Arkansas Issue 4, Redistricting Commission Amendment (2020)

Arkansas Issue 4
Election date November 3, 2020
Topic Redistricting measures
Status Not on the ballot
Type Constitutional amendment	Origin Citizens
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Arkansas Issue 4, the Redistricting Commission Amendment, was not on the ballot in Arkansas as an initiated constitutional amendment on November 3, 2020.

The measure was certified for the ballot on August 21, 2020. Secretary of State John Thurston found on July 14 that signatures for the ranked-choice voting initiative and the redistricting initiative were insufficient, but provisionally certified both measures for the ballot "for coding purposes and preparation purposes only, pending the outcome of the litigation." On August 27, 2020, The Arkansas Supreme Court blocked both measures from appearing on the ballot.

Measure design

Issue 4 would have created the Citizens' Redistricting Commission for state legislative and congressional redistricting. The commission would have been comprised of nine commissioners who are registered Arkansas voters and would have replaced the Board of Apportionment, which was, as of 2020, responsible for state legislative redistricting in Arkansas. As of 2020, the Board of Apportionment was comprised of the governor, the secretary of state, and the attorney general. In Arkansas, as of 2020, the state legislature was responsible for federal congressional redistricting. The measure would have established criteria for drawing district maps. All meetings of the commission would have been publicized and open to the public. The Arkansas Secretary of State would have published the commission's maps.

The measure would have changed processes for federal and state legislative redistricting following the 2020 U.S. census. As of 2020, the Arkansas House of Representatives had 100 districts and the Arkansas State Senate had 35 districts. As of 2020, Arkansas had four federal congressional districts.

Restrictions on who may serve as a commissioner

The measure would have restricted individuals from serving if they were, within the last 5 years, an elected official; appointed federal or state official; lobbyist or employee of a lobbyist; political party officer; employee of a political action committee, campaign committee, or political party; or if they were the spouse, child, parent, or sibling (by blood or marriage) of any such individuals.

Selection of commissioners

By January 1, 2021, and then by December 1 of the U.S. census years in the future, the Arkansas Supreme Court Chief Justice would have appointed a panel of three for the purpose of selecting commissioners. The panelists would have selected from retired state supreme court justices, court of appeals judges, and circuit court judges. By January 15 in the year preceding the U.S. census, the Arkansas Secretary of State would have created an application to serve as a commissioner and advertise it statewide. Applications would have been accepted through March 1 with initial selections made by the panel by April 1 following the U.S. census. The panel, in a majority decision, would have selected 90 applicants as follows:

• 30 applicants affiliated with the political party having the largest number of representatives in the Arkansas General Assembly;
• 30 applicants affiliated with the political party having the second-largest number of representatives in the state assembly;
• 30 applicants affiliated with other political parties or no political party.

The commission would have been required to make efforts to ensure that the pools are geographically and demographically representative of the state's population.

The panel would have published the names and applications of each of the 90 selected applicants. Within 10 days, the following five individuals would have been allowed to eliminate up to two applicants from each of the three pools, thereby eliminating a total of 30 applicants:

• the governor;
• the parliamentary leader of the political party with the largest number of representatives in the House;
• the parliamentary leader of the political party with the second-largest number of representatives in the House;
• the parliamentary leader of the political party with the largest number of representatives in the Senate; and
• the parliamentary leader of the political party with the second-largest number of representatives in the Senate.

After eliminations, the panel would have randomly selected three applicants remaining in each pool for a total of nine commissioners. Random selections would have continued to occur, if necessary, so as to result in each of the state's four U.S. congressional districts being represented by at least one commissioner from the district. Final selections of commissioners would have needed to be made by May 1 in the year following the U.S. census.

Commissioners would have been reimbursed for expenses incurred related to the commission's duties and per diem up to $200 unless increased by the state legislature. The state legislature would have had to appropriate funds for the commission to carry out its duties totaling at least $750,000.

Selection of maps

Maps would have required the approval of at least six of the nine members, (a two-thirds (66.67%) vote), including at least two commissioners from each of the three pools. Maps would have needed to be constructed so as to have similar total populations among each federal congressional district to be established. For state legislative districts, populations could not have varied by more than 3% from the total population of the state according to the census divided by the total number of districts to be created for each chamber.

