The Honorable Sue Madison State Senator
573 Rock Cliff Road Fayetteville, Arkansas 72701-3809
Dear Senator Madison:
You have asked for my opinion concerning the vote requirement to amend or repeal a city ordinance in the wake of a referendum election. You recite the following as background information and pose the following question:
In 2003, the Fayetteville City Council passed an ordinance making restaurants, workplaces, and most public places smoke-free. A sufficient number of signatures were obtained to declare a referendum election on the ordinance in 2004. At the referendum election, the ordinance was upheld.
Does the fact that the referendum was successfully petitioned for, although defeated at the subsequent election, change the majority vote requirement for the city council to amend or repeal the ordinance, increasing it from a simple majority of the members elected to the city council to a two-thirds majority of the members elected to the city council?
RESPONSE
In my opinion, a two-thirds vote of the council is the vote required to amend or repeal the ordinance that was approved by the voters in a referendum election. This follows from Amendment 7 to the Arkansas Constitution: *Page 2Amendment and Repeal. No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any city council, except upon a yea or nay vote on roll call of two-thirds of all the members elected to each house of the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.1
As several of my predecessors had occasion to observe, the emphasized language, and similar language in the County Government Code, 2 reflects intent to require a greater majority vote (two-thirds rather than a majority) for subsequent action by the state legislature, a city council, or a quorum court with respect to a measure that was approved by the voters through either the initiative or the referendum process.3 When Amendment 7 refers to a "measure approved by a vote of the people," it clearly means both initiated and referred measures. This is reflected in the following provision addressing conflicting measures:
Conflicting Measures — If conflicting measures initiated or referred to the people shall be approved by a majority of the votes severally cast for and against the same at the same election, the one receiving the highest number of affirmative votes shall become law.4
As indicated by the foregoing provision, all measures submitted to the people, whether through the initiative or the referendum, must be "approved by a majority of the votes cast" in order to become law.5 A measure that is referred and approved is therefore plainly a "measure approved," as contemplated by the excerpted provision above governing "Amendment and Repeal." *Page 3
I note that the wording of your question suggests possible confusion on this score owing to the notion that "the referendum was . . . defeated at the subsequent election." This might reflect a view of the referendum as an act to repeal a measure, and the idea that if the referendum fails nothing is "approved" so as to trigger Amendment 7's two-thirds vote requirement. As noted by one of my predecessors, however:
Under a referendum, a legislative act is referred to the voters for their approval or disapproval. It is technically not an act to repeal a measure[;] it simply refers the disputed measure to the electorate for a vote.6
Stated another way, the electors are not voting on the referendum when a referendum election is held on a measure. Rather, they are voting on the measure itself. The referendum petition is simply the means of getting the measure to the voters for their approval or rejection. This is reflected in the Election Code provision that sets out the form of the petition for referendum:
*Page 4We, the undersigned legal voters of the State of Arkansas, or ________ County, Arkansas, or City or Incorporated Town of _____, Arkansas, (as the case may be) respectfully order by this, our petition, that Act No. _____ of the General Assembly of the State of Arkansas, approved on the _____ day of _____, 20__, entitled `An Act' or Ordinance No. ___, passed by the county quorum court, the city (or town) council of the City (or Incorporated Town), or County of _____, Arkansas, on the day of _____, 20__, entitled, `An Ordinance _____,' be referred to the people of said state, county, or municipality (as the case may be), to the end that the same may be approved or rejected by the vote of the legal voters of the state, or of said county or municipality (as the case may be) at the biennial (or annual, as the case may be, if a city ordinance) regular general election (or at a special election, as the case may be) to be held on the ___ day of _____, 20__[.]7
In sum, it is my opinion based on the foregoing that a two-thirds vote is required to amend or repeal an ordinance that was approved by the voters in a referendum election.
Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL Attorney General
DM/EAW:cyh
1 Ark. Const. art. 5, § 1 (codification of Amendment 7, under "GENERAL PROVISIONS," emphasis added).
2 A.C.A. § 14-14-918(b) (Repl. 1998).
3 See Op. Att'y Gen. Nos. 97-194; 92-323; 91-044; 90-126; 90-016. See also Op. Att'y Gen. 2003-030 at n. 2 (regarding the possible implied amendment or repeal of a venue act that was referred to a vote of the people and adopted). Amendment 7 reserves to the voters the power to both initiate, i.e., enact laws, and refer to the people measures passed by the legislative body. Ark. Const. art. 5, § 1 (under "Initiative," "Referendum," and "Local for Municipalities and Counties.")
4 Ark. Const. art. 5, § 1 (under "GENERAL PROVISIONS," emphasis added).
5 Id. (under "Majority").
6 Op. Att'y Gen. 91-044 (further explaining that if the votersreject a measure at a referendum election, they havedisapproved it and the two-thirds vote requirement is inapplicable because there is nothing for the legislative body to amend or repeal).
7 A.C.A. § 7-9-105(a) (Repl. 2007) (emphasis added).