Can an Arkansas initiative sponsor get a ballot title certified without submitting the proposed amendment text?

Plain-English summary

A sponsor submitted popular names and ballot titles for three proposed Arkansas constitutional amendments concerning presidential electors, allocation of electoral votes, and income and corporate taxes. He did not submit the amendments’ actual text. The Attorney General returned the submissions without certifying any popular name or ballot title. Without the measure text, the office could not decide whether a ballot title accurately and impartially described what voters would enact.

The opinion distinguished a proposed amendment from its ballot title. The amendment text would become law if adopted; the ballot title is a concise description for voters. The submitted titles used phrases such as “would allow” and “would provide.” The AG warned that using those titles as the measures’ operative text could create ambiguity, and instructed the sponsor to submit actual amendment language with proposed names and titles.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why did the AG decline to certify these three ballot titles?

A: The sponsor supplied proposed names and titles but not the text of the three amendments. The AG said the missing text made an accuracy and impartiality review impossible.

Q: Could the sponsor use each ballot title as the amendment itself?

A: The AG warned that a title’s summary wording could cause interpretive problems if used as operative constitutional language. The opinion did not approve that approach.

Q: Did the AG decide whether the proposals about electors and taxes were lawful?

A: No. The response addressed the missing text and explained the standards for a later title review. It did not resolve the merits of any proposed amendment.

Background and statutory framework

Under A.C.A. § 7-9-107, the sponsor had to submit an original draft together with a proposed ballot title and popular name. The AG described its limited role as checking whether the titles honestly, intelligibly, and fairly summarized the submitted measures. It did not draft or approve the substantive text. The opinion included the sponsor’s submitted names and titles as enclosures.

Citations and references

• A.C.A. § 7-9-107(a) is the submission requirement the opinion applied.
• The opinion quoted an earlier AG explanation that amendment text and ballot-title summaries serve different functions.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THe ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-010

February 7, 2013

Mr. Kevin Pearson
3090 CR 3867
Lamar, Arkansas 72846

Dear Mr. Pearson:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2011), of the popular names and ballot titles for three proposed constitutional amendments, which you propose to name as follows:

Popular Name
AN AMENDMENT TO NAME PRESIDENTIAL ELECTORS ON THE BALLOT Popular Name

AN AMENDMENT TO DETERMINE
APPROPRIATION OF ELECTORAL VOTES

Popular Name

AN AMENDMENT TO ABOLISH INDIVIDUAL INCOME TAXES AND
PHASE OUT CORPORATE TAXES IN THE STATE OF ARKANSAS

You have also submitted proposed ballot titles. However, several procedural irregularities prevent me from certifying popular names and ballot titles for your proposed amendments at this time. I will point out the irregularities, and I will also set out the guidelines for determining the sufficiency of a popular name and ballot title, in anticipation of you resubmitting these measures.

323 CENTER STREET, SUITE 200 » LitrLe Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 © Fax (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/

Kevin Pearson
Opinion No. 2013-010
Page 2

J am required, pursuant to A.C.A. § 7-9-107, to certify the popular name and ballot title of all statewide voter initiatives before the petitions are circulated for signature. However, J have no role in drafting or approving the text of such initiative measures. The content, draftsmanship, and detail of the text are matters for the sponsor. My review is limited to determining, under guidelines that have been set forth by the Arkansas Supreme Court, whether the proposed popular name and ballot title accurately and impartially summarize the provisions of the proposed amendment or act.

In accomplishing this task, however, I must be provided with the complete text of your proposed act or amendment. This is reflected in A.C.A. § 7-9-107(a), wherein it states that “the sponsors shall submit the original draft to the Attorney General, with a proposed .. . ballot title and popular name.” (Emphasis added.)

You have failed to submit the texts of the proposed constitutional amendments which you seek to have adopted. It is thus impossible for me to determine whether your proposed ballot titles are accurate and impartial summaries of your proposed measures. Section 7-9-107(a) of the Arkansas Code is very clear in requiring a sponsor of a measure to submit the actual text of the measures for the Attorney General’s review, with both a proposed ballot title and popular name for each proposal.