The commission would have been required to create three different maps for federal districts and state house and senate districts. The amendment would have required districts not to "unduly favor or disfavor any political party" when viewed on a statewide basis. Commissioners would have been tasked with creating maps using the following criteria, with the most important criteria first, as follows:

• districts shall be contiguous, bounded by an unbroken line, and consisting of undivided components that connect at more than a single point;
• districts shall not deny or abridge the right to vote on account of race or language;
• districts shall not divide counties or cities unless necessary to meet other requirements under the amendment;
• districts shall be reasonably compact;
• districts shall promote competition among political parties, where reasonably feasible after satisfaction of the preceding criteria.

The commission would have conducted at least one hearing in each congressional district and publicly release the district maps for public comment at least 30 days prior to the hearing. All maps would have needed to have an accompanying report explaining the commission's reasoning behind the districts.

Final maps would have needed to be certified to the secretary of state by November 1 and would take effect unless a petition for review was filed with the state supreme court within 30 days of certification. If the supreme court mandated changes to the maps, the commission would have certified revisions to the secretary of state and such maps would have taken effect within 30 days.

Text of measure

Popular name

The popular name for this initiative is below:

“

The Arkansas Citizens' Redistricting Commission Amendment

”

Full text

The full text of the measure is available here.

Support

The initiative was sponsored by Arkansas Voters First.

Arguments

Arkansas Voters First argued, "Out-of-state political operatives and lobbyists in Little Rock want to strike backroom deals with Arkansas politicians and draw voting districts so their chosen candidates win. This is unfair and wrong. It makes our politicians less accountable to the citizens and the issues we care about. Voters should choose politicians, not the other way around. Arkansas Voters First is working to put power back into the hands of Arkansas citizens by advocating for a fair and transparent redistricting process overseen by a Citizens’ Redistricting Commission. This model is the gold standard and has proven to limit the influence of lobbyists and entrenched special interests who would otherwise corrupt Arkansas’ redistricting process."

Opposition

If you are aware of any opponents or opposing arguments, please send an email with a link to editor@ballotpedia.org.

Polls

See also: Ballotpedia's approach to covering polls and 2020 ballot measure polls

The League of Women Voters of Arkansas commissioned Mercury Analytics to conduct a poll of 600 Arkansas voters from July 16-July 18, 2020. Respondents were asked if they supported or opposed "establish[ing] an independent citizens commission to oversee the drawing of boundary lines for congressional and state legislative districts instead of allowing politicians to draw their own district lines." Poll results are summarized below.

Arkansas Redistricting Commission Amendment (2020)
Poll	Support	Oppose	Margin of error	Sample size
Mercury Analytics poll 7/16/20 - 7/18/20	65.0%	17.0%	+/-4.00	600
Note: The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to editor@ballotpedia.org.

Campaign finance

See also: Campaign finance requirements for Arkansas ballot measures

The campaign finance information on this page reflects the most recent scheduled reports that Ballotpedia has processed, which covered through July 31, 2020. The deadline for the next scheduled reports was September 15, 2020.

Arkansas Voters First was registered with the Arkansas Ethics Commission to support the measure. The committee reported $4 million in contributions and $3.5 million in expenditures. The largest donor was Action Now Initiative, which gave $2.1 million. Ballotpedia had not identified committees registered to oppose the measure.

	Cash Contributions	In-Kind Contributions	Total Contributions	Cash Expenditures	Total Expenditures
Support	$3,307,966.00	$693,540.52	$4,001,506.52	$2,852,345.30	$3,545,885.82
Oppose	$0.00	$0.00	$0.00	$0.00	$0.00
Total	$3,307,966.00	$693,540.52	$4,001,506.52	$2,852,345.30	$3,545,885.82

Support

The following table includes contribution and expenditure totals for Arkansas Voters First.

Committees in support of Issue 4
Committee	Cash Contributions	In-Kind Contributions	Total Contributions	Cash Expenditures	Total Expenditures
Arkansas Voters First	$3,307,966.00	$693,540.52	$4,001,506.52	$2,852,345.30	$3,545,885.82
Total	$3,307,966.00	$693,540.52	$4,001,506.52	$2,852,345.30	$3,545,885.82

Donors

The top four donors contributed 60.67% of the funds received by Arkansas Voters First were as follows.

Donor	Cash Contributions	In-Kind Contributions	Total Contributions
Action Now Initiative	$1,800,000.00	$303,500.00	$2,103,500.00
Campaign Legal Center	$0.00	$461,702.02	$461,702.02
Represent.Us Education Fund	$0.00	$95,451.72	$95,451.72
North Fund	$0.00	$85,000.00	$85,000.00

Methodology

To read Ballotpedia's methodology for covering ballot measure campaign finance information, click here.

