Did the Arkansas AG approve the ballot title to repeal the state's marriage amendment?

Arkansas AG Opinion 2013-114: Repeal Marriage Amendment

Plain-English summary

Opinion 2013-114 certified the popular name "Repeal of the Arkansas Marriage Amendment" as submitted and certified a revised ballot title for a proposal to repeal Arkansas Constitution Amendment 83.

"the popular name ‘Repeal of the Arkansas Marriage Amendment’ is sufficient. It is therefore hereby certified as submitted."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"several changes and additions are needed to your proposed ballot title to give the electors a clear understanding of the proposed amendment."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

The revised title explained what Amendment 83 provided, stated that repeal alone would not legalize same-sex marriage because a statutory ban then remained, and said repeal would restore the General Assembly's authority to legislate on the subject.

"This proposed repeal of Amendment 83, if approved by the voters, will not in itself legalize same-sex marriage, which is currently prohibited by Arkansas statute. This amendment will revive the General Assembly’s authority to pass such laws relating to same-sex marriage as it deems appropriate."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

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

What did Amendment 83 provide according to the certified title?

It provided that marriage consisted only of the union of one man and one woman and barred recognition of an identical or substantially similar legal status for unmarried persons.

"Amendment 83 provides that marriage consists only of the union of one man and one woman and that legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Would repeal alone have legalized same-sex marriage under the law described in 2013?

No. The revised title said a separate Arkansas statute still prohibited same-sex marriage at that time.

"This proposed repeal of Amendment 83, if approved by the voters, will not in itself legalize same-sex marriage, which is currently prohibited by Arkansas statute."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

What authority would repeal have returned to the legislature?

The certified title said repeal would revive the General Assembly's authority to pass laws concerning same-sex marriage.

"This amendment will revive the General Assembly’s authority to pass such laws relating to same-sex marriage as it deems appropriate."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Did certification mean the AG supported the repeal?

No. The opinion said certification did not reflect the AG's view of the proposal's merits.

"Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

What had to accompany the petition?

Instructions to canvassers and signers had to precede each petition under A.C.A. § 7-9-108.

"Pursuant to A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Background and statutory framework

The initiative language itself was a single sentence repealing Amendment 83.

"Amendment 83 to the Arkansas Constitution is repealed."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

A.C.A. § 7-9-107 required AG review before circulation. The opinion's task was to determine whether the popular name and ballot title accurately and impartially summarized the proposal, not to decide its merits.

"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."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Holding

The AG certified the popular name as submitted and certified a revised ballot title explaining Amendment 83 and the legal effect attributed to its repeal in 2013.

"The following is hereby certified in order to ensure that, when construed together, the popular name and ballot title accurately set forth the purpose of the proposed amendment."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Citations and references

Statutes discussed by Opinion 2013-114:

• "A.C.A. § 7-9-107" Official opinions search
• "A.C.A. § 7-9-107(b)" Official opinions search
• "A.C.A. § 7-5-522" Official opinions search
• "A.C.A. § 7-9-108" Official opinions search

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DusTIN McCDANIEL

Opinion No. 2013-114

September 19, 2013

Christina Harrison, Founder
Arkansans for Equality
10010 Raymond Drive

Little Rock, Arkansas 72205

Dear Ms. Harrison:
This is in response to your request for certification, pursuant to A.C.A. § 7-9-107
(Repl. 2007), of the following popular name and ballot title for a proposed

constitutional amendment:

Popular Name

REPEAL OF THE ARKANSAS MARRIAGE AMENDMENT

Ballot Title

A proposed amendment to the Arkansas constitution which will
repeal Amendment 83, the Arkansas marriage amendment that
prohibits same sex marriages in Arkansas and prohibits recognition
of civil unions and relationships similar to marriage; this amendment
would restore all Arkansas laws relating to marriage which were in
effect prior to the adoption of Amendment 83, including the General
Assembly’s statutory ban on same-sex marriage, and to the extent
the General Assembly has passed additional legislation since the
adoption of Amendment 83, that legislation would also remain in
effect; this proposed amendment, if passed, will not make same-sex
marriage or civil unions legal but will reinvest the General Assembly
with the power to pass such laws relating to same sex marriage as it

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/

Christina Harrison, Founder
Arkansans for Equality
Opinion No. 2013-114
Page 2

deems appropriate and will allow the courts to this state to interpret
and construe those laws.

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
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,

' 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 y. 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).

Christina Harrison, Founder
Arkansans for Equality
Opinion No. 2013-114

Page 3

but it must not be misleading or give partisan coloring to the merit of the
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 title 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.'” The ballot title
must be honest and impartial,'! and it must convey an intelligible idea of the scope
and significance of a proposed change in the law.’

Having analyzed your proposed amendment, as well as your proposed popular
name and ballot title under the above precepts, it is my conclusion that the popular
name “Repeal of the Arkansas Marriage Amendment” is sufficient. It is therefore
hereby certified as submitted.

“ E.g., Chaney y. Bryant, 259 Ark, 294, 297, 532 S.W.2d 741, 743 (1976). ; Moore v. 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.

'° Td. at 284, 884 S.W.2d at 942.

