going to stay keenly focused on legal requirements, as compared to, say, political considerations?

Rutledge drew criticism from her Democratic opponent in her last election for declining to certify more than 70 proposed ballot measures. A group of lawyers also sued her, claiming she was deliberately thwarting efforts to get measures on the ballot. She supports Pitsch’s bill to change the system.

While there may be some changes in the initiative and referendum process that helps with the timing of approvals, the removal of the attorney general from the process appears a convenient way for an elected official to get herself out of the contentious arena of ballot measures. Rutledge is as quick as any political officeholder to tout her office’s role in protecting the consumer. We can’t think of a stronger way to protect Arkansas’ voters than to have the state’s attorney in on the ground floor of making sure ballot measures are fairly and accurately written.

The state Senate has given its backing to the changes and the House will soon consider it after a “do pass” recommendation from the Committee on State Agencies and Governmental Affairs, so this measure may be well on its way to reality.

If you ask us, removing those duties from the attorney general’s office will no doubt make the post a little more comfortable for the officeholder, but that shouldn’t be the goal of our Legislature’s changes to state law.