Background

Redistricting in Arkansas

See also: Redistricting in Arkansas, Redistricting in Arkansas after the 2020 census

Arkansas' four United States representatives and 135 state legislators are all elected from political divisions called districts. Redistricting is the process of drawing new congressional and state legislative district boundaries.

Going into the 2020 general election, the Arkansas General Assembly was responsible for drawing federal congressional district lines. Both chambers of the state legislature must approve a single redistricting plan. The governor may veto the lines drawn by the state legislature.

Arkansas' state legislative district lines are drawn by a politician commission, the Arkansas Board of Apportionment. The commission is composed of the governor, the secretary of state, and the attorney general.

The Arkansas Constitution requires that Arkansas State Senate district lines be "contiguous, and that they follow county lines except where necessary to comply with other legal requirements." There are no such requirements in place for congressional districts.

Redistricting in Arkansas after the 2010 census

See also: Redistricting in Arkansas after the 2010 census

Following the 2010 United States Census, Arkansas neither gained nor lost congressional seats. At the time of redistricting, Democrats controlled the state Senate, the state House, and the governorship. In the wake of the 2010 election, however, Republicans held three congressional seats.

On April 14, 2011, Governor Mike Beebe signed the new congressional district map into law. That same year, Ross announced his retirement from the United States House of Representatives. In the election that followed, Democrats lost District 4, marking the first time since Reconstruction that Democrats had not held at least one of the state's congressional seats.

On July 29, 2011, the Arkansas Board of Apportionment approved new state legislative district maps. Governor Mike Beebe and Attorney General Dustin McDaniel, both Democrats, voted to approve the maps. Secretary of State Mark Martin, a Republican, dissented. The new state House map reduced the number of majority-minority districts from 13 to 11.

On January 23, 2012, state senator Jack Crumbly and a group of residents from eastern Arkansas filed suit against the Arkansas Board of Apportionment. The plaintiffs alleged that the new district lines constituted a racial gerrymander by diluting the black vote in Crumbly's district. On September 17, 2012, the United States District Court for the Eastern District of Arkansas "rejected the plaintiff's challenges, upholding the state plan against racial gerrymandering and Voting Rights Act claims."

2020 census and redistricting

District lines are redrawn every 10 years following completion of the United States census. Federal law stipulates that districts must have nearly equal populations and must not discriminate on the basis of race or ethnicity. The United States Census Bureau will deliver apportionment counts to the president of the United States by December 31, 2020. The bureau will release counts to the states for redistricting purposes by April 1, 2021.

Methods of redistricting in U.S.

In general, states vest one of the following three entities with redistricting authority:

1. State legislatures: In 37 of the 43 states required to conduct congressional redistricting, state legislatures have the final authority to draft and implement congressional district maps. Likewise, in 37 of the 50 states, state legislatures are primarily responsible for state legislative redistricting. In these states, legislatures typically adopt district lines by a simple majority vote in each chamber. A state's governor may usually veto the legislature's redistricting plan.
2. Independent commissions: The composition of independent redistricting commissions varies from state to state. However, in all cases, the direct participation of elected officials is limited. Independent redistricting commissions exist in six states (in four of these states, independent commissions draw congressional and state legislative boundaries; in two, independent commissions draw only state legislative district boundaries).
3. Politician commissions: The composition of politician redistricting commissions varies from state to state. For example, in some states, specific officials (e.g., governors, secretaries of state, etc.) are de facto commission members; in others, legislative leaders appoint other legislators to serve as commissioners. In all cases, elected officials may participate directly by sitting on the commissions. In two of the 43 states required to conduct congressional redistricting, politician commissions are responsible for drawing the maps. In seven states, politician commissions are responsible for state legislative redistricting.

Procedures for congressional redistricting in U.S.

Most states are required to draw new congressional district lines every 10 years following completion of United States Census (those states comprising one congressional district are not required to redistrict). In 33 of these states, state legislatures play the dominant role in congressional redistricting. In nine states, commissions draw congressional district lines. In two states, hybrid systems are used, in which the legislatures share redistricting authority with commissions. The remaining states comprise one congressional district each, rendering redistricting unnecessary. See the map and table below for further details.

