Arkansas, You’re All Wet (Gwen Moritz Editor’s Note)

Twitter is an efficient way to share information but not a very effective medium for nuanced points.

I notice that I was “retweeted” several times by conservative types when I commented, “Even in counties where a majority [of voters] want to be dry, they won’t have that option anymore. That’s a shame.” But I got no retweets at all when I said that the all-wet amendment was “an improvement over the current law that protects liquor stores by effectively keeping voters from deciding.”

I stand by both comments individually and collectively. It is a shame that, if my expectation comes true and the all-wet amendment passes in November, no Arkansan will have the option of living in a dry county and no county will have the option of being dry.

But let us not forget how and why we got to this point: because the package liquor industry wanted to protect the existing mix of wet counties and dry counties by making it exceedingly hard and expensive to determine what a majority of a county’s residents want. Liquor store operators know that by preserving a mix of wet and dry counties, they can sell to all the Arkansans who want to drink and can do it while operating as few stores as possible. Your convenience, it should be obvious, is a distant second to efficient profitability.

The proposed amendment, crafted by Little Rock lawyer David Couch, is less than ideal in that it gives voters statewide only two options: the status quo or all-wet, neither of which may reflect the majority in a given county. But it’s an improvement over a cynical law designed specifically to keep voters from having any say in the matter at all.

A little history is in order: A 1942 initiated act allowed voters to choose whether alcohol could be sold inside the county, and in short order 43 of 75 counties decided to go dry.

(Critics have noted that the initiated act and many of the county referendums were carried out while a large number of the state’s drinking-age men were off fighting World War II, but I don’t know whether that really affected the outcome.)

Like other exercises in direct democracy, wet-to-dry and dry-to-wet referendums could be placed on the ballot by petition of 15 percent of registered voters in the county. In 1978, Craighead County voted to remain dry, while Baxter County decided to go back to wet.

In 1985, the Arkansas Legislature changed the signature requirement to 30 percent of registered voters, but when in 1986 Conway County came just 33 votes from going from wet to dry, it was clear that even 30 percent wasn’t enough to protect the industry from the will of the people. In 1993, the Legislature raised the hurdle to 38 percent.

Then-Sen. Lu Hardin explained his support for the bill, as reported by the Arkansas Democrat-Gazette: “This keeps communities from being polarized unnecessarily. There is nothing that polarizes a community like a wet-dry election.” But Sen. Mike Everett saw it for what it was: “I think we should be careful before we start taking away people’s rights to choice.”

Hardin prevailed, the law survived a court challenge and the 38 percent hurdle protected any community from being polarized by unnecessarily allowing the majority to make a choice until 2006.

That’s when Jim Wilson Jr., a justice of the peace in Marion County, made it his mission to collect some 4,000 signatures in a county with about 10,000 registered voters. Marion became the first county in Arkansas to go wet under the 38 percent requirement, followed by five more counties in the next six years: Clark and Boone in 2010 and Benton, Madison and Sharp in 2012. (No wet counties have attempted to go dry since Conway County 28 years ago.)

It shouldn’t come as a surprise that in a county in which 38 percent of the voters would sign a petition to go wet, 50 percent plus one would then vote to actually go wet. However, it doesn’t follow that a majority of the voters in all 36 counties that are still dry would want to go wet. And it’s a shame that they probably won’t get a chance to tell us.

But an imperfect proposal to determine the will of the statewide majority is better than the current law that deliberately placed an undue burden on determining the will of countywide majorities. Protectionism has backfired yet again.

Email Gwen Moritz, editor of Arkansas Business, at GMoritz@ABPG.com.