Could Arkansas certify a 2013 ballot title for an amendment protecting unborn children from conception?

Plain-English summary

In 2013, Arkansas Attorney General Dustin McDaniel rejected the popular name and ballot title for a proposed constitutional amendment stating that Arkansas would protect every unborn child from conception until birth. The review addressed whether voters could receive an accurate ballot summary, not whether the proposal was desirable policy.

The AG found that the word "protect" did not clearly show whether the amendment would operate only within federal constitutional limits or claim state authority to disregard controlling federal law. He also found unresolved conflicts with existing Amendment 68 language about public funding for abortions needed to save a mother's life and about contraceptives.

Other ambiguities concerned in-vitro fertilization, the meanings of "unborn child" and "conception," and the declaration that the provision would be self-executing even though it specified no way to carry out the stated policy. Because those issues affected the measure itself, the AG could not write or certify a sufficient ballot title.

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.

For ballot-measure sponsors in 2013

The opinion meant that adding "self-executing" and revising the ballot title did not resolve ambiguities in the amendment's text. The proposal needed substantive clarification before another certification request.

For Arkansas voters and election officials in 2013

The submitted title was not certified. The AG concluded that voters could not be accurately told whether the proposal would ban abortion, conflict with federal law, or affect contraceptives and in-vitro fertilization.

Common questions

Q: Did the AG reject the amendment because he opposed its abortion policy? A: No. The opinion said the Attorney General's role was limited to determining whether the popular name and ballot title accurately and impartially summarized the proposal.

Q: Why was the word "protect" ambiguous?
A: The proposal did not say whether Arkansas would protect unborn children only as federal law allowed or would claim power to act contrary to controlling federal law.

Q: What was unclear about contraceptives and in-vitro fertilization? A: If the proposal barred destruction of a fertilized egg, the opinion found it unclear whether some contraceptives or in-vitro fertilization practices would remain permitted.

Q: Did calling the section self-executing make it enforceable by itself? A: No. The opinion said a provision must supply a means of carrying out its policy to be self-executing; the label alone did not do that.

Background and statutory framework

A.C.A. § 7-9-107 required Attorney General review of proposed popular names and ballot titles before petition circulation. The opinion explained that a ballot title had to be concise while still disclosing essential facts about a measure's scope and effect on existing law.

The proposal would have revised Section 2 of Arkansas Constitution Amendment 68. The AG compared the new language with the amendment's remaining sections, federal abortion limits as they stood in 2013, and Arkansas Supreme Court decisions addressing ballot-title sufficiency and whether Amendment 68 was self-executing.

Citations and references

Statutes:

• A.C.A. § 7-9-107
• A.C.A. § 7-5-522

Cases:

• Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000)
• Knowlton v. Ward, 318 Ark. 867, 875, 889 S.W.2d 721 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)

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, 2013-100

August 30, 2013

Preston Dunn, Jr., President
Personhood Arkansas

Post Office Box 101
Blytheville, Arkansas 72316

Dear Mr. Dunn:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2007), of the popular name and ballot title for a proposed constitutional amendment. You have previously submitted similar measures, which this office rejected due to ambiguities in the texts of your proposed amendments. See Ops. Att’y Gen. Nos. 2013-065, 2012-045, 2012-002 and 2011-163. You have made changes in the text of your proposal since your last submission and have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

PROTECT THE LIFE OF EVERY UNBORN CHILD FROM CONCEPTION UNTIL BIRTH

Ballot Title

This amendment will revise Amendment 68, Abortion, Section 2, Public Policy to reflect the sovereignty of the State of Arkansas to protect the inalienable right to life of unborn children from conception until birth. This amendment will not affect the use of contraceptives. This amendment will not require an appropriation of public funds.

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or

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/

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No. 2013-100
Page 2

amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition. Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal. This Office has been given no authority to consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is “clearly contrary to law,”” this office will not require that a measure’s proponents acknowledge in the ballot title any possible constitutional infirmities. As part of my review, however, I may address constitutional concerns for consideration by the measure’s proponents.

Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.

The popular name is primarily a useful legislative device.’ It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the

' See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

? See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).

• Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No, 2013-100
Page 3

proposal.’ The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.”

