A series of tweets by a Little Rock attorney has sparked a lawsuit that has bolstered the hopes of some Democrats and self-described public school advocates who are hoping to find a way to block the LEARNS Act from going into effect.
Tucked away in an amendment to Arkansas' Constitution, a parliamentarian procedure has become the center of a lawsuit aimed at blocking the act, drawing the ire of Gov. Sarah Huckabee Sanders and stoking the hopes of others who want to stop the centerpiece of the Republican governor's legislative agenda.
In the coming weeks, courts will likely have to weigh the words of the state's constitution versus a legislative tradition that few, if any, have objected to until now.
The lawsuit, filed last week in Pulaski County Circuit Court, aims to stop a charter nonprofit from taking control of the Marvell-Elaine School District, claiming lawmakers erred when passing the law that enables the takeover. The central claim of the lawsuit is lawmakers failed to properly approve an emergency clause when passing the LEARNS Act, a sweeping overhaul of public education that was the centerpiece of Sanders' legislative agenda.
After becoming law, the legislation does not take effect until 91 days after the General Assembly officially adjourns. But lawmakers can approve what is called an "emergency clause" when voting on a bill, meaning the legislation takes effect immediately upon passage.
During the most recent legislative session, which ended May 1, and in legislative sessions stretching back decades, lawmakers voted on bills and emergency clauses with one vote. But Article 5, Section 1 of the state's constitution says lawmakers "shall vote upon separate roll call in favor of the measure going into immediate operation."
"Therefore, the Emergency Clause in the Arkansas LEARNS Act is invalid and ineffective, meaning that the law is not yet operable in Arkansas," according to the complaint.
The lawsuit also argues the LEARNS Act has a "defective" emergency clause, meaning it does not fit the criteria of what should be considered an emergency under the Arkansas Constitution.
While newly passed laws do not take effect for about three months after the General Assembly adjourns, the state constitution gives lawmakers the ability to approve an emergency clause through a two-thirds vote "if it shall be necessary for the preservation of the public peace, health and safety."
But House Speaker Matthew Shepherd contends the Legislature gets to determine the rules for how it votes. Instead of taking separate votes, the House and Senate record a single vote on a bill with an emergency clause, recording them separately in the official journals.
Critics say the idea lawmakers can cast one vote but have it be recorded separately in the official journal violates the state constitution, while others argue it's a tradition that has gone unchallenged until now.
"For decades, the General Assembly has followed the same constitutional voting procedure regarding emergency clauses; the LEARNS Act is no exception," Attorney General Tim Griffin said in a statement. "It was passed in accordance with the Arkansas Constitution, is currently the law in Arkansas, and I look forward to vigorously defending it."
Josh Silverstein, a law professor at the University of Arkansas at Little Rock, said courts will have to weigh a literal reading of the state constitution, which calls for a "separate roll call" vote versus a time-honored practice that rarely, if ever, had been challenged until last week.
"I think probably the better reading of that language is there has got to be a second vote, but when you have a longstanding practice [on a] constitutional provision, that's given a great degree of weight," Silverstein said.
Silverstein said it is an open question on how the courts will rule but his guess is the lawsuit will fail, saying that when its comes to ambiguity in the constitution the courts will side with the legislative practice.
"If I had to guess I would say the litigation will fail, but I will not be at all surprised if it succeeds," he said.
For as long as some of the state's top politicians and their staff can remember, the emergency clause procedure has not changed.
"When I came to work there as a young attorney, that's what the House and Senate were doing and that has never been challenged," said Steve Cook, retired chief counsel for the state Senate. "So I guess the assumption is nobody had [a] problem or an issue with the procedure."
Cook began working for the Bureau of Legislative Research in 1979, eventually moving to the Senate as a staff attorney in 1985 where he remained until 2019. For the past two legislative sessions, Cook worked informally as the Senate's parliamentarian, providing lawmakers advice on the chamber's procedures.
"Voting in the House is a matter of process which the House has the authority to determine," Shepherd said in a May 8 statement.
"With regard to the LEARNS Act the House handled it consistent with its long-standing constitutional practice, which years of Republican and Democratic members have followed and participated in," Shepherd said in the statement.
Shane Broadway, a Democrat who served as House speaker from 2001-2002, said he is unaware of the chamber operating any other way.
"You're voting on the bill and the emergency clause, I can say it in my sleep," Broadway said, recalling the phrase speakers frequently use when calling for a vote.
Jeremy Gillam, a Republican who served as speaker from 2015 to 2018, said he cannot recall the Legislature voting on emergency clauses any other way.
"It goes back as far as I remember, and this is my 26th year being around the House," Gillam said.
But just because something is a long-standing procedure does not mean it will pass constitutional muster.
David Couch, the Little Rock attorney who takes credit for starting the debate with his series of tweets, said precedent should not carry more weight than the words in the state's constitution.
"Just because of the way you have done something in the past doesn't change the constitution and make it correct," Couch said.
The week before the lawsuit was filed, Couch began tweeting that the LEARNS Act, and every other piece of legislation with an emergency clause passed during the session, is invalid.