Arkansas Issue 6, Practice of Optometry Referendum (2020)

Arkansas Issue 6
Election date November 3, 2020
Topic Healthcare
Status Not on the ballot
Type Referendum	Origin Citizens
List of Arkansas measuresArkansas Issue 1Arkansas Issue 2Arkansas Issue 3Submit

Arkansas Issue 6, the Practice of Optometry Referendum, was not on the ballot in Arkansas as a veto referendum on November 3, 2020.

The measure was removed from the ballot by the Arkansas Supreme Court on September 17, 2020, for the same reason that Issues 4 and 5 were removed. While Issue 6 appeared on the ballots for the November 3 election, results were not counted or certified.

The Arkansas Supreme Court found that proponents of the measures failed to certify that signature gatherers passed background checks. The certification submitted by petitioners stated that background checks were acquired, but did not say they were passed. Sponsors of the referendum, Safe Surgery Arkansas, said they would pursue a new ballot measure in 2022.

Overview

What would Issue 6 have changed about optometry in Arkansas?

See also: Ballot language and full text

This referendum petition effort sought to overturn Act 579 (House Bill 1251). A yes vote on the referendum would have been a vote to uphold Act 579 while a no vote would have been a vote to repeal it. Act 579 was designed to amend the definition of "practice of optometry" to allow optometrists to perform certain surgical procedures that were previously only performed by ophthalmologists.

Optometrists are eye care professionals that examine eyes, perform vision tests, prescribe and sell corrective lenses, and detect and treat certain eye disorders. In some states, optometrists can perform certain minor surgeries.

Act 579 authorized optometrists to perform the following procedures:

• injections, excluding intravenous or intraocular injections;
• incision and curettage of a chalazion;
• removal and biopsy of skin lesions with low risk of malignancy, excluding lesions involving the lid margin or nasal to the puncta;
• laser capsulotomy; and
• laser trabeculoplasty.

Under Act 579, the State Board of Optometry established credential requirements for an optometrist to become licensed to perform the authorized procedures. Optometrists licensed to perform the procedures need to report the outcomes of the procedures to the board, which are sent to the Department of Health.

What were Arkansas optometrists allowed to do before Act 579

Before Act 579, optometrists could remove foreign bodies from the cornea, conjunctiva, lid, or adnexa, but could not perform surgeries that required anything beyond a topical anesthetic. Before Act 579, optometrists were prohibited from performing cataract and radial keratotomy surgeries. Under Act 579, optometrists are still prohibited from performing the cataract and radial keratotomy surgeries.

Who was behind the campaigns surrounding the referendum?

See also: Support and Opposition

Arkansans for Healthy Eyes led the campaign in support of a yes vote. Arkansans for Healthy Eyes supported Act 579 to allow optometrists to perform some eye surgeries. Arkansans for Healthy Eyes argued, "Act 579 gives Arkansas patients better access to quality care by allowing optometrists to perform more of the procedures we are absolutely qualified to safely perform." Most of the donors to Arkansans for Healthy Eyes were state optometric associations and optometrists.

Safe Surgery Arkansas sponsored the veto referendum and led the campaign in support of a no vote. The campaign opposed allowing optometrists to perform some eye surgeries. Safe Surgery Arkansas argued that Act 579 "jeopardizes patient safety and lowers the quality of surgical eye care in the state of Arkansas. This new law would allow optometrists— who are not medical doctors or trained surgeons— to perform delicate surgery on the eye." Most of the donors to Safe Surgery Arkansas were ophthalmological practices and associations, ophthalmologists, physicians, and other healthcare providers.