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented.° According to the court, if information omitted from the ballot title is an “essential fact which would give the voter serious ground for reflection, it must be disclosed.”’ At the same time, however, a ballot tithe must be brief and concise (see A.C.A. § 7-9- 107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit in voting booths when other voters are waiting in line.® The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.’ The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring.'” A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law.'! The ballot title must be intelligible, honest, and impartial.’

Having analyzed your proposed amendment, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed popular name and ballot title due to ambiguities in the text of

• E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976). ; Moore y. Hall, 229
  Ark. 411, 316 S.W.2d 207 (1958).

> May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).

° Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
” Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).

• Id. at 288, 884 S.W.2d at 944,

• Id. 293, 884 S.W.2d at 946-47.

'° Id. at 284, 884 S.W.2d at 942.

"Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted).

2 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No. 2013-100

Page 4

your proposed measure. A number of additions or changes to your ballot title are, in my view, necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

I refer to the following ambiguities:
The text of your measure as currently submitted provides as follows:

Be it enacted by the People of the State of Arkansas, Amendment 68, Section 2 of the Constitution of the State of Arkansas amended to read:

2. Protecting Life.

The State of Arkansas shall protect the life of every unborn child from conception until birth. This section is self-executing.

This measure is identical to one you have previously submitted, which I rejected in Opinion 2013-065, with the exception that you have added the final sentence quoted above.

In support of your submission, you have offered a reply to various of the objections I raised in my earlier opinion. Given its limited resources, this office is generally not situated to debate the merits of its published opinions, much less formally to reproduce its analysis in response to a materially unchanged resubmission. As a courtesy, however, I will briefly elaborate, without reproducing in full, certain of my previous points. I will further discuss what I consider an ambiguity attending the addition to your previous proposal of the final sentence recited above.

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No. 2013-100
Page 5

1. As I have previously noted, your measure is ambiguous in that it
   is unclear precisely whether the term “protect” includes adopting measures in derogation of federal law permitting abortion under specified condition. Stated differently, your measure might be read either as a mandate to protect an “unborn child” only to the extent permitted under federal law or, as your ballot title suggests, as an assertion of state power to flout controlling federal law under some undefined claim of state sovereignty.

Your revised ballot title vaguely refers to “the sovereignty of the State of Arkansas to protect the inalienable right to life of unborn children,” thus possibly hinting that your use of the term “protect” is intended to extend beyond the express limitations on abortion imposed under the federal constitution. Your measure itself, however, contains no such claim, thus rendering ambiguous the term as used in your revised version of the current amendment. Without a resolution of this ambiguity, I cannot adequately summarize this provision in a ballot title, thereby informing the voter regarding a matter he or she would reasonably consider of serious concern.

You attempt to counter this criticism by noting that the term “protect” is used elsewhere in the Arkansas Constitution. -My criticism, however, is not that the term “protect” is inherently ambiguous. It is, rather, that the term is ambiguous in the manner used in your submission.

The significance of this distinction is illustrated — rather than, as you suggest, undermined — by the occurrence of the term “protect” in the current version of Amendment 68. As I have pointed out to you before, the ambiguity in your use of this term is avoided in the current Amendment 68 by its inclusion of the crucial qualifier “except to the extent permitted by the Federal Constitution.” Your proposed deletion of this qualifier without

See Ark. Const. art. 2, § 25 (directing the legislature to “enact suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship”).

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No. 2013-100
Page 6

any substituted restriction creates precisely the ambiguity I have noted as problematic.

2. Without repeating the analysis set forth in my previous opinion, I
   will simply note that if your measure is read as intending an outright ban on abortion — a condition that, for the reasons just discussed, is by no means dictated by the measure itself — Section 2 of Amendment 68 as revised would render ambiguous unamended Sections 1 and 3. Because I have explained these ambiguities in my previous opinion, I will merely summarize them here.

Section 1 authorizes using public funds to pay for an abortion to save the life of the mother. Your proposed amendment of Section 2, if read as an invariable ban on abortions, would be inconsistent with Section 1’s authorization to expend public funds for abortion to save a mother’s life.’* Without resolution of this conflict, I cannot summarize your measure in a ballot title.

