concurring in part, dissenting in part. The enactment clause issue, which has assumed a curious prominence in this drama, is in reality a petition-sufficiency issue over which this court has original and exclusive jurisdiction. Ark. Const, amend. 7. Since the trial court based its ruling on that issue, we would ordinarily dispose of it on procedural grounds. Under the circumstances of this case, I do not believe that such a disposition would be in the public interest in as much as the enactment clause issue (along with several others) was raised in this court in a pre-election challenge. We declined to decide this issue at that time for the reasons set forth in Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). I agree with the majority’s decision to address the enactment clause issue at this time and dispose of it on its merits.
I also agree with the majority opinion that Amendment 73 is not vulnerable to attack on the enactment clause ground. In the first place, I do not believe that Amendment 7 requires a constitutional amendment to contain an enactment clause. Even if it does, Amendment 73 substantially complies.
The initiative petition, which placed Amendment 73 on the ballot, begins, “We, the undersigned legal voters of the State of Arkansas, respectfully propose the following Amendment to the Constitution of the State of Arkansas . . .” and ends, “and by this, our petition order that the same be submitted to the people of said state, to the end that the same may be adopted, enacted, or rejected by the vote-of legal voters of said state. . . .” (Emphasis supplied.) That does not leave much room for doubt that the voters knew that they were enacting a new law. No one has suggested that the absence of the words “Be it Enacted” misled anyone or had any effect on the outcome of the election. To strike down Amendment 73 for want of a formal enactment clause, after it has been approved by sixty percent of the voters, would be unduly technical and would elevate form over substance.
I agree with the majority opinion which holds that section 3 of Amendment 73 is fatally flawed because it conflicts with Supremacy Clause and the Qualification Clauses of the United States Constitution.
Although the issue is not entirely free from doubt, I believe the founding fathers considered and rejected term limits for members of Congress at the time of the adoption of the United States Constitution by the Constitutional Convention in Philadelphia over two hundred years ago. [See authorities discussed in majority opinion and the dissenting opinion in Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).]
As the majority opinion recognizes, and Justice Hays forcefully argues in his dissenting opinion, whether the founding fathers intended to foreclose the states from imposing additional qualifications for Congressmen was not definitively and categorically settled. In fact, Justice Hays makes a strong case for “minimum” rather than “exclusive” qualifications. But the action finally taken by the framers of the constitution, following exhaustive debates, is strong evidence that term limits for senators and representatives was rejected. Certainly that is the most plausible interpretation; and the specter of the hodge-podge of qualifications which a contrary holding might engender is daunting enough to swing the balance.
Congressional officeholders partake of the same national character as the President of the United States. Members of Congress pass laws which affect not only their own state, but all the states. They are part of the national team which was created by the Continental Congress. The rules which govern their qualifications are contained in the Constitution of the United States. Uniformity of qualifications is paramount, and individual states are not free to engraft variations. The terms for members of Congress can be limited only by amending the United States Constitution.
Does the constitutional infirmity of section 3 vitiate the entire amendment, or is the serum provided by the severability clause strong enough to prevent the spread of the infection?
In Combs v. Glenn Falls Ins. Co., 237 Ark. 745, 375 S.W.2d 809 (1964), this court held that the test of the efficacy of a severability clause is whether the measure would have passed without the unconstitutional portion.
There is no way for this court to determine whether the voters would have approved term limits for state officeholders if section 3 had not been in the picture. The sponsors of Amendment 73 created this uncertainty and, therefore, had the onus to furnish this court something to go on besides speculation. There is nothing in the record to show that this dichotomous issue was explained to the voters in a meaningful way. In short, there was not a straightforward, up-or-down vote on term limits for state officeholders.
There can be no serious doubt that a state has plenary power to impose term limits on state officials, provided it is accomplished in a constitutionally permissible manner. The sponsors of Amendment 73 obviously knew that section 3 was of questionable constitutionality because of the different approach they used: ballot access. They knew that most of the public discussion of term limits had been in the context of congressional officeholders. When they chose to blanket the two groups (state and federal officeholders) into one unified package, the voters had no choice to approve one without the other. The two groups were not only inextricably linked — they were systemically fused in such a manner that each ceased to have a separate existence for voting purposes. Although section 3 is couched in ballot-access terminology, the distinction between outright bar and ballot-access is too fine a point for the average voter to grasp.
The practice of coupling a legitimate objective with one of doubtful legality, papered over with a severability clause, is not fair to voters. It is misleading at the very least, if not downright deceptive, and should be discouraged. We should make it clear to sponsors of constitutional amendments and initiated acts that they are skating on thin ice when they rely on the redemptive power of a severability clause to bail out a shaky joinder. Such a posture will promote truth-in-packaging and thus be voter-friendly.
While “The States’ Rights Amendment” involved in Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958), discussed at length in Justice Dudley’s dissent herein, is admittedly an extreme example, it is illustrative of an effort to couple a legitimate public concern with a less laudable objective, with potential far-reaching consequences. The court simply ignored the severability clause in Hoban and treated it as a ballot title issue rather than a severability clause issue. Of course, those are separate issues, but they have in common the potential for unfairness to voters.
Sections 1, 2, and 3 of Amendment 73 were presented to the voters as an “all or nothing” package. State and federal officials were lumped together and referred to in the Preamble as “elected officials.” Section 6 stated that the provisions of Amendment 73 shall be applicable to “the offices specified in this Amendment.” The offices specified are state and federal officeholders.
Since section 3 cannot pass constitutional muster, sections 1 and 2 must also fall.
I respectfully dissent from the majority holding that the severability clause saved sections 1 and 2.