Text of measure

Ballot title

The ballot title for the referendum would have appeared on the ballot as follows:

“

An act to amend the Arkansas Code regarding the definition of "practice of optometry"; providing that the definition of "practice of optometry" is amended to permit licensed optometrists to use ophthalmic lasers for the following surgical procedures: perform injections (excluding intravenous or intraocular injections), incision and curettage of a chalazion, removal and biopsy of skin lesions with low risk of malignancy (excluding lesions involving the lid margin or nasal to the puncta), laser capsulotomy, and laser trabeculoplasty; providing that licensed optometrists continue to be prohibited from using ophthalmic lasers for surgical procedures other than those previously identified, performing cataract surgery, performing radial keratotomy surgery, and selling prescription drugs; providing that the State Board of Optometry has the power and duty to establish credentialing requirements for a licensee to administer or perform the following procedures: injections (excluding intravenous or intraocular injections), incision and curettage of a chalazion, removal and biopsy of skin lesions with low risk of malignancy (excluding lesions involving the lid margin or nasal to the puncta), laser capsulotomy, and laser trabeculoplasty; providing that the State Board of Optometry shall require every optometrist who meets the requirements for certification to perform authorized laser procedures to report to the board regarding the outcome of the procedures performed in a format as required or directed by the board, and these reports shall also be sent to the Department of Health; this act being Act No. 579 of the Regular Session of 2019.

”

Full text

The full text of House Bill 1251, which this referendum sought to overturn, can be found here.

Support for a yes vote

Arkansans for Healthy Eyes led the campaign in support of a yes vote. Arkansas for Healthy Eyes supported Act 579 to allow optometrists to perform some eye surgeries.

Arguments

• Arkansas Optometric Association Executive Director Vicki Farmer: "Arkansas legislators overwhelmingly approved this measure during the recent session, after listening to hours of testimony and debate, and learning optometrists in other states, like Oklahoma, have been safely performing these procedures for more than 20 years. Lawmakers also heard from constituents who have had to endure added costs and lengthy waits when required to see a specialist for care their optometrist is trained to safely provide."
• Arkansans for Healthy Eyes: "Act 579 gives Arkansas patients better access to quality care by allowing optometrists to perform more of the procedures we are absolutely qualified to safely perform. Despite the fear tactics being used by opponents, we are actually only talking about a handful of minimally invasive procedures, done right in your optometrist’s chair, and without the need for general anesthesia. For some patients, especially in rural parts of the state, being able to receive enhanced care from their optometrist, instead of having to go through the wait, travel, and added cost of a specialist visit, may mean the difference between getting a needed procedure, or going without."

Support for a no vote

Safe Surgery Arkansas led the campaign in support of a no vote. The campaign opposed allowing optometrists to perform some eye surgeries and sought to repeal Act 579.

Opponents

Organizations

• Arkansas Ophthalmological Society
• Arkansas State Chamber of Commerce

Arguments

• Safe Surgery Arkansas: The eyesight of Arkansans will be jeopardized when individuals without the proper training are allowed to use scalpels and lasers to perform surgery on or around the eyes of Arkansans. Patients’ eyesight will be threatened when a non-medical doctor is allowed to inject a needle around Arkansans’ eyes. Our eyesight is too important to allow someone who is not properly trained perform these delicate surgical procedures.
• R. Scott Lowery, president of the Arkansas Ophthalmological Society: "We are confident that when the people are heard on this issue, they will not allow individuals without medical degrees and without surgical residencies to jeopardize the precious eyesight of Arkansans."

Campaign finance

See also: Campaign finance requirements for Arkansas ballot measures

Note: Information in this section is according to the most recent reports available as of December 3, 2020:

Arkansans for Healthy Eyes registered to support a yes vote on the referendum. The committee reported $1.39 in contributions and $1.09 million in expenditures. Safe Surgery Arkansas registered to support a no vote on the referendum. The committee reported $2.23 million in contributions and $2.05 million in expenditures.

	Cash Contributions	In-Kind Contributions	Total Contributions	Cash Expenditures	Total Expenditures
Support	$1,399,208.05	$0.00	$1,399,208.05	$1,090,302.15	$1,090,302.15
Oppose	$2,225,939.45	$0.00	$2,225,939.45	$2,057,046.89	$2,057,046.89

Support for a yes vote

The following table includes contribution and expenditure totals for the committee that supported a yes vote on the referendum.