If your measure were read as flatly outlawing the destruction of any fertilized human egg, Section 3 would also be unclear in declaring that the Section 2 proscription “will not affect contraceptives.” As I noted in my previous response, reading Section 2 as barring abortions raises the question of whether the term “contraceptives” should be read in Section 3 as including abortifacient agents commonly classified under that heading. This reading would leave unclear, in other words, and hence incapable of summary in a ballot title, whether the use of abortifacients as “contraceptives” would continue to be permitted as an exception to the Section 2 proscription. Despite your contrary suggestion, this ambiguity does not exist in the current Amendment 68, which has not been and cannot be read as even potentially barring the use of abortifacient contraceptives.

'* Despite your contrary suggestion, no such conflict exists in the current Amendment 68, which acknowledges the applicability of federal law that does not foreclose abortion to save the life of the mother.

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No. 2013-100
Page 7

3. For reasons directly related to the point just made, your measure
   is likewise ambiguous in that it leaves unclear what would be its effects on the practice of in-vitro fertilization. I will not here reproduce my previous analysis on this point. I will merely note that you cannot resolve this ambiguity, as you appear to have attempted, by simply removing any reference to in-vitro fertilization from your ballot title. Without some modification of your submission, the ambiguity will continue to inhere in your measure itself.

4. You further object that your use of the terms “unborn child” and
   “conception” cannot be ambiguous because they appear in the current state constitution.'? The terms “conception” and “unborn child,” however, are not ambiguous in the current version of Amendment 68 because, as discussed in detail in my previous opinion, that amendment in its entirety has been identified by the Arkansas Supreme Court as bearing only on the public funding of abortion as permitted under federal law — i.c., after the date of viability outside of the womb. The term “unborn child” used in this context is unambiguous because it can refer only to an infant capable of survival outside of the womb. For reasons discussed above and in my previous opinion, the term as used in your measure is incapable of such clean definition.

The Arkansas Supreme Court has likewise identified the reference to “conception” in the current Section 2 as nothing more than a statement of policy prompting the proscription against the public funding of abortion as permitted under federal law. For reasons discussed in my previous opinion, within this context, precisely locating the moment of “conception” is unnecessary to give the amendment effect. However, if your proposed amendment were read as banning abortion, the same conclusion would not apply, given that defining when

'S In addressing this objection, I will ignore the fact that the term “unborn child,” if used to denote an embryo from the time of fertilization onward, would be partisan in a way that would be objectionable in a popular name or ballot title. At issue here is the use of these terms in the text of your measure itself.

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No. 2013-100

Page 8

“conception” occurs would be crucial to determining the permissibility of practices such as in-vitro fertilization.’®

Your measure is further ambiguous in that it is unclear what significance can be attached to your declaration that Section 2 as amended “‘is self-executing.” As I discussed at some length in my previous opinion, both a federal court and the Arkansas Supreme Court on various occasions have declared that Section 2 is not self-executing in its current form, which for purposes of this discussion is materially indistinguishable from the amended form you propose in your measure.

The upshot of the supreme court’s and my own opinions is that Section 2 cannot be read as self-executing because it is nothing more than a statement of policy that specifies no means whereby that policy will be realized. A “self-executing” provision is one that actually specifies such means, not one that merely declares itself as such. As the supreme court has noted, Section 2 cannot be read as “a self-executing provision that prohibits the State from engaging in any activity that furthers or advances abortions.” This problem cannot be resolved by your merely declaring a provision to be “self executing” when it fails to qualify for that designation.

Finally, I cannot accept the suggestion in your supporting brief that you are in no way obligated to acknowledge to the voter that your proposal, if read as banning abortion, would conflict with controlling federal law. Citing Plugge v. McCuen,'® you

'© You suggest in your supporting brief that no definition of “conception” is required because what you term “[s]Juch protections” of “unborn children from conception” also “apply in non-abortion-related fetal homicide, embryonic stem cel] research and IVF procedures,” This assertion is assailable both in that it is an inaccurate statement of fact and in that the use of the use of a term in one context will not of necessity dictate its meaning in another context. Again, the effect of your proposed amendment on “embryonic stem

cell research and IVF procedures” cannot be determined from the text of your measure.

'T Knowlton v. Ward, 318 Ark. 867, 875, 889 S.W.2d 721 (1994); accord Op. Att’y Gen, 2011-020.

