Why did the Arkansas AG reject the Marriage Amendment ballot title over its effect on Amendment 83?

Plain-English summary

Jennifer Pierce asked the Attorney General to certify the popular name and ballot title for "The Arkansas Marriage Amendment," a proposed constitutional amendment defining marriage as the union of two persons regardless of gender. Attorney General Dustin McDaniel rejected it, and could not substitute a corrected title, because of a disconnect between what the ballot title claimed and what the measure's text actually did.

The ballot title told voters the amendment would repeal "all laws and constitutional provisions that conflict," specifically including "constitutional Amendment 83," the 2004 provision on marriage. But Amendment 83 has three sections, and the measure's text only clearly repealed Section 1 (the definition of marriage as one man and one woman). It said nothing about Section 2, which limits Arkansas's recognition of same-sex marriages and "substantially similar" relationships validly entered into out of state. So the title suggested a full repeal of Amendment 83 while the text left part of it standing. The AG had flagged the same gap in an earlier, similar submission (Opinion 2013-072). Because voters must be told how a measure would change existing law, and this one's title and text pointed in different directions, he could not summarize it fairly and had to reject it. As always, he emphasized that the decision said nothing about the merits of same-sex marriage.

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: What exactly was the problem with this ballot title? A: The title said the measure repealed Amendment 83 entirely, but the text only repealed Amendment 83's Section 1 (the one-man-one-woman definition). The text was silent on Section 2, which restricts recognition of out-of-state same-sex marriages and civil unions. That internal disconnect made an accurate summary impossible.

Q: Why couldn't the AG just fix the wording?
A: Under A.C.A. § 7-9-107 he can substitute a better title only when he can produce an accurate one. Here the ambiguity was in the measure's own text (what it did to Amendment 83's Section 2), so he could not resolve it by rewriting the title alone.

Q: Was the AG saying the measure was unconstitutional or a bad idea? A: No. He repeated that his office does not consider the merits, philosophy, or ideology of a proposal. His duty was to the electorate, to ensure the ballot title honestly and completely summarizes the measure, and this one did not.

Q: Could the sponsor resubmit?
A: Yes. His statutory duty on rejection was to state his reasons and instruct the sponsor to "redesign" the measure and title; he invited resubmission after the Amendment 83 gap was clarified. (A later submission from the same sponsor is addressed in Opinion 2013-130.)

Background and statutory framework

The Attorney General must certify a proposed measure's popular name and ballot title before petitions can circulate (A.C.A. § 7-9-107). The Arkansas Supreme Court requires the title to give voters a fair understanding of the issues and to disclose essential facts, while remaining brief and concise (A.C.A. § 7-9-107(b)) so voters do not exceed the five-minute booth limit of A.C.A. § 7-5-522. The AG applied that framework from decisions like Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000), Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), and Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), which hold that internal inconsistencies in a measure's own text can make a proper title impossible to write.

Amendment 83, adopted in 2004, is the constitutional provision the measure sought to repeal. Its three sections address the definition of marriage, the recognition of "substantially similar" marital status (including out-of-state relationships), and the legislature's power over the capacity and incidents of marriage. The gap between repealing all of it and repealing only its first section is what sank this submission.

Citations and references

Statutes:

• A.C.A. § 7-9-107 (Repl. 2011) (AG certification of popular name and ballot title)
• A.C.A. § 7-9-107(b) (ballot title must be brief and concise)
• A.C.A. § 7-5-522 (five-minute limit in the voting booth)
• Ark. Const. Amendment 83 (marriage; marital status; capacity)

Cases:

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), essential-facts and ballot-title standards
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), internal inconsistencies in a measure's text
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)

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. 2013-122

October 7, 2013

Jennifer Pierce
1501 North University, Suite 228
Little Rock, Arkansas 72207

Dear Ms. Pierce:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2011), of the popular name and ballot title for a proposed constitutional amendment. You have previously submitted a similar measure, which this office rejected due to deficiencies in the ballot title and text. See Op. Att’y Gen. No. 2013-111. You have made changes to your proposal since your last submission and have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

THE ARKANSAS MARRIAGE AMENDMENT

Ballot Title

An amendment to the Arkansas Constitution to provide that marriage consists of the union between two persons regardless of gender; providing that no member of the clergy or religious organization shall be required to provide services, facilities or goods relating to the solemnization of marriage; providing that all laws and constitutional provisions that conflict with this amendment are hereby repealed to the extent that they conflict with this amendment, specifically including constitutional Amendment 83 that provides that marriage consists only of a union of one man and one woman and any Arkansas law that prohibits same sex marriage.

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/

Jennifer Pierce
Opinion No. 2013-122
Page 2

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 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).

