Eye law petition awaits blessing
State says it has enough signers
The sponsors of a proposed referendum against a 2019 law that will allow optometrists to perform a wider range of eye surgeries submitted enough valid signatures to qualify their measure for the Nov. 3 general election ballot, Secretary of State John Thurston said Friday.
Thurston said he “has determined that there are no more than 64,027 valid signatures” of registered voters submitted by the Safe Surgery Arkansas committee, which proposed the referendum on the eye surgery law. The minimum number of signatures required for a proposed referendum is 53,491. The committee initially submitted 84,866 signatures to the secretary of state’s office, he said.
“The secretary of state intends to certify the proposed referendum to the county boards of election commissioners in August of 2020,” Thurston said in a letter dated Friday to the Safe Surgery Arkansas committee’s attorney, Alex Gray. The Safe Surgery committee’s members prefer that the specified surgeries be performed only by ophthalmologists.
The Republican secretary of state’s action came three days after Pulaski County Circuit Judge Wendell Griffen dismissed a lawsuit filed by an optometrists group called the Arkansans for Healthy Eyes committee. That group sought to block the referendum by stopping Thurston’s office from taking action to put the proposal on the ballot.
The referendum would allow voters to decide whether to keep or discard the eye surgery law, Act 579 of 2019.
The Arkansans for Healthy Eyes committee and its chairwoman, Vicki Farmer, filed the suit last week against Thurston and the Safe Surgery Arkansas
committee. The lawsuit was filed shortly after the state Supreme Court declined the committee’s request for the court to reconsider its Dec. 12 ruling directing Thurston to count all the signatures collected by the Safe Surgery Arkansas committee.
In the dismissed lawsuit, the Arkansans for Healthy Eyes committee said the Safe Surgery Arkansas committee’s petition was invalid because Attorney General Leslie Rutledge didn’t approve the proposal’s ballot title and name as required by state law in effect before changes were made by a new law on the initiative and referendum process — Act 376 of 2019.
Of Friday’s announcement by the secretary of state, Gray said in a written statement, “Voters can now rest assured they will have the opportunity to vote on whether to allow non-medical doctors to perform eye surgery this November, and the more than 64,000 Arkansans who signed the petition will have their voices heard.”
Farmer responded that the “certification from the secretary of state only addresses the petition signatures.
“This does nothing to change the fact the ballot title in this measure was never certified by the attorney general, as required under pre-Act 376 law, and therefore, this cannot be a legally effective referendum for the ballot under that law or any Arkansas law,” she said in a written statement.
Gray replied, “These arguments were already raised and rejected before both the Arkansas Supreme Court and Pulaski County Circuit Court.”
Farmer countered, “We disagree. It’s noteworthy the opposition has never shown they followed applicable law in trying to put this measure on the ballot, and we know they didn’t.”
In his decision, Griffen ruled that the circuit court lacked jurisdiction in the case and that it belonged with the Supreme Court.
Second, the Healthy Eyes litigation “is barred by res judicata based on the recent Arkansas Supreme Court decision (4-3) in Safe Surgery Arkansas v. Thurston,” in which the high court compelled Thurston to count the signatures for the proposed referendum, Griffen wrote.
According to Black’s Law dictionary, res judicata means “a thing adjudicated. Once a lawsuit is decided, the same issue or an issue arising from the first issue cannot be contested again.”
Prior to the Supreme Court’s Dec. 12 ruling, Thurston’s office had not counted most of the signatures because of Act 376, the 2019 law that changed requirements for canvassers, the people who circulate petitions.
The Supreme Court said Act 376 contained a defective emergency clause, so the new requirements weren’t in effect when the Safe Surgery Arkansas committee submitted its petitions July 23. An emergency clause is added so a law takes effect sooner than it would under normal circumstances.
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 performed after cataract surgery, and trabeculoplasty, a procedure to reduce pressure from glaucoma. Optometrists are still banned under the new law from doing cataract surgery and radial keratotomy surgery and selling prescription drugs.
State Rep. Jon Eubanks, R-Paris — the sponsor of Act 579 of 2019 — could not be reached for comment Friday.