Did the revised 2013 Arkansas same-sex marriage amendment fix its ballot title problem?

Plain-English summary

This was Jennifer Pierce's latest attempt to get a ballot title certified for "The Arkansas Marriage Amendment," a proposed constitutional amendment recognizing marriage between two persons regardless of gender. She had revised the measure to fix a problem the Attorney General identified in an earlier submission (Opinion 2013-122): that its ballot title claimed to repeal Amendment 83 in full while its text left part of Amendment 83 untouched. Attorney General Dustin McDaniel found the revision helped but did not go far enough, so he again rejected it.

The sticking point was Amendment 83's treatment of out-of-state relationships. Amendment 83 does two related things: it bars recognition of out-of-state same-sex marriages, and, in what the AG called its "civil union provision," it bars recognition of out-of-state relationships that are "substantially similar" to marriage but involve unmarried persons (such as civil unions). Pierce's revision added a sentence saying "Arkansas law shall recognize all marriages validly entered into in another state," which addressed the marriage piece but not the civil-union piece, because civil unions involve unmarried persons. Yet her ballot title still told voters the measure repealed Amendment 83 in its entirety. That left the same disconnect between the title's claim and the measure's actual effect, so the AG could not write an accurate summary and had to reject it, again emphasizing that his decision said nothing about the merits of the proposal.

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: How was this submission different from the earlier one? A: Pierce had added a sentence to the text: "Arkansas law shall recognize all marriages validly entered into in another state." The AG agreed this resolved part of the earlier ambiguity about Amendment 83, but not all of it.

Q: So what was still unresolved?
A: Amendment 83's "civil union provision," which limits recognition of out-of-state relationships "substantially similar" to marriage between unmarried persons. Because the new sentence spoke only about "marriages," it did not address that civil-union piece, and the measure stayed silent on whether such out-of-state civil unions would be recognized.

Q: If the text was silent, why not just leave it out of the summary? A: Because the ballot title did not stay silent. It affirmatively told voters the measure repealed "constitutional Amendment 83" in full. The AG found that an inaccurate summary of what the text actually did, and he could not rewrite the title to match a text whose effect on Amendment 83 remained ambiguous.

Q: Was the AG blocking same-sex marriage from the ballot? A: No. He repeated that his office does not consider the merits, philosophy, or ideology of a measure, and that his duty is to the electorate to ensure a fair, accurate ballot title. He invited Pierce to clarify the remaining ambiguity and resubmit.

Background and statutory framework

The Attorney General must certify a proposed measure's popular name and ballot title under A.C.A. § 7-9-107 before petitions circulate, and may substitute a corrected title only when he can produce an accurate summary. 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)) to respect the five-minute booth limit of A.C.A. § 7-5-522. The AG drew these standards from cases such as 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).

This opinion is the last in a chain of 2013 same-sex marriage submissions from the same sponsor. Amendment 83, adopted by Arkansas voters in 2004, defined marriage as one man and one woman and restricted recognition of out-of-state same-sex marriages and "substantially similar" relationships. Each proposal in the chain foundered on how clearly, and how completely, its ballot title explained the change it would make to that amendment.

Citations and references

Statutes:

• A.C.A. § 7-9-107 (Repl. 2013) (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; out-of-state recognition)

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
DustTIn McDANIEL

Opinion No. 2013-130

October 25, 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. 2013), of the popular name and ballot title for a proposed constitutional amendment. You have previously submitted similar measures, which this office rejected due to deficiencies in the ballot title and texts. See Op. Att’y Gen. Nos. 2013-111, 2013-122. You have altered 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 Arkansas shall recognize all marriages validly entered into in another state; 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

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. 2013-130
Page 2

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 a marriage consists only of a union of one man and one woman and any Arkansas law that prohibits same sex marriage

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.

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

Jennifer Pierce
Opinion No. 2013-130
Page 3

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 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,

• 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).

• 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 vy. 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.

Jennifer Pierce
Opinion No. 2013-130
Page 4

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 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 analyzed your proposed amendment, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I am unable to certify your proposal because it fails to fully resolve the ambiguity I noted in response to your most recent submission.

In my response to your first submission (Op. 2013-111), I explained that your ballot title was wholly deficient because it made no attempt to summarize for the voter how your proposal would affect existing law. In my response to your second submission (Op. 2013-122), I noted that your attempt to provide such a summary created an ambiguity. While your current submission resolves part of that ambiguity, it is not entirely resolved. The continuing presence of this ambiguity

'° 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).

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

4 Ig

Jennifer Pierce
Opinion No. 2013-130
Page 5

prevents me from ensuring that your ballot title accurately summarizes your proposal’s text and adequately apprises voters of the changes in existing law.

Briefly stated, the continuing ambiguity is whether the following kind of relationship might be legally recognized in Arkansas if your proposed measure is adopted: (1) that of unmarried persons (2) who have entered into a legally- recognized relationship (3) that is “identical to or substantially similar to marriage,” such as a civil union, (4) that was entered into out-of-state.

I pointed out this problem in my response to your most recent submission. There I noted that although your proposed measure was silent regarding its effects on, among other things, Section 2 of Amendment 83 to our state constitution, your proposed ballot title indicated that the measure would entirely repeal Amendment

83. