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NWA EDITORIAL | Tradition isn’t a strong enough reason for lawmakers to ignore a constitutional requirement

Lawmakers need to follow constitution by NWA Democrat-Gazette | May 24, 2023 at 8:00 a.m.

"If it shall be necessary for the preservation of the public peace, health and safety that a measure shall become effective without delay, such necessity shall be stated in one section, and if upon a yea and nay vote two-thirds of all the members elected to each house, or two-thirds of all the members elected to city or town councils, shall vote upon separate roll call in favor of the measure going into immediate operation, such emergency measure shall become effective without delay."

-- Arkansas Constitution

A constitution is, without question, one of the most important legal documents of any state. It is the foundation of all other laws and the structure of government.

Arkansans count on their political leaders to respect and stay within the bounds of that document, which is the most essential expression of the people's will. It has been amended more than 100 times.

For most Arkansans, the impact of the state constitution comes into view only when a court cites some portion of it in either validating or invalidating a law passed by the Arkansas General Assembly or county or city governments.

It can seem like inside baseball, devil-in-the-details kind of stuff. In short, it's designed to serve as guard rails within which government can operate and protect the rights of the people.

Whether a law or government action is unconstitutional only becomes clear when the courts -- ultimately the Supreme Court -- say so.

In the case of emergency clauses, the Arkansas constitution seems abundantly clear. As reflected in this editorial's opening quote, such clauses are in effect when lawmakers "shall vote upon separate roll call in favor of the measure going into immediate operation."

A lawsuit attempting to thwart Gov. Sarah Huckabee Sanders top-priority LEARNS Act doesn't just challenge the legality of the act, but the way lawmakers voted on it. Without an emergency clause, legislation becomes effective 91 days after the General Assembly adjourns. With it, the law has immediate effect.

For decades, state lawmakers have approved bills and their accompanying emergency clauses in a single vote. House Speaker Matthew Shepherd contends the Legislature gets to determine the rules for how it votes. So they take one vote to pass the law and impose the emergency clause, then record them as separate votes in official journals.

We're not lawyers. We don't know whether the Legislature's lackadaisical attitude about what the constitution requires is significant enough to invalidate or delay implementation of Sanders large-scale education reforms. The legislation, after all, passed with significantly more support than necessary.

But does a tradition of ignoring a constitutionally required practice render that requirement moot, as Shepherd and anyone else supporting the LEARNS Act seem to suggest?

We certainly have seen, at the local level, city council or quorum court members who vote for passage of an ordinance only to turn around and vote against the emergency clause. When they have no reason to believe an emergency really exists, they often will say so with their votes. The law's passage and whether it goes into immediate effect really are two separate questions.

When the constitution says it demands a separate vote, how can a party that practically demands a literal reading of the U.S. Constitution suggest a state constitution has lots of wiggle room based solely on the fact the Legislature has been ignoring it for so long?

Lawmakers can't, and shouldn't, just shortcut procedure because their gut tells them they've got majority support. A constitutional requirement doesn't, on its face, seem optional.

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