Committees in support of Issue 6
Committee	Cash Contributions	In-Kind Contributions	Total Contributions	Cash Expenditures	Total Expenditures
Arkansans for Healthy Eyes	$1,399,208.05	$0.00	$1,399,208.05	$1,090,302.15	$1,090,302.15
Total	$1,399,208.05	$0.00	$1,399,208.05	$1,090,302.15	$1,090,302.15

Donors

Most of the donors to Arkansans for Healthy Eyes were state optometric associations and optometrists. Listed below are donors who contributed $20,000 or more to Arkansans for Healthy Eyes. Together, the top six donors contributed 29% of the total contributions.

Donor	Cash Contributions	In-Kind Contributions	Total Contributions
American Optometric Association	$259,212.05	$0.00	$259,212.05
Arkansas Optometric Association	$190,000.00	$0.00	$190,000.00
Colorado Optometric Association	$20,000.00	$0.00	$20,000.00
Drs. R Dean Gurley and Matt Jones	$20,000.00	$0.00	$20,000.00
Parenti-Morris Eyecare	$20,000.00	$0.00	$20,000.00

Support for a no vote

The following table includes contribution and expenditure totals for the committee that supported a no vote on the referendum. Safe Surgery Arkansas spent $661,000 to collect 53,491 valid signatures, resulting in a cost per required signature of $12.36.

Committees in opposition to Issue 6
Committee	Cash Contributions	In-Kind Contributions	Total Contributions	Cash Expenditures	Total Expenditures
Safe Surgery Arkansas	$2,225,939.45	$0.00	$2,225,939.45	$2,057,046.89	$2,057,046.89
Total	$2,225,939.45	$0.00	$2,225,939.45	$2,057,046.89	$2,057,046.89

Donors

Most of the donors to Safe Surgery Arkansas were ophthalmological groups and practices, ophthalmologists, and healthcare providers. Listed below are the top five donors to Safe Surgery Arkansas. Together, the top six donors contributed 46% of the total contributions.

Donor	Cash Contributions	In-Kind Contributions	Total Contributions
Arkansas Medical Society	$355,000.00	$0.00	$355,000.00
Little Rock Eye Clinic	$178,500.00	$0.00	$178,500.00
Arkansas Opthalmological Society	$155,000.00	$0.00	$155,000.00
Retina Associates, PA	$130,000.00	$0.00	$130,000.00
Arkansas Retina Clinic	$125,000.00	$0.00	$125,000.00

Methodology

To read Ballotpedia's methodology for covering ballot measure campaign finance information, click here.

Background

Optometrist vs ophthalmologist education requirements

Optometrists and ophthalmologists both specialize in eye care, but they have different educational requirements and have different scopes of practice.

Generally, optometrists earn a bachelor's degree and complete a four-year program to earn a Doctor of Optometry (O.D.) degree. Optometrists examine eyes, perform vision tests, prescribe corrective lenses, and detect eye disorders. In some states, optometrists can perform certain minor surgeries.

Ophthalmologists must earn a bachelor's degree, complete a four-year medical school program, participate in a one-year-long internship, and complete a three-year residency. Ophthalmologists diagnose and treat eye conditions, perform surgeries on the eyes, and more.

Surgical abilities of optometrists by state

According to information published in October 2018, optometrists may use lasers to perform various surgeries in four states: Alaska, Oklahoma, Louisiana, and Kentucky. In five additional states, optometrists may perform surgeries to remove foreign bodies from the eyes (sometimes referred to as lumps and bumps treatment). In 10 states, optometrists may perform procedures that are authorized by the state's board of optometry.

Act 579

Act 579 (House Bill 1251) was approved in the House on March 6, 2019, in a vote of 70-19. Among Democratic representatives, 13 voted in favor, eight voted against, and three were absent or did not vote. Among Republican representatives, 57 voted in favor, 11 voted against, and eight were absent, voted "present", or did not vote.

The bill was approved in the Senate on March 20, 2019, in a vote of 25-8. Among Democratic senators, five voted in favor, three voted against, and one was absent or did not vote. Among Republican senators, 20 voted in favor, five voted against, and one was absent or did not vote.