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

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

Christina Harrison, Founder
Arkansans for Equality
Opinion No. 2013-114

Page 4

In my judgment, however, several changes and additions are needed to your
proposed ballot title to give the electors a clear understanding of the proposed
amendment. The following is hereby certified in order to ensure that, when
construed together, the popular name and ballot title accurately set forth the
purpose of the proposed amendment:

Ballot Title

An amendment to the Arkansas Constitution to repeal Arkansas
Constitution Amendment 83, the Arkansas marriage
amendment. Amendment 83 provides that marriage consists only of
the union of one man and one woman and that legal status for
unmarried persons which is identical or substantially similar to
marital status shall not be valid or recognized in Arkansas. This
proposed repeal of Amendment 83, if approved by the voters, will
not in itself legalize same-sex marriage, which is currently
prohibited by Arkansas statute. This amendment will revive the
General Assembly’s authority to pass such laws relating to same-sex
marriage as it deems appropriate.

Pursuant to A.C.A. § 7-9-108, instructions to canvassers and signers must precede
every petition, informing them of the privileges granted by the Constitution and of
the penalties imposed for violations of this act. Enclosed herewith, over the
signature of the Attorney General, are instructions that should be incorporated in
your petition prior to circulation.

Sincerely,
DUSTIN MCDANIEL™ ©
Attorney General

DM/cyh

Enclosures

INSTRUCTIONS TO CANVASSERS AND SIGNERS

1. Amendment No. 7 to the Arkansas Constitution gives to the people of the State of
   Arkansas the power to propose legislation or constitutional amendments by initiative
   petition, and to order the referendum against any general act or any item of an
   appropriation bill, or measure passed by the General Assembly. The petition must be
   signed by eight percent (8%) of the legal voters in the case of proposed legislation, ten
   percent (10%) in the case of proposed constitutional amendments, and six percent (6%) in
   the case of a referendum. The proposed legislation or constitutional amendment must be
   submitted to the registered voters of the State at a regular election; referendum petitions
   may be referred to the people at special elections when fifteen percent (15%) of the
   registered voters petition for such special election. Any measure submitted to the people
   shall take effect and become a law when approved by a majority of the votes cast upon
   such measure.

2. Only registered voters may sign. Printed names, dates of birth, residences, cities or
   towns of residences, and date of signing must be given as an aid to verification. The
   petition should contain only the signatures of voters residing in a single county.

3. All signatures must be in the signers’ own handwriting in the presence of the
   persons circulating the petition. If a petition signer requires assistance due to disability,
   another person may provide the signer’s information and that person shall sign and print
   their name in the margin of the petition.

4. Do not attach additional sheets to this petition unless such sheets contain the full
   language of the petition. Place as many names as possible on each petition. No additional
   signatures may be obtained after a petition has been filed until the Secretary of State
   determines the sufficiency of the petition.

5. TO KNOWINGLY SIGN ANY NAME OTHER THAN YOUR OWN, TO
   KNOWINGLY SIGN YOUR NAME MORE THAN ONCE TO ANY PETITION, TO
   KNOWINGLY SIGN YOUR NAME WHEN YOU ARE NOT LEGALLY ENTITLED
   TO SIGN IT, TO KNOWINGLY PAY A PERSON ANY FORM OF COMPENSATION
   IN EXCHANGE FOR SIGNING A PETITION AS A PETITIONER, TO ACCEPT
   MONEY FOR OBTAINING SIGNATURES KNOWING THAT YOU ARE NOT
   INCLUDED ON THE SPONSOR’S LIST OF PAID CANVASSERS ON FILE WITH
   THE SECRETARY OF STATE, TO KNOWINGLY AND FALSELY MISREPRESENT
   THE PURPOSE AND EFFECT OF THIS PETITION FOR THE PURPOSE OF
   CAUSING ANYONE TO SIGN IT, OR TO KNOWINGLY MAKE A FALSE
   STATEMENT ON A PETITION VERIFICATION FORM SHALL CONSTITUTE A
   CLASS “A” MISDEMEANOR AND SUBJECT THE OFFENDER TO A FINE OF UP
   TO $1,000.00 AND IMPRISONMENT FOR UP TO ONE (1) YEAR.

The Attorney General is by law required to certify the sufficiency of the popular name
and ballot title of all initiative or referendum petitions. This certification does not
necessarily indicate the approval or disapproval of the contents thereof.

DUSTIN McDANIEL
Attorney General of the State of Arkansas

Popular name:

Repeal of the Arkansas Marriage Amendment

Ballot Title:

A proposed amendment to the Arkansas constitution which will repeal Amendment 83,
the Arkansas marriage amendment that prohibits same sex marriages in Arkansas and
prohibits recognition of civil unions and relationships similar to marriage; this
amendment would restore all Arkansas laws relating to marriage which were in effect
prior to the adoption of Amendment 83, including the General Assembly's statutory ban
on same-sex marriage, and to the extent the General Assembly has passed additional
legislation since the adoption of Amendment 83, that legislation would also remain in
effect; this proposed amendment, if passed, will not make same-sex marriage or civil
unions legal but will reinvest the General Assembly with the power to pass such laws
relating to same sex marriage as it deems appropriate and will allow the courts to this
state to interpret and construe those laws.

Initiative language:

Amendment 83 to the Arkansas Constitution is repealed.