Why did the Arkansas AG reject a 2013 submission to repeal the state marriage amendment?

Plain-English summary

The Arkansas Attorney General rejected a 2013 submission seeking to repeal Amendment 83, the state constitutional marriage provision. The filing included a popular name, a "Summary," and a "Title," but it did not clearly identify which text was the proposed ballot title and did not include the actual draft constitutional amendment.

The opinion said A.C.A. § 7-9-107(a) required sponsors to submit the "original draft" together with a proposed ballot title and popular name. Without the amendment text and a clearly designated title, the AG could not determine whether the title accurately summarized the measure.

After explaining the rejection, the AG offered conditional guidance: if the sponsor intended the "Summary" and "Title" as a ballot title, he anticipated ambiguities and misleading tendencies about repeal's legal effect. Under the law discussed in 2013, statutory provisions separately barred same-sex marriage, so repeal of Amendment 83 alone would not necessarily produce the effects described in the submission. The sponsors could correct the procedural problems and resubmit.

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.

Historical significance for affected readers

Ballot-measure sponsors

The opinion required three distinct items: the proposed measure's actual text, a proposed popular name, and a clearly designated proposed ballot title. A summary or title-like document could not substitute for the missing amendment text.

Petition drafters and election lawyers

The AG warned that a title had to explain the choice presented under then-existing law. Because statutes separately addressed marriage and recognition of out-of-state relationships, the title could not assume that repealing Amendment 83 alone would settle every issue.

Voters

The opinion did not decide the merits of repealing Amendment 83. It addressed whether the submitted materials were complete and clear enough for ballot-title review.

Common questions

Did the AG reject the proposal because of its position on same-sex marriage?

The opinion based the rejection on the missing amendment text and unclear ballot-title designation. It separately offered conditional guidance about possible misleading descriptions of legal effect. It did not make a merits decision on the proposed repeal.

What required document was missing?

The actual text of the proposed constitutional amendment. The AG said each submission had to contain an "original draft."

Why was the proposed ballot title unclear?

The filing contained both a "Summary" and a "Title," and each used title-like language. The AG said there could be "no confusion" about which language was submitted as the ballot title.

Could repealing Amendment 83 alone have legalized same-sex marriage under the law discussed in 2013?

The opinion said Arkansas statutes then separately barred same-sex marriage, so the filing's statements about the immediate effect of repeal were at least ambiguous.

Background and statutory framework

The submission followed an earlier rejection in Opinion 2013-064. A.C.A. § 7-9-107 required sponsors to provide the original measure, popular name, and ballot title so the Attorney General could review whether the title accurately and impartially summarized the proposal.

The filing sought repeal of Amendment 83 and discussed marriage regardless of gender, religious institutions, and recognition of relationships from other states. After rejecting the filing for procedural defects, the AG warned that, if the submitted "Summary" and "Title" were intended as the ballot title, their description of repeal's effect might mislead voters under then-existing statutory marriage rules.

Citations discussed

• A.C.A. § 7-9-107(a), quoted for the requirement to submit the original draft, ballot title, and popular name
• Ark. Const. art. 5, § 1, cited as the codification of the initiative power under Amendment 7
• A.C.A. § 9-11-109 (Repl. 2009), cited as part of the then-existing statutory marriage framework
• Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956), cited for clearly designating the popular name and ballot title
• Bradley v. Hall, Secretary of State, 220 Ark. 925, 927, 251 S.W.2d 470 (1952), cited on informing voters about the change they are asked to approve

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. 2013-089

August 12, 2013

Judd Mann, Co-Chair
Arkansans for Equality
10010 Raymond Drive

Little Rock, Arkansas 72205

Dear Mr. Mann:

This is in response to your resubmission, pursuant to A.C.A. § 7-9-107, of proposed ballot language concerning Amendment 83 to the Arkansas Constitution, following this office’s rejection of a previous submission. That rejection was due to misleading tendencies in the proposed ballot title and the ballot title’s failure to include any mention of the proposal’s effect on current law. See Op. Att’y Gen. No. 2013-064.