House Bill 1251 vote totals
Vote in the Arkansas House of Representatives March 6, 2019 Requirement: 51 Yes No Not voting Total 70 19 11 Total percent 70% 19% 11% Democrat 13 8 3 Republican 57 11 8 Vote in the Arkansas State Senate March 20, 2019 Requirement: 18 Yes No Not voting Total 25 8 2 Total percent 71.4% 22.9% 1.03% Democrat 5 3 1 Republican 20 5 1

Veto referendums in Arkansas

See also: List of veto referendum ballot measures

A veto referendum is a type of citizen-initiated ballot measure that asks voters whether to uphold or repeal a law passed by the state legislature. There are 23 states that have a process for veto referendums.

In Arkansas, successful veto referendum petitions suspend the targeted law until the election. A yes vote on a referendum in Arkansas is a vote to uphold the law and a no vote is a vote to reject the law.

Since the first in 1934, 10 veto referendums have been on the ballot in Arkansas. The targeted law was repealed in all but one case. The last veto referendum in Arkansas appeared on the ballot in 2004.

There have been a total of 522 veto referendums in 23 states. Voters repealed 341 (65.3 percent) of the targeted laws. Voters upheld 181 (34.7 percent) of the targeted laws.

Path to the ballot

See also: Laws governing the initiative process in Arkansas

The state process

Signatures for veto referendums must be submitted 90 days after the final adjournment of the 2024 state legislative session. If the secretary of state certifies that enough signatures were submitted in a petition, the initiative is put on the ballot. If a petition fails to meet the signature requirement, but the petition has at least 75 percent of the valid signatures needed, petitioners have 30 days to collect additional signatures or demonstrate that rejected signatures are valid.

• Signatures required: 53,491 valid signatures for referendums targeting bills passed in the 2019 and 2020 legislative sessions.
• Deadline for 2019 bills: 90 days following the adjournment of the 2019 session. The legislature adjourned on April 24, 2019, so signatures for referendum petitions were due on July 23, 2019.
• Deadline for 2020 bills: 90 days after the adjournment of the 2020 session.

Details about this initiative

• This referendum was filed by Alex Gray on behalf of Safe Surgery Arkansas on June 11, 2019.
• Sponsors reported submitting more than 84,000 signatures on July 23, 2019.
• The measure was certified for the ballot on January 31, 2020, following the resolution of a lawsuit concerning signature validity. Proponents submitted 64,028 valid signatures.
• The measure was removed from the ballot by the Arkansas Supreme Court on September 17, 2020, for the same reason that Issues 4 and 5 were removed, for failing to certify that signature gatherers passed background checks. The certification submitted by petitioners stated that background checks were acquired.

Lawsuits

Signature validity lawsuits

  

Lawsuit overview
Issue: Whether proponents' submitted signatures are valid, whether they were collected in compliance with Act 376 (House Bill 346) of 2019, which required signature gatherers to file a sworn statement with the Secretary of State's office prior to collecting signatures; whether the emergency clause in Act 376 is constitutional
Court: Arkansas Supreme Court
Ruling: Ruled in favor of plaintiffs; the emergency clause in Act 376 was unconstitutional and signatures must be counted
Plaintiff(s): Safe Surgery Arkansas	Defendant(s): Arkansas Secretary of State John Thurston (R)
Plaintiff argument: Signatures submitted are valid and should be counted by the Secretary of State's office; the Secretary of State's initiative and referendum handbook did not mention the change in the law; the bill's emergency clause was unconstitutional	Defendant argument: Signatures submitted are invalid and violate Act 376 (House Bill 346) of 2019, which required signature gatherers to file a sworn statement with the Secretary of State's office prior to collecting signatures

  Source: Arkansas Supreme Court Case CV-19-641

  

Lawsuit overview
Issue: Whether proponents' submitted signatures are valid, whether they were collected in compliance with Arkansas Code Annotated § 7-9-601, which required sponsors to certify that petition canvassers passed state and federal criminal background checks
Court: Arkansas Supreme Court
Ruling: Ruled in favor of plaintiffs; measure removed from the ballot on September 17, 2020
Plaintiff(s): Arkansans for Healthy Eyes	Defendant(s): Arkansas Secretary of State John Thurston (R)
Plaintiff argument: Signatures submitted are invalid and should not be counted by the Secretary of State's office because sponsors did not certify that petition canvassers passed state and federal criminal background checks	Defendant argument: Unknown

