Report: Eye surgery issue doesn’t qualify to be on November ballot

LITTLE ROCK — The committee proposing a Nov. 3 referendum on a state law allowing optometrists to do a broader range of eye surgeries didn’t submit enough valid signatures to qualify for the ballot, a special master appointed by the Arkansas Supreme Court has concluded.

The effort fell short because some paid canvassers for the Safe Surgery Arkansas committee weren’t certified as passing criminal background checks, invalidating the names they collected, the special master’s report said.

The state Supreme Court appointed retired circuit judge Mark Hewett in April as a special master to determine some questions of fact raised in a lawsuit filed in late February by the Arkansans for Healthy Eyes committee. The committee is trying to stop the proposed referendum from being placed on the ballot.

The state’s high court, after reviewing Hewett’s report, will make its own decision. The Safe Surgery Arkansas committee opposes Act 579 of 2019 and prefers the specified surgeries be done by only ophthalmologists. That committee’s chairwoman said Monday she hopes the state’s high court will clear the way for the proposed referendum to go on the Nov. 3 ballot.

The Arkansans for Healthy Eyes committee supports the 2019 law permitting optometrists to do more surgeries.

Its chairwoman said she hopes the state Supreme Court agrees with Hewett’s findings. In his 22-page report Monday to the state Supreme Court, Hewett said Secretary of State John Thurston’s office erroneously included 51,911 signatures in its verified and final count of names of registered voters on the Safe Surgery Arkansas committee’s petition.

After deducting those 51,911 invalid signatures from the secretary of state’s total of 64,027, the remaining 12,116 valid signatures don’t satisfy the 54,391 required to qualify for the ballot, Hewett said.

“Accordingly, I find that the sponsor, Safe Surgery Arkansas, submitted insufficient signatures to qualify for the November 3, 2020, general election ballot,” Hewett said in his report. “I also find that all other claims made by the petitioner, Arkansans for Healthy Eyes, should be denied for lack of proof.”

Eight paid canvassers were certified to the secretary of state as having passed a criminal record check prior to beginning to collect signatures, Hewett said. They collected the 12,116 names he found valid.

The remaining 51,911 signatures counted by the secretary of state were procured by paid canvassers not certified as having passed a criminal record search upon submission of the paid canvasser list from June 13, 2019, and afterward, Hewett said.

“This violation triggers the ‘do not count’ requirement of Ark. Code Ann. 7-601 (b) (5), which provides that ‘signatures incorrectly obtained under this section shall not be counted by the secretary of state,’ and therefore requires disqualification of 51,911 signatures from the 64,027 that the secretary has counted as valid,” he said.

Vicki Farmer, chairwoman of the Arkansans for Healthy Eyes committee, said Monday “we are pleased with the final report” by the special master.

“The findings speak for themselves — the opposition did not follow petition requirements, leaving 51,911 signatures invalid, and therefore the measure does not qualify for the ballot,” Farmer said.

“Of course, we will await the court’s final say in the matter,” she said. “In the meantime, we remain hopeful Arkansas patients will finally be able to benefit from the improved access to quality eye care Act 579 was put in place to provide.”

Laurie Barber, chairwoman of the Safe Surgery Arkansas committee, said Monday “while we appreciate the special master’s hard work on this matter, we don’t believe a dispute over one word is a sufficient legal basis to silence the voices of tens of thousands of Arkansans, who deserve the right to vote on this important health care policy in November.”

Barber said “we are confident the Supreme Court will allow the signatures to remain and will protect Arkansas’s constitutional right to a referendum.”

Act 579 will allow optometrists to administer injections around the eye; remove bumps and lesions from eyelids; and perform certain types of laser surgery performed by ophthalmologists — specifically capsulotomy, a surgery done after cataract surgery, and trabeculoplasty, a procedure to reduce pressure from glaucoma.

Optometrists are still banned under the new law from doing cataract surgery, radial keratotomy surgery and selling prescription drugs. The law also requires the state Board of Optometry to establish credentialing requirements for a license to administer or do the new procedures.

Through the end of May, the Safe Surgery Arkansas committee reported raising $1.4 million in contributions and spending $1.1 million, leaving a balance of $237,149 on May 31.

In contrast, the Arkansans for Healthy Eyes committee reported raising $390,951 and total expenses of $356,094 through the end of May, leaving a balance of $34,858 on May 31.