dissenting. The petitioner ticase, Harry ce, individually and on behalf of Arkansans to Protect Police, Libraries, Education & Services (APPLES), failed to comply with the statutory requirements for contesting a popular name, ballot title, and amendment. I would dismiss his petition for lack of subject-matter jurisdiction in this court due to this failure to comply with those requirements. Hence, I would not review the merits of this case. For that reason, I dissent.
Act 877 of 1999, now codified at Ark. Code Ann. §§ 7-9-501 through 506 (Repl. 2000), declares that its purpose “is to provide for the timely and expeditious review of the legal sufficiency of initiative petitions by the Supreme Court.” Ark. Code Ann. § 7-9-501 (Repl. 2000). In describing the procedure for contesting the legal sufficiency of a ballot title, section 2 of Act 877, now codified at § 7-9-503, provides:
(a) (1) Any Arkansas taxpayer and voter may submit a written petition to the Secretary of State requesting the determination of legal sufficiency of statewide initiative petitions.
(2) The petitioner shall notify the sponsor of the measure of the petition for determination by certified mail on the date that it is submitted to the Secretary of State.
(b) Within thirty (30) days after receipt of the petition for determination, the Secretary of State shall decide and declare, after consultation with the Attorney General, questions on one (1) or both of the following issues:
(1) Whether the popular name and the ballot title of the measure are fair and complete; and
(2) Whether the measure, if subsequently approved by the electorate, would violate any state constitutional provision or any federal constitutional, statutory, or regulatory provision or would be invalid for any other reason.
(c) The declaration shall be in writing and shall be mailed to the petitioner and the sponsor of the measure by certified mail on the date that it is issued.
(d) The scope of review authorized by this subchapter shall be strictly limited to the questions referred to in subsection (b) of this section and shall not include questions regarding the sufficiency or validity of signatures on the initiative petitions.
Ark. Code Ann. § 7-9-503 (Repl. 2000) (emphasis added).
Not one of the requirements set out in Act 877 was followed by Ward in this case:
• Ward failed to file a petition with the Secretary of State requesting a determination of legal sufficiency.
• The sponsor (ALERT) was not notified of such a petition.
• The Secretary of State never consulted with the Attorney General about legal sufficiency.
• There was no declaration by the Secretary of State that the initiative was fair and complete and would not violate the State or Federal Constitution or State statutes.
• No declaration of legal sufficiency by the Secretary of State was mailed to the sponsor (ALERT).
In the face of all this, counsel for Ward and APPLES, made the surprising announcement at oral argument that a legal sufficiency declaration had been made by the Secretary of State on September 10, 2002. But that simply is not the case. What did occur on that date is the sponsor (ALERT) received a certification that the signature requirements had been met.1 That certification from the Secretary of State read:
I, Sharon Priest, Secretary of State, State of Arkansas, do hereby certify that the petition submitted for the proposed
An Amendment Eliminating Taxes on Food and Medicine, has met the signature requirements and the requirements of Amendment 7 of the Arkansas Constitution in order to place an initiative on the Arkansas General Election Ballot of November 5, 2002.
There was no confusion on this point. Ward’s own petition admits this: “On September 10, 2002, Respondent [Secretary of State] declared that the petition contained a sufficient number of signatures of registered voters and certified the Amendment to appear on the November 5, 2002 general election ballot.” There is nothing in Ward’s petition filed in this court to suggest that the Secretary of State had declared the initiative legally sufficient. She made no declaration that it was fair and complete, constitutional, and in compliance with state statutes. And, again, the procedures for a legal-sufficiency determination were simply not followed, as required by Act 877. To argue that notice to the sponsor that sufficient signatures had been obtained equates to a declaration to a petitioner that the ballot title is legally sufficient is an illogical and impermissible stretch.
There is also the point that sponsors like ALERT would not be challenging the legal sufficiency of their own ballot titles and amendments. That would be absurd. Such an interpretation flies in the face of the very language of Act 877, which takes pains to distinguish between the sponsor of the initiative and the petitioner challenging the initiative. This distinction is made in two places in Act 877, as highlighted above. See Ark. Code Ann. § 7-9-503(a)(2) and (c) (Repl. 2000). Again, what the Secretary of State told the sponsor, ALERT, on September 10, 2002, had nothing to do with a legal-sufficiency declaration requested by a petitioner but rather was a certification to the sponsor that the signatures were sufficient.
Nor is Act 877 permissive, as the majority would have it. Nowhere in the Act is there any indication given that the following language merely provides an alternative procedure to Amendment 7:
(a)(1) Any Arkansas taxpayer and voter may submit a written petition to the Secretary of State requesting the determination of legal sufficiency of statewide initiative petitions.
Ark. Code Ann. § 7-9-503(a)(l) (Repl. 2000). What this language manifestly does is provide the authority for a taxpayer and voter to challenge the legal sufficiency of an initiative by petition. This does not mean that the Act 877 process is yielding in any respect to the tired, old way of doing business with last minute challenges filed in this court under Amendment 7. The whole purpose behind Act 877 was to remedy that problem, and it did so.
In a landmark decision in 2000, which was hotly debated among the justices of this court, we upheld the constitutionality of Act 877 and concluded that it did not conflict with Amendment 7 to the Arkansas Constitution but “facilitated” the Amendment 7 process for determining the legal sufficiency of initiatives. See Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251 (2000) (Stilley II). We stated that Amendment 7 contemplated sufficiency determinations by the Secretary of State on signatures as well as legality. It is true that in that case, the petition for a declaration of legal insufficiency had been filed before the gathering of signatures. But whether a petition for legal insufficiency is filed before or after the gathering of signatures is irrelevant under Act 877, as that Act makes no such distinction. Whatever the time the petition is filed contesting the ballot title and amendment, the procedures of Act 877 must be complied with, and that was not done in this case.
The result of today’s decision is that for all intents and purposes Act 877 has been eviscerated, and we are back to the preAct 877, frenzied practice of ballot-title challenges being filed just days before an election. Petitions contesting ballot initiatives at the eleventh hour on unfair, incomplete, or illegal grounds will, once again, become commonplace, after the sponsor has collected the required signatures. Act 877 will be tossed aside for late challenges, which means the whole reason for Act 877’s being has been abandoned. And this court will not have the benefit of a review of legal sufficiency of the ballot title and amendment by the Secretary of State in consultation with the Attorney General.
A challenge at the last minute is precisely what this court has tried to avoid for many years. In fact, this court specifically called on the General Assembly to rectify the situation in at least two cases. See Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996) (emphasizing again our earlier request for the General Assembly to attempt to establish an initiative procedure that would permit early resolution of ballot-title issues); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994) (encouraging the General Assembly to make another attempt to establish an initiative procedure for early resolution of ballot-title issues). The General Assembly did so with the enactment of Act 877. In doing so, it spoke for the people of this State who chafed at last minute petitions, which often resulted in issues being struck from the ballot mere days before the election.
The majority opinion simply unravels what has been accomplished over the past three years and breathes new life into the once-defunct system of last minute ballot challenges. Not only has the majority retrenched, gutted Act 877, and overruled Stilley II, which requires Act 877 adherence, it has also treated petitioners in other cases differently. See, e.g., Stilley v. Priest, 340 Ark. 259, 12 S.W.3d 189 (2000) (per curiam) (Stilley I). In Stilley I, we required Stilley, as a petitioner, to jump through the Act 877 procedural hoops. He had not done so, and we said that was a prerequisite to our review. Today, we do not require Ward to do the same. The majority’s explanation is that Ward is not required to comply with Act 877, because he filed a petition after signatures had been gathered. Again, Act 877 does not make this pre-signatures/post-signatures distinction that the majority has crafted. Nor does Amendment 7. In short, the majority’s conclusion that Act 877 does not apply to post-signature petitions has no basis in reality. There is nothing in Act 877 to remotely suggest that.
But Act 877 is now history, and eleventh-hour challenges, after signatures have been collected, are back in vogue. That is a terrible turn of events, not only for the ballot title before us today but for future ballot-title contests. I would dismiss the Ward petition for lack of subject-matter jurisdiction in this court and not address whether the popular name and ballot title for this amendment adequately inform the voting public.
Glaze and Corbin, JJ., join.A sponsor is defined as “a person or group of persons fifing an initiative or referendum petition with the Secretary of State.” Ark. Code Ann. § 7-9-101(8) (Repl. 2000).