  Source: Arkansas Times

Signature validity lawsuit: Act 376 emergency clause constitutionality: Sponsors reported submitting more than 84,000 signatures on July 23, 2019. To qualify for the 2020 ballot, 53,491 valid signatures were required. The Arkansas Secretary of State's office said proponents submitted 23,953 signatures and therefore failed to qualify for the ballot. Arkansas Secretary of State John Thurston (R) declined to count 61,065 signatures submitted by proponents, saying they were not collected in compliance with Act 376 (House Bill 346) of 2019, which changed the laws governing the initiative process in Arkansas. Among other things, Act 376 required sponsors to submit certain required sworn statements from paid circulators to the secretary of state before the circulator collects any signatures. Generally, laws become effective 90 days after they are signed by the governor unless they constitute an emergency. Act 376, signed by the governor in March, contained an emergency clause that applied the new laws to petitions that were already being circulated. Alex Gray, attorney for Safe Surgery Arkansas, filed a lawsuit in the Arkansas Supreme Court against Arkansas Secretary of State John Thurston (R) on August 13, 2019. The plaintiffs alleged that the emergency clause was unconstitutional and that the signatures they submitted were valid and should be counted by the Secretary of State's office. The state supreme court ruled 4-3 on December 12, 2019, that the emergency clause was unconstitutional and that the Secretary of State's office must count the signatures. The supreme court wrote that the test for determining whether a law is an emergency is "if reasonable people would not think that the facts stated constitute an emergency." In Act 376, the legislature wrote that the bill constituted an emergency in order "to avoid confusion in petition circulation." The supreme court ruled that this did not constitute an emergency. In the majority opinion, the court wrote, "the only purpose this emergency clause can functionally serve is to simply bring Act 376’s new requirements into operation at an earlier time (effectively voiding referendum efforts brought pursuant to the otherwise-then-still-existing legal framework). Here, this would disenfranchise over 60,000 Arkansas citizens who have expressed through their signatures the desire to hold a referendum on Act 579 on the November 2020 ballot, all because the legislature decided (1) that it was time to add additional requirements for procuring those signatures, and (2) that those additional requirements should become effective immediately." Arkansans for Healthy Eyes appealed the ruling and petitioned the state supreme court for a rehearing. The supreme court ruled 4-3 against rehearing the case. Arkansans for Healthy Eyes then filed a lawsuit in Pulaski County Circuit Court asking the court to prohibit the secretary of state from taking any additional actions regarding the referendum petition. On January 28, 2020, Pulaski County Circuit Judge Wendell Griffen dismissed the lawsuit filed by Arkansans for Healthy Eyes. Signature validity lawsuit: Safe Surgery Arkansas petitioner background check certifications: Arkansans for Healthy Eyes filed a lawsuit on February 28, 2020, alleging that Safe Surgery Arkansas fraudulently gathered signatures and misled petition signers. On April 2, 2020, the Arkansas Supreme Court appointed Special Master Mark Hewett to conduct a hearing and review petitioners' claims and to submit a report of his findings to the state supreme court by July 15, 2020. Arkansas state law requires sponsors to certify to the Secretary of State that each paid canvasser passed a state and federal criminal background check. Safe Surgery Arkansas certified that the "background check, as well as a 50-state background check, have been timely acquired." Special Master Mark Hewett found that the statement does not specify that the federal background check was acquired, however, the Arkansas State Police testified that they had never provided federal background checks for petition canvassers because Arkansas Code Annotated § 7-9-601 "does not meet the FBI's criteria for a state statute to authorize such a check" and special Hewett found that the sponsor was unable to comply with the federal background check requirement. Hewett also found that state law requires sponsors to certify that canvassers passed the background checks and that Safe Surgery Arkansas' certification said instead that the checks were acquired. The report was filed with the Supreme Court for a decision. Alex Gray of Safe Surgery Arkansas said he was confident that the Supreme Court would allow the signatures to stand. A supreme court ruling was expected in mid to late August. The measure was removed from the ballot by the Arkansas Supreme Court on September 17, 2020, for the same reason that Issues 4 and 5 were removed, for failing to certify that signature gatherers passed background checks. The certification submitted by petitioners stated that background checks were acquired. Sponsors of the referendum, Safe Surgery Arkansas, said they would pursue a new ballot measure in 2022.