Please be advised that several procedural irregularitics prevent me from performing my statutory duty in certifying a ballot title for your measure at this time. As a condition of my certification, I must be provided with the actual text of the proposed measure and both a proposed ballot title and popular name for the proposal. This requirement is reflected in A.C.A. § 7-9-107(a), which provides that “the sponsors shall submit the original draft to the Attorney General, with a proposed .. . ballot title and popular name.” (Emphasis added.) The ballot title and popular name are therefore distinct from the draft, i.e., the text of the measure. The ballot title and popular name must be submitted specifically with no confusion or uncertainty about what is designated as the ballot title.’ The Arkansas Supreme Court has upheld this requirement based on the great power that may be exercised by a small percent of the electorate in initiating a law pursuant to Amendment 7 to the Arkansas Constitution:

' See Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956).

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

Judd Mann, Co-Chair
Arkansans for Equality
Opinion No. 2013-089

Page 2

In this

voters’

It appears, therefore, that a very small per cent of our population may, at each general election, assemble the electorate into both a general assembly and a constitutional convention.... [T]here should be substantial compliance with the statutes enacted in aid of the Constitution. ‘The great body of the electors, when called upon to vote for or against an act at the general election, will derive their information about it from the ballot title. This is the purpose of the title.’ [Citation omitted.] There should be no confusion, no uncertainty, nothing indefinite, about what is designated as the popular name and ballot title when the petition is presented to the Attorney General. The popular name and ballot title should be called to the Attorney General's attention specifically so that he may act in accordance with the statute.”

regard, I must note my uncertainty regarding a proposed ballot title for your measure. Your submission is entitled “Language for Ballot Initiative to repeal Amendment 83 to the Arkansas Constitution[.]” presumably refers to an initiated constitutional amendment, falling within the power of initiative under Ark. Const. art. 5, § 1 (codification of Amendment 7 to the Arkansas Constitution), Your submission then includes a proposed popular name (“Repeal of Arkansas Marriage Amendment”), a

“Summary,” and a “Title.” The Summary provides:

Summary: This Amendment would repeal Amendment 83 of the Arkansas Constitution from 2004 by:

1. Allowing two consenting adults freedom to enter into a
   marriage regardless of gender as long as they do not violate Arkansas Laws or Statutes;

2. Giving religious institutions freedom to determine whom to

marry.

? Id, at 873-74 (emphasis added),

The term “Ballot Initiative”

Judd Mann, Co-Chair
Arkansans for Equality
Opinion No. 2013-089
Page 3

3. Allowing the recognition of civil unions substantially similar
   to marriage from other states as long as they do not violate Arkansas Laws or Statutes.

The part of your submission entitled “Title” states:

Proposed amendment to the Arkansas Constitution to Repeal Amendment 83, which defines marriage for the State of Arkansas solely between one man and one woman, and does not allow recognition of civil unions or other relationships substantially similar to marriage from other states. Repeal of Amendment 83 of the Arkansas Constitution will neither legalize same sex marriage nor force religious institutions to acknowledge or perform such marriages, but will allow Arkansas to recognize any relationships that do not violate Arkansas Laws or Statutes.

This material does not clearly identify a ballot title for a proposed constitutional amendment. You may intend for the above “Title” to be the ballot title. But uncertainty arises from the “Summary,” which also includes language that suggests it is in the nature of a ballot title. In stating what the amendment “would” do or “allow[,]” the Summary seems to follow a ballot title format. I previously explained that format, when addressing the 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

Judd Mann, Co-Chair
Arkansans for Equality
Opinion No. 2013-089
Page 4

wording of these summary phrases or clauses, however, do not ordinarily direct action or actively bring about changes in the law.”

The confusion regarding a designated ballot title for your measure prevents me from performing my duty in certifying a ballot title for your proposal at this time. As I explained in Opinion 2013-064, previously issued to you, the purpose of my review is to determine, pursuant to the 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 measure. I cannot perform this duty without having a clearly designated ballot title.

I must also note that the material you submitted did not include the actual text of a proposed constitutional amendment you seek to have adopted. You may intend for your previous submission to suffice in this regard, but please be advised that I cannot make that assumption. You must instead include in each submission an “original draft” of the proposed amendment.*

I must for these reasons reject your submission and instruct you to submit the actual language of your proposed constitutional amendment, together with a proposed popular name and ballot title.