8310 Ark. 654, 841 S.W.2d 139 (1992).

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No. 2013-100
Page 9

maintain in your brief that the facial constitutional infirmity of a proposed measure need not be communicated to the voters because the issue of a measure’s constitutionality can arise only in a lawsuit filed after a measure’s adoption. Plugge does not support this proposition, however.

With respect to your specific objection, the court in Plugge held only that a measure need not be kept off the ballot altogether because it is arguably unconstitutional under the federal constitution.” Citing its own precedent, the court suggested that a clearly unconstitutional measure should not even be placed on the ballot — an issue it deemed ripe for pre-election judicial review.” The court at no point suggested, however, that a ballot title could be totally silent regarding a measure’s patent unconstitutionality, thereby potentially misleading voters into thinking that the measure could actually be put into effect.

As discussed above and in my responses to your previous submissions, this office is charged with ensuring that the ballot title accurately informs the voter of a measure’s effects on current law. If that effect would be nil, given that the measure

'? Td at 660. At issue was whether the state term limits amendment would conflict with the Qualification Clauses of the United States Constitution. Jd.

9 Id., citing Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984). Specifically, the court remarked:

Petitioners . . . urge that, if a part or section of the proposed amendment conflicts with the Qualifications Clauses of the United States Constitution, it is this court's duty under Amendment 7 to enjoin placement of the amendment on the ballot because voters will not be aware of the constitutional issue involved and would be misled to believe the Amendment, if adopted, would be a validly enacted state law. Petitioners rely in part on the case of Czeck [sic] .. . for the proposition that, under Amendment 7, the validity of a proposed measure may be considered and decided, when it is properly raised, before the election.... /Ojur reading of Czeck [sic] reflects the binding-arbitration ordinance involved there was clearly contrary to law and should not have been submitted to the electorate, Whether the proposed amendment here contravenes the Qualification Clauses is not as clear, and as a consequence, we are not convinced the amendment should be stricken from the ballot.

Id. (emphasis added.)

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No. 2013-100
Page 10

flatly contradicts preemptive federal law on abortion, a voter is entitled to be informed of that fact, with its attendant risk that the measure, if adopted, will be stricken upon judicial challenge.

I cannot begin to certify a ballot title for your proposed amendment in the face of the ambiguities noted above. You must remedy these confusing and ambiguous points before I can perform my statutory duty.

My office, in the certification of ballot titles and popular names, does not concern itself with the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in A.C.A. § 7-9-107 and my duty is to the electorate. I am not your counsel in this matter and cannot advise you as to the substance of your proposal.

At the same time, however, the Arkansas Supreme Court, through its decisions, has placed a practical duty on the Attorney General, in exercising his statutory duty, to include language in a ballot title about the effects of a proposed measure on current law.”! Furthermore, the Court has recently confirmed that a proposed amendment cannot be approved if “[t]he text of the proposed amendment itself contribute[s] to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure.””” The Court concluded: “[I]nternal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself”? Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without clarification of the ambiguities.

My statutory duty, under these circumstances, is to reject your proposed ballot title, stating my reasons therefor, and to instruct you to “redesign” the proposed measure and ballot title.2* You may, after clarification of the matters discussed

21 See, e. g., Finn v. McCuen, supra.
*2 Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000).

23 Wg

Preston Dunn, Jr., President
Personhood Arkansas
Opinion No. 2013-100
Page 11

above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at your convenience. I anticipate, as noted above, that some changes or additions to your submitted popular name and ballot title may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.

Sincerely, /

STIN Mcp
Attorney General

DM/cyh

Enclosure

4 See A.C.A. § 7-9-107(c).

(Popular Name)

Protect the Life of Every Unborn Child from Conception until Birth

(Ballot Title)

This amendment will revise Amendment 68, Abortion, Section 2, Public Policy to reflect the sovereignty of the State of Arkansas to protect the inalienable right to life of unborn children from conception until birth. This amendment will not affect the use of contraceptives. This amendment will not require an appropriation of public funds.

Be it enacted by the People of the State of Arkansas, Amendment 68, Section 2 of the Constitution of the State of Arkansas amended to read:

2. Protecting Life.

The State of Arkansas shall protect the life of every unborn child from conception until birth. This section is self-executing.