I must therefore return your submissions and instruct you to submit the actual language of your proposed constitutional amendments, together with proposed popular names and ballot titles. In this regard, please be aware that problems will likely arise if you intend for your proposed ballot titles to also serve as the texts of your proposed amendments. As explained in the following passage from Attorney General Opinion 2007-183, there is an important difference between the text of a measure and its ballot title:

The text of a proposed constitutional amendment, if adopted, becomes a part of the Arkansas Constitution. Ideally it consists of clear, complete sentences that actively dictate the legal effects desired by the sponsors. A ballot title, on the other hand, is an impartial, concise summary of the proposed amendment. As a consequence, it usually consists of a series of short descriptive phrases or clauses, which refer to, summarize and delineate the various important provisions of the amendment. The format and

Kevin Pearson
Opinion No. 2013-010
Page 3

wording of these summary phrases or clauses, however, do not ordinarily direct action or actively bring about changes in the law. As a consequence, this summary format, while entirely appropriate for a ballot title, causes interpretive difficulty when used as a template for the language of a constitutional amendment.

Consistent with the above, the ballot titles you have submitted refer to what “would” occur under the “proposed amendment,” or what the amendment “would allow” or “provide.” While this language is certainly appropriate in a ballot title, it will lead to ambiguities if used in the actual text of the proposed measure.

With regard to the text of your proposed constitutional amendments, you should also be aware that the language of each measure must be capable of fair summarization in a ballot title in order for me to perform my statutory duty in certifying a ballot title and popular name. I must be able to clearly understand the text and clearly understand how each proposal will change current law. The purpose of my review and certification is to ensure that the ballot titles and popular names (the tools for presenting your proposed amendment to the voters in the voting booth) honestly, intelligibly, and fairly summarize the purpose of each measure, The ballot title must also convey an intelligible idea of the scope and significance of a proposed change in the law.” And it must be free from any misleading tendency, whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring.’ These standards cannot be met, however, if the text of the measure is unclear or uncertainties remain.

As a consequence of this rigorous standard of review, I strongly encourage you to seek the guidance of private counsel or experts of your choosing to ensure that there are no ambiguities or problems of implementation. Amending the Arkansas Constitution is a matter of the utmost seriousness, and the Arkansas Supreme Court holds popular names and ballot titles of proposed amendments to a standard

' See Arkansas Women’s Political Caucus v. Riviere, 282 Ark. 463, 466, 677 S.W.2d 846 (1984); Becker v. Riviere, 270 Ark, 219, 223, 226, 604 S.W.2d 555 (1980); Hoban v. Hall, 229 Ark. 416, 417, 316 S.W.2d 185 (1958).

2 Christian Civie Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994).

> Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

Kevin Pearson
Opinion No. 2013-010
Page 4

that is commensurate with this seriousness. The standard cannot be met, however, if the text of the proposed measure is unclear or uncertainties remain. That is why I suggest that you seek assistance in evaluating your text, bearing in mind that my ability to certify a popular name and ballot title depends upon the clarity of the language of the proposed amendment.

Attorney“General

DM/cyh

Enclosures

Popular name

An amendment to name presidential electors on the ballot

Ballot title.

For a proposed amendment to have per Article II Section 1 Clause 4 of the United States Constitution at the Time of the chusing of the electors, that the Electors would be named on the public ballot in the manner which would be determined by the Arkansas State Legislature.

This measure would allow, but not compel, the possibility that write in votes be permitted provided that the write-in candidate would meet the requirements for being a

qualified Elector.

Popular name
An amendment to determine appropriation of Electoral Votes.

Ballot title.

An amendment to the Constitution to provide for the apportionment of Electoral Votes by a) two (2) at-large Electors for the entire state, and one (1) electoral vote for each Congressional district, until which time, if ever, that b) the State Legislature shall create Electoral Districts, consisting of whole and adjacent counties, for each individual Electoral Vote. No such district shall have a population exceeding 15% of any other such district. These Electoral Districts shall be redrawn after each national census.

Popular name

An amendment to abolish individual income taxes and phase out corporate taxes in the State of Arkansas.

Ballot title.

For a proposed amendment to a) abolish individual income taxes in the State of Arkansas effective in the fiscal year immediately following the passage of this measure, and b) to reduce corporate taxes, beginning two (2) fiscal years after the abolishment of individual income taxes, by ten-percent each year of the corporate tax rate at that time eliminating corporate tax at the end of ten years.