In an effort to assist and clarify the process, I will point out that if you intend for this “Summary” and “Title” to be the ballot title, I anticipate several ambiguities and misleading tendencies standing in the way of certification. I will not restate in detail the standards set by the court for determining a ballot title’s sufficiency, but instead will refer you to Opinion 2013-064 for guidance in that respect. As I explained in that opinion, however, it is the function of the ballot title to provide information concerning the choice the voters are called upon to make. Hence the adequacy of the ballot title is, to an appreciable degree, related to the extent to

3 Op. Att’y Gen. 2007-083 (emphasis added).

• A.C.A. § 7-9-107(a).

Judd Mann, Co-Chair
Arkansans for Equality
Opinion No. 2013-089

Page 5

which it enlightens the voter with reference to the changes that he is given the opportunity of approving.”

Regarding your submission:

The “Summary” refers to an amendment that would repeal Amendment 83 by allowing certain things with respect to marriage. This is confusing because it suggests that the repeal of Amendment 83 might come about indirectly through some other provision or provisions, as opposed to a direct repeal of that Amendment.

The Summary also states that the repeal of Amendment 83 will allow for Arkansas’s recognition of “marriage regardless of gender as long as [the consenting adults] do not violate Arkansas Laws or Statutes.” The scope of this acknowledgement of laws or statutes is unclear. At the very least, however, the statement is misleading in mistakenly failing to recognize that Arkansas statutory law currently bars same-sex marriage.

A similar problem attends the submitted “Title,” where it states that the repeal of Amendment 83 will “[not] legalize same sex marriage ... but will allow Arkansas to recognize any relationships that do not violate Arkansas Laws or Statutes.” Given that same-sex marriage does violate current statutory law in Arkansas, this statement is at the very least ambiguous regarding the “relationships” that might be recognized immediately following Amendment 83’s repeal.

The Summary and Title also suggest that if Amendment 83 is repealed, religious institutions will have control over the acknowledgment and performance of marriage. The Summary is particularly problematic in pronouncing that Amendment 83’s repeal will [give] religious institutions freedom to determine whom to marry.” While it may not be your intent,

> Op. 2013-064 at pp. 4-5; Bradley v. Hall, Secretary of State, 220 Ark. 925, 927, 251 S.W.2d 470 (1952).

® A.C.A. § 9-11-109 (Repl. 2009). See also A.C.A. §§ 9-11-107 (Repl. 2009) (validity of foreign marriages); 9-1 1-208 (Supp. 2011) (licenses not issued to persons of same sex).

Judd Mann, Co-Chair
Arkansans for Equality
Opinion No. 2013-089
Page 6

this further suggests an immediate impact on the recognition of same-sex marriage in Arkansas, notwithstanding Arkansas statutory law barring same-sex marriage.

This is not an exhaustive list of ambiguities or misleading aspects of the material you have submitted. This discussion serves instead to assist and clarify the process of any resubmission to my office pursuant to A.C.A. § 7-9-107. My statutory duty under these circumstances is to reject your submission, stating my reasons therefor. Jd. at (c). You may, after clarification of the matters discussed above, submit the text of your proposed amendment, along with a proposed popular name and ballot title, at your convenience. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM:cyh

Enclosure

Language for Ballot Initiative to repeal Amendment 83 to the Arkansas Constitution:

Popular Name: Repeal of Arkansas Marriage Amendment

Summary: This Amendment would repeal Amendment 83 of the Arkansas Constitution from 2004 by: e 1. Allowing two consenting adults freedom to enter into a marriage regardless of gender as long as they do not violate Arkansas Laws or Statutes; e 2. Giving religious institutions freedom to determine whom to marry; e 3. Allowing the recognition of civil unions substantially similar to marriage from other states as long as they do not violate Arkansas Laws or Statutes.

Title: Proposed Amendment to the Arkansas Constitution to Repeal Amendment 83, which defines marriage for the State of Arkansas solely between one man and one woman, and does not allow recognition of civil unions or other relationships substantially similar to marriage from other states. Repeal of Amendment 83 of the Arkansas Constitution will neither legalize same sex marriage nor force religious institutions to acknowledge or perform such marriages, but will allow Arkansas to recognize any relationships that do not violate Arkansas Laws or Statutes.