How to cast a vote

See also: Voting in Arkansas

Click "Show" to learn more about voter registration, identification requirements, and poll times in Arkansas.

How to cast a vote in Arkansas

The information below covers regular voting policies in the state. Information may have not applied to the election on November 3, 2020, because of temporary changes in response to coronavirus. Click here to read about changes made for the 2020 elections. Poll times In Arkansas, all polls are open from 7:30 a.m. to 7:30 p.m. on Election Day. An individual who is in line at the time polls close must be allowed to vote. Registration requirements Check your voter registration status here. To vote in Arkansas, one must be a citizen of the United States and a resident of Arkansas. A voter must be 18 years of age or older on or before Election Day. Registration must be completed no later than 30 days before the election in which a voter wishes to participate. Citizens must complete and submit a voter registration application to their county clerk or other authorized voter registration agency. Applications may be obtained at the following locations: County clerk's office The Arkansas Secretary of State Elections Division: Local revenue or DMV office Public library Public assistance agency Disability agency Military recruitment office Voter registration drive Online Automatic registration Arkansas does not practice automatic voter registration. Online registration See also: Online voter registration Arkansas does not permit online voter registration. Same-day registration Arkansas does not allow same-day voter registration. Residency requirements Arkansas law requires 30 days of residency in the state before a person may vote. Verification of citizenship See also: Laws permitting noncitizens to vote in the United States Arkansas does not require proof of citizenship for voter registration. Verifying your registration The site Voter View, run by the Arkansas Secretary of State's office, allows residents to check their voter registration status online. Voter ID requirements Arkansas requires voters to present photo identification while voting. The identification must include the voter’s name and photograph. It must be issued by "the United States, the State of Arkansas, or an accredited postsecondary educational institution in the State of Arkansas." If the identification has an expiration date on it, it cannot be expired for "more than four (4) years before the date of the election in which the voter seeks to vote." The following list of accepted ID was current as of April 2023. Click here for the Arkansas Secretary of State's page on accepted ID to ensure you have the most current information. Driver’s license Photo identification card Concealed handgun carry license United States passport Employee badge or identification document issued by an accredited postsecondary education institution in the State of Arkansas United States military identification document Public assistance identification card if it has a photograph Voter verification card as provided under Ark. Code § 7-5-324 "A person who is a resident of a long-term care or residential care facility licensed by the state of Arkansas is not required to verify his or her registration by presenting a document or identification card as described above when voting in person, but must provide documentation from the administrator of the facility attesting that the person is a resident of the facility," according to the Arkansas Secretary of State’s office. Voters can obtain a free voter verification card at their county clerk’s office. "[V]oters will be required to complete an affidavit stating they do not possess such identification, and must provide documentation containing their full legal name and date of birth, as well as documentation containing their name and residential address."

See also

2020 measures

• 2020 ballot measures
• Healthcare on the ballot
• 2020 legislative sessions

Arkansas

• Arkansas ballot measures
• Arkansas ballot measure laws

News and analysis

• Ballot measure lawsuits
• Ballot measure readability
• Ballot measure polls

External links

• Arkansas Secretary of State; initiatives and referenda
• Arkansas House Bill 1251 (2019)

Support for a yes vote

• Arkansans for Healthy Eyes website
• Arkansans for Healthy Eyes Facebook page
• Arkansans for Healthy Eyes Twitter page

Support for a no vote

• Safe Surgery Arkansas website
• Safe Surgery Arkansas Facebook page
• Safe Surgery Arkansas Twitter page