Jennifer Pierce
Opinion No. 2013-122
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 linc.® 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.'”

Furthermore, the Court has confirmed that a proposed amendment cannot be approved if “[t]he text of the proposed amendment itself contribute[s] to the

4 E.g., Chaney v. 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 y. 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,

9 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).

Jennifer Pierce
Opinion No. 2013-122
Page 4

confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure.”!? The Court concluded that “internal 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.

Having applied the above precepts to your proposed amendment, I conclude that I am unable to certify your proposal as submitted. Further, due to an ambiguity generated by your summary of the proposal’s effect on current law, I am unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

In your prior submission (addressed in Op. 2013-111), I noted that your ballot title was wholly deficient because it made no attempt to summarize for the voter how your proposal would affect existing law. While your current proposal does attempt such a summary, it does so in a way that creates an ambiguity. In short, there seems to be a disconnect between your understanding of the proposal (as explained in your proposed ballot title) and your proposal’s text.

Your ballot tithe now summarizes your measure as if the measure repeals Amendment 83 entirely:

[A]ll laws and constitutional provisions that conflict with this amendment are hereby repealed to the extent that they conflict with this amendment, specifically including constitutional Amendment 83 that provides that marriage consists only of a union of one man and one woman and any Arkansas law that prohibits same sex marriage.

Amendment 83 to Arkansas’s Constitution has three sections:

§ 1. Marriage
Marriage consists only of the union of one man and one woman.

"3 Roberts vy. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000).

14 Id.

Jennifer Pierce
Opinion No. 2013-122
Page 5

§ 2. Marital Status

Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman.

§ 3. Capacity, rights, obligations, privileges, and immunities

The Legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage.

The text of your proposal clearly repeals Section 1 of Amendment 83. But your proposal is silent with respect to Section 2 of Amendment 83, which places certain limitations on Arkansas law regarding the recognition of same-sex marriages (or a status “substantially similar” thereto) validly entered into out-of-state. I pointed this out in Opinion No. 2013-072, which was a response to a proposal that was very similar to yours.’

Despite the fact that the text of your proposal is silent regarding the matters addressed in Section 2 of Amendment 83, your ballot title suggests that your proposal specifically repeals “Constitutional Amendment 83.” Thus, there is an internal disconnect between the proposed ballot title and the proposal’s text. I am unable to resolve this tension. Voters must be made aware of how your proposed amendment would affect Amendment 83. Absent clarification, I cannot summarize your proposal in a fair, complete, and impartial ballot title.

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.

'S Opinion No. 2013-072, p. 3 (“For example, you have not attempted to convey to the voter the provisions of Amendment 83, which (a) prohibits same-sex marriage and (5) prohibits the General Assembly from recognizing same-sex marriages validly entered into out-of-state. While your proposal would clearly supplant the former, you have not indicated how the proposal would affect the latter,”).

Jennifer Pierce
Opinion No. 2013-122
Page 6

My statutory duty, under these circumstances, is to reject your proposed ballot title (for the foregoing reasons) and instruct you to “redesign” the proposed measure and ballot title. You may, after addressing the matters discussed 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,
Yn MiG
Attorney General

DM/cyh

Enclosure

POPULAR NAME

The Arkansas Marriage Amendment

BALLOT TITLE

AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO PROVIDE THAT MARRIAGE CONSISTS OF THE UNION BETWEEN TWO PERSONS REGARDLESS OF GENDER; PROVIDING THAT NO MEMBER OF THE CLERGY OR RELIGIOUS ORGANIZATION SHALL BE REQUIRED TO PROVIDE SERVICES, FACILITIES OR GOODS RELATING TO THE SOLEMNIZATION OF MARRIAGE; PROVIDING THAT ALL LAWS AND CONSTITUTIONAL PROVISIONS THAT CONFLICT WITH THIS AMENDMENT ARE HEREBY REPEALED TO THE EXTENT THAT THEY CONFLICT WITH THIS AMENDMENT, SPECIFICALLY INCLUDING CONSTITUTIONAL AMENDMENT 83 THAT PROVIDES THAT MARRIAGE CONSISTS ONLY OF A UNION OF ONE MAN AND ONE WOMAN AND ANY ARKANSAS LAW THAT PROHIBITS SAME SEX MARRIAGE.

SECTION ONE. Marriage consists of the union between two persons regardless of gender.

SECTION TWO. No member of the clergy or religious organization shall be required to provide services, facilities or goods relating to the solemnization of marriage.

SECTION THREE. All laws and constitutional provisions that conflict with this amendment are hereby repealed to the extent that they conflict with this amendment.