LITTLE ROCK — An attorney for Michael Wasserman told the state Supreme Court on Thursday that Secretary of State Mark Martin did not follow the law when he rejected a petition for the Texas businessman’s ballot proposal for casino gambling in Arkansas without allowing time to correct deficiencies in the petition.
A deputy secretary of state and an attorney representing the state’s racing industry argued that Martin properly rejected the petition.
The state’s highest court heard oral arguments but did not immediately issue a ruling in Wasserman’s lawsuit seeking to overturn Martin’s ruling that Wasserman did not submit enough signatures in support of his proposed constitutional amendment to authorize casino gambling in seven counties.
Martin ruled that Wasserman failed to meet the requirement that he submit a number of signatures of registered voters equal to at least 5 percent of the vote in the 2010 gubernatorial election from at least 15 different counties. He did not allow Wasserman extra time to collect additional signatures.
Wasserman’s attorney, John Harmon, argued Thursday that Martin is required by law to allow 30 days to correct deficiencies in a petition, including an insufficient number of signatures, unless the petition is invalid on its face, or prima facie. Harmon argued that the petition was not invalid on its face and that it became deficient only after Martin’s office threw out signatures it deemed invalid.
Martin "got to digging and tried to figure out how to keep this off the ballot," Harmon said.
A.J. Kelly, a deputy in Martin’s office, argued that a petition is invalid on its face if, after obviously invalid signatures are thrown out, the petition does not meet the 5 percent threshold in 15 counties.
Chief Justice Jim Hannah pointed out that backers of other ballot issues were allowed 30 days to collect more signatures if their petitions met the overall requirement of a number of signatures equal to at least 10 percent of the vote statewide in the last gubernatorial election.
"It seems to me you have a different standard for that overall number," Hannah said.
Kelly said the secretary of state’s office does not have different standards for the different criteria. He said additional time is not allowed for any petition that fails, on its face, to meet either the statewide threshold or the 15-county threshold.
Kelly also said Wasserman has not submitted any additional signatures while the case has been on appeal.
"They still haven’t submitted additional signatures to get on the ballot, and this court should not be issuing rulings that won’t make a difference," he said.
Harmon said his client will collect additional signatures if the court rules in his favor.
"If the court rules this afternoon, we’ll start tomorrow," he said.
Elizabeth Robben Murray argued before the court on behalf of members of the Arkansas Racing Alliance who are intervenors in the case. Oaklawn Park thoroughbred track in Hot Springs and Southland Greyhound Park in West Memphis are permitted under Arkansas law to operate electronic games of skill, though casino gambling is illegal.
Murray said Wasserman and his company, Arkansas Hotels and Entertainment Inc., are not Arkansas voters and therefore lack standing to appeal Martin’s decision. She also said Wasserman did not present enough information on which the court could base a ruling.
Murray also argued that it was proper for Martin’s office to throw out signatures that were obviously invalid. She said as an example that if a petition reached the 5 percent threshold in a county by containing multiple signatures of Mickey Mouse, "that is not facially valid."
"It’s not the casinos that are being gamed. It’s our initiative process," she said.
Harmon said in his closing arguments that if the court rules in Martin’s favor, "you’ll have established the secretary of state as the most powerful constitutional officer in Arkansas."
He said the initiative process is intended to allow citizens access to the ballot and not to deny ballot access "perhaps just because of the issue involved."
Talking to reporters later, Harmon said Wasserman’s proposal may have been singled out because "there are some moneyed interests in this state that don’t favor anyone else being able to have a gambling place."
Martin spokesman Alex Reed said suggestions that Martin may have been influenced by the racing industry were false.
"We are committed to following the law," Reed said.
Wasserman told reporters he believed his petition was held to a different standard than others.
"I do understand what prima facie means," Wasserman said. "If there are 25 signatures on a piece of paper and you go down, there’s no blanks, there’s 25, you count 25. What they did is say, ‘Well yeah, there’s 25, but let’s look at that and see what they really mean.’ That’s not prima facie."
Despite Martin’s ruling against it, Wasserman’s proposal has been certified for the November ballot because of the appeal. If the Supreme Court rules against Wasserman it could order that votes for the measure not be counted.
Also Thursday, the Supreme Court agreed to hear oral arguments in professional poker player Nancy Todd’s lawsuit challenging Martin’s rejection of her proposed constitutional amendment to allow casino gambling in four counties. Martin rejected that proposal after determining that the wording of the ballot question did not adequately state how the amendment would affect electronic games of skill at the race tracks.
The court did not immediately announce a date for oral arguments in the case, nor did it set arguments in a legal challenge of a ballot initiative to legalize marijuana use for medicinal purposes in Arkansas.
A coalition of Christian conservative groups petitioned the Supreme Court last week to invalidate Martin’s certification of the proposed Arkansas Medical Marijuana Act for the November ballot. Martin has asked the high court to release his office as a defendant in that case.