Procedures for state legislative redistricting in U.S.

In 34 of the 50 states, state legislatures play the dominant role in state legislative redistricting. Commissions draw state legislative district lines in 14 states. In two states, hybrid systems are used, in which state legislature share redistricting authority with commissions. See the map and table below for further details.

Path to the ballot

See also: Laws governing the initiative process in Arkansas

The state process

In Arkansas, the number of signatures required to qualify an initiated constitutional amendment for the ballot is equal to 10 percent of the votes cast for governor in the most recent gubernatorial election. Proponents must collect signatures equaling at least half of the designated percentage of gubernatorial votes in at least 50 of the state's counties. Signatures remain valid until the date of the next general election following the certification of ballot language. Signature petitions must be submitted four months prior to the election at which the measure is to appear.

The requirements to get initiated constitutional amendments certified for the 2020 ballot:

• Signatures: 89,151 valid signatures were required.
• Deadline: The deadline to submit signatures was July 3, 2020.

If the secretary of state certifies that enough signatures were submitted in a petition, the initiative is put on the ballot. If a petition fails to meet the signature requirement, but the petition has at least 75 percent of the valid signatures needed, petitioners have 30 days to collect additional signatures or demonstrate that rejected signatures are valid.

Details about this initiative

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• The initiative was filed on March 16, 2020.

• On March 19, 2020, Arkansas Voters First, the campaign behind the ballot initiative to establish an independent redistricting commission, suspended signature-gathering efforts due to the coronavirus pandemic. George Shelton of Arkansas Voters First said, "Obviously, this is a completely unheard of circumstance, so we're working to adjust our strategy. We'll use the next few weeks to make sure our signature gathering operation is completely fine-tuned. Once everything is lifted, we want to hit the ground running."

• Arkansas Voters First filed a lawsuit against Secretary of State John Thurston on April 22 seeking relief from certain signature petition requirements, such as in-person signature, witness, and notary requirements. The group asked to be allowed to gather electronic signatures and asked for the deadline to be extended to August 3, 2020.

• U.S. District Judge P.K. Holmes issued a preliminary injunction waiving the requirement that petition circulators physically witness signatures, thereby allowing sponsors to collect remote petition signatures. The judge declined to allow electronic signatures and declined to push back the signature deadline. The state appealed the ruling, and the 8th U.S. Circuit Court of Appeals stayed Holmes' ruling while considering the state's appeal.

• Arkansas Voters First reported submitting over 100,000 signatures to the Secretary of State on July 6, 2020.

• Secretary of State John Thurston issued a statement of insufficiency for the redistricting initiative and the top-four ranked-choice voting initiative on July 14, 2020. Thurston determined that signatures that were submitted on July 6 for the initiatives were insufficient under § 7-9-601(b)(3), which requires sponsors to certify that canvassers passed background checks.

• The measure's ballot title was certified by the state Board of Election Commissioners on July 22, 2020.

• Thurston provisionally certified the measure for the ballot on August 21, 2020. On August 27, 2020, Arkansas Supreme Court ruled in favor of John Thurston, removing the measure from the ballot and ordering votes for the measure not to be counted.

Open Primaries Arkansas and Arkansas Voters First lawsuits

  

Lawsuit overview
Issue: Whether the certifications that petition circulators passed background checks are in accordance with Arkansas Code § 7-9-601(b)(3) and, consequently, whether or not the signatures collected are valid
Court: Arkansas Supreme Court
Ruling: Ruled in favor of John Thurston; measures removed from ballot
Plaintiff(s): Arkansas Voters First, Open Primaries Arkansas	Defendant(s): Secretary of State John Thurston
Plaintiff argument: The background check certifications comply with state law and signatures are valid	Defendant argument: The background check certifications do not comply with state law and signatures are therefore not valid

  Source: Arkansas Times

Secretary of State John Thurston issued a statement of insufficiency for the redistricting initiative, top-four ranked-choice voting initiative, and the casino initiative on July 14, 2020. Thurston determined that signatures that were submitted on July 6 for the three citizen initiatives were insufficient under § 7-9-601(b)(3), which requires sponsors to certify that canvassers passed the background checks. Arkansas Wins in 2020, sponsors of the amendment to authorize 16 additional casinos, failed to file the certification. Arkansas Wins in 2020 challenged the insufficiency, but dropped their legal challenges and ended their attempt to qualify for the 2020 ballot on August 7, 2020. Arkansas Voters First (sponsors of the redistricting measure) and Open Primaries Arkansas (sponsors of the ranked-choice voting measure) submitted certifications stating that the background checks were acquired, but did not say they were passed. Thurtson's statements of insufficiency for the measures came a day after Special Master Mark Hewett determined signatures submitted on January 31 for the optometry referendum were invalid for the same reason. Hewett's report was filed with Arkansas Supreme Court for a final determination. Retired Circuit Judge John Fogleman was appointed by the Arkansas Supreme Court on July 24, 2020, as a special master to resolve the disputes between Arkansas Voters First, Open Primaries Arkansas, and the Secretary of State concerning petition circulator background check certifications and signature validity. The report was submitted to the state supreme court on August 10, 2020. Fogleman concluded that the Supreme Court must decide whether or not the campaigns' certifications comply with Arkansas Code § 7-9-601(b)(3), which requires sponsors to certify that canvassers passed the background checks. Fogleman said if the court finds that the certifications do not comply with state law, then neither petition has enough valid signatures to qualify for a cure period to collect additional signatures to cure insufficiency. Fogleman said if the court finds that the certifications do comply with state law, then the Secretary of State erroneously rejected 586 signatures for Open Primaries Arkansas' measure. The ranked-choice voting initiative and the redistricting initiative were certified for the ballot on August 21, 2020, 74 days before the November 2020 general election. Secretary of State John Thurston certified both measures for the ballot "for coding purposes and preparation purposes only, pending the outcome of the litigation." Under Arkansas Code § 7-5-204, if the secretary of state has not determined a petition's sufficiency by the 75th day before the general election or if a measure is being challenged in court, the measure must be placed on the ballot. If the measure is later declared insufficient or invalid, votes for the measure will not be counted or certified. On August 27, 2020, Arkansas Supreme Court ruled in favor of John Thurston. Associate Justice Robin Wynne, who wrote the majority opinion, said, "Simply acquiring or obtaining a background check is not sufficient under the plain language of the statute. The results of the background checks are not required to be filed with the Secretary of State, and the certification is the only assurance the public receives that the paid canvassers ‘passed’ background checks." The state supreme court ruled, "In sum, we hold that petitioners did not comply with Arkansas Code Annotated section 7-9-601(b)(3) when they failed to certify that their paid canvassers had passed criminal background checks. Accordingly, the initiative petitions at issue are insufficient and petitioners are not entitled to a cure period or any other relief." Justice Josephine Linker Hart dissented, writing, "Today, the majority has disenfranchised more than 90,000 citizens. By signing the petition, these registered voters clearly manifested their desire to have these issues placed on the ballot. ... there is no evidence that the certification language directly affected the validity of even a single petition part." On August 28, Arkansas Voters First asked the Supreme Court to rehear the case.

League of Women Voters of Arkansas lawsuit

Lawsuit overview
Issue: Whether the certifications that petition circulators passed background checks are in accordance with Arkansas Code § 7-9-601(b)(3) and, consequently, whether or not the signatures collected are valid and whether the amendment should be included on the November 2020 ballot
Court: Federal court for the Western District of Arkansas
Plaintiff(s): League of Women Voters of Arkansas, Arkansas Voters First	Defendant(s): Secretary of State John Thurston

  Source: Talk Business and Politics

The League of Women Voters of Arkansas filed a lawsuit in federal court on September 2, 2020, arguing that the measure should be included on the November 2020 ballot. Bonnie Miller, League of Women Voters of Arkansas member and Arkansas Voters First chairperson, said, "Given the technicality the court used to remove our amendment from the ballot, we owe it to the 150,000 registered Arkansas voters who signed our petitions to exhaust every legal avenue. The voters who signed our petition deserve the right to vote on an independent redistricting commission. We will continue to fight for them until they are allowed to vote for fair maps in our state." The Campaign Legal Center represented plaintiffs.

See also

2020 measures

• 2020 ballot measures
• Redistricting measures on the ballot
• 2020 petition deadlines

Arkansas

• Arkansas ballot measures
• Arkansas initiative laws

News and analysis

• Ballot measure lawsuits
• Ballot measure readability
• Ballot measure polls
• Ballot measure signature costs

External links

• University of Arkansas: Arkansas 2020 Statewide Ballot Issues
• Full text

Support

• Arkansas Voters First campaign website

Opposition

Submit links to editor@ballotpedia.org.