UACES Facebook House Committee Rejects Amendment 7 Test Case on Road Tax Corrections
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House Committee Rejects Amendment 7 Test Case on Road Tax Corrections

by Kristin Higgins - April 11, 2023

The legislative session is all but officially over. We're digging into a Senate Bill that might not have caught many people's attention when it stalled in the House Committee on Public Transportation.

Though SB445 sought to make technical corrections to a recent highway funding amendment, it was admittedly a test case to see whether Arkansas legislators could use a 1920 constitutional amendment that says they can amend ballot measures with a 2/3 vote.

Watch the Legislative Committee Discussion

Background

Arkansas voters in 2012 approved a temporary half-cent sales tax to back bond issues for "four-lane highway construction." Funding raised by Amendment 91 went on to pay for millions of dollars worth of project at the local and state level.
 
But the "four-lane highway" phrase included in the legislatively-referred amendment landed the issue in court with doubts over whether the money could be used to expand Interstate 630 in Pulaski County. The Arkansas Supreme Court in 2020 ruled the tax dollars couldn't be used for projects over four-lanes.
 
When voters in 2020 approved a new constitutional amendment making the sales tax permanent, the legal question returned. A Pulaski County Circuit Court judge ruled that the new tax dollars from Amendment 101 couldn't be used in projects over four lanes since the amendment was an extension of the previous tax.
 
The Arkansas Supreme Court reversed that ruling on March 16, 2023, stating Amendment 101 didn't mention four-lane highways like the previous amendment. The case now goes back to circuit court.
 
Legislators filed Senate Bill 445 the same day as the Supreme Court released its opinion. The bill sought to amend Amendments 91 and 101 to allow funding to be used for multi-lane highway improvements. It passed the Senate but stalled in the House Committee on Public Transportation where committee members said they would rather see the issue corrected through a constitutional amendment referred to voters.
 
Rep. Matthew Brown told the committee the bill was a "technical correction," changing "four lane" to "multi-lane."
 
"I think that accomplishes the goal of the amendment as originally passed by the voters ...," he said at the April 4 meeting.
 
"Now you may ask, how we can do that? We're relying on Amendment 7 which was an amendment to the constitution in 1920s that amended Article 5, Section 1," he said.
 

Amendment 7 of 1920

Amendment 7 established the citizen-initiative process in Arkansas. The state is one of 15 where citizens can propose constitutional amendments, state laws and veto referendums. Amendment 7 includes a definition of "Amendment and Repeal," which says:
 

"No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any City Council, except upon a yea and nay vote on roll call of two-thirds of all the members elected to each house of the General Assembly, or of the City Council, as the case may be."

Amendment 7 defines "measure" to include constitutional amendments. However, in 1951, the Arkansas Supreme Court ruled that when it came to repealing or changing amendments, justices didn't think the legislature meant to go that far with the 1920 ballot issue. Brown said the Supreme Court of today seems more inclined to look back at the actual wording.
 
"I think the intent of Article 5, Section 1 is just like this, where we've got an issue where we are making a technical correction, and that is what this bill is intending to do," Brown said, adding that he recognized the bill would be a test case and would invite lawsuits.
 
"What we're really trying to do is get some clarification from the supreme court in that does Article 5, Section 1 allow the General Assembly to make technical corrections with a super majority vote or would it require another constitutional amendment?"
 
Brown said poor drafting of Amendment 91 didn't take into account that interstates would be widened in the future. SB445 would affect future projects if passed, he said, and not Interstate 30.
 

Opposition to SB445

Former Attorney General Dustin McDaniel spoke against Senate Bill 445 during the April committee meeting.
 
"The subject matter of the bill is not the least bit controversial," said McDaniel, who was in charge of reviewing citizen initiative ballot titles during his time in office.
 
"There is this little time bomb in our constitution that's been there since this awkward wording of a definition of a 'measure' ...," McDaniel testified.
 
"If the General Assembly chooses to amend the constitution by a vote of members and skip the process of allowing the people to vote on the constitution and the Supreme Court overturns the Edgmon case, at that point, every two years, every legislative session will be a constitutional convention. There will be nothing off the table. Higher ed, Game and Fish, highways, marijuana, casinos, lotteries, term limits, everything. Every session will be a constitutional convention. And some people may want that," he said.
 
Rep. RJ Hawk asked McDaniel how he would fix the situation.
 
“There’s an easy fix available to you already in the constitution, which is you get to refer three amendments to the voters. I don’t think that 100 years ago the idea was that the legislature would refer three of the most controversial ideas they could come up with every two years. I think that it was designed to skip the signature gathering process and fix things in the constitution that need the attention with the hullabaloo of signatures and all of that. This would be a perfect thing to refer,” he said.
 
McDaniel pointed to HJR1006, and how that is going back before the voters on the 2024 ballot. Voters are being asked to expand lottery scholarships to technical schools by amending the constitutional amendment they previously approved in 2008.
 

Interim Study?

SB445 failed on a voice vote. Brown thanked members and said he realized it was a sticky issue.
 
"We've got to figure out the law one way or another," Brown said.
 
According to the General Assembly website, the last action for SB455 took place April 7, where it was noted the bill was "recommended for study in the Interim Committee on Transportation, Technology & Legislative Affairs" in the Senate.
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