Pope County Ordinance 2018-O-42; repealed by the Quorum Court and declared unconstitutional by a circuit judge.
A Pope County “local control” issue over a casino lingers on in an appeal lodged before the Arkansas Supreme Court and in the opinions of many anti-casino pope county residents. These opinions probably had an impact on the results of the JP races in the March primary election.
The ordinance was supposed to give local voters a say in any eventual casino that would come to Pope County. However, with “The Arkansas Casino Gaming Amendment of 2018,” Amendment 100, being voted on in the same election, the local control measure was null and void as soon as it was approved by the voters in November 2018. Nearly a year later, Fifth Circuit Judge Bill Pierson ruled that Ordinance 18-O-42 is in direct conflict with Amendment 100 to the Arkansas Constitution and is unconstitutional and void.
Many voters have since said that they were confused by the ballot wording or that the ordinance that they got was not what they thought they were voting for. The ballot wording and the enacted ordinance wording actually differed significantly.
The 2018 “local vote” initiative was never a yes or no vote on having a casino in Pope County.
It was a vote for a county ordinance to place restrictions on the judge and quorum court, prohibiting them from providing support documents without authorization by the voters. According to the ordinance passed by Pope County voters,
The County Judge shall be prohibited from issuing a Letter of Support or substantially giving similar approval or support for a Casino Applicant who is applying to the Arkansas Racing Commission, or other governing authority, for a license to conduct Casino Gaming at a Casino to be located in Pope County, Arkansas without first referring the question as to the issuance of support of a Casino or Casino Applicant to a local election, at either a general election or special election, where in order for the County Judge to issue any such support letter or similar, a majority of the registered voters of Pope County, Arkansas must approve and authorize the County Judge to take such action.
A similar requirement was placed on the quorum court.
Before the ruling by Judge Pierson, it was apparent that there were a number of problems associated with the ordinance including that it was likely contrary to Amendment 100 and, if so, was effectively repealed by Article 5 of the Arkansas Constitution:
Local for Municipalities and Counties.
The initiative and referendum powers of the people are hereby further reserved to the legal voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.
Ballot wording
Pope County Ordinance No. 2018-O-42
An Amendment to prohibit the County Judge from submitting a letter in support or the Quorum Court from passing a resolution on behalf of a casino applicant applying to the Arkansas Racing Commission for a license to conduct casino gaming at a casino to be located within Pope County, Arkansas without first holding a local election at either a general election or a special election to determine by popular vote the will of the people of Pope County whether to grant the authority to their elected officials to submit such a letter or resolution.
Differences between ballot wording and ordinance wording
Prohibition on issuing support documents.
Ordinance: “…issuing a Letter of Support or substantially giving similar approval or support for a Casino Applicant who is applying to the Arkansas Racing Commission, or other governing authority, for a license to conduct Casino Gaming at a Casino to be located in Pope County, Arkansas without first referring the question as to the issuance of support of a Casino or Casino Applicant to a local election…”
Ballot: “…a local election… to determine… the will of the people of Pope County whether to grant the authority to their elected officials to submit such a letter or resolution.”
The public and the county officials learned at a quorum court meeting on June 11 that the intent of the ordinance “was for the Quorum Court to vet and choose an operator and then put that operator up for a vote. No one on the Court or the County Judge had ever heard that explanation. If that truly was the intent of the ordinance then we knew that was impossible for us to comply with. In no way is that option legal or even remotely a good answer to how to conduct this issue.” (JP Caleb Moore on Travis Story’s explanation of the purpose of 2018-O-42, from Moore’s August 13, 2019, statements)
Knowing that intent, one can see how the ordinance might be read that way. However, that’s not so easy to see with the ballot wording. Almost certainly, most voters did not vote on the issue understanding it the way Mr. Story said it was intended.
The Required Vote
Ordinance: “…a majority of the registered voters of Pope County, Arkansas must approve and authorize the County Judge to take such action.”
Ballot: “…a general election or a special election to determine by popular vote the will of the people of Pope County…”
Those are obviously two very different things. Literally taken Ordinance 2018-O-42 would have required that just over half of registered voters approve the submitted measure. Seldom in any election does much more than half of the registered voters actually vote. In the 2010 General Election, 15,588 people voted, 49.75% of the registered voters. In that instance, even if they all voted for such a measure, that would not have satisfied the requirement of “a majority of the registered voters.”
While the intent of Mr. Story, author of the ordinance, may have been the majority of a “popular vote” as stated on the ballot, a plain reading of the ordinance stipulates an unattainable result.
Appeal of Citizens for a Better Pope County and James Knight vs Ben Cross et. al. (Case No.58CV-19-439)
After losing their case in the 5th Judicial District Court, the plaintiffs filed a notice of intent to appeal and, recently, have lodged that appeal with the Arkansas Supreme Court. Since 4 of the 7 items ruled on in that case dealt with Ordinance 2018-O-42, the ordinance is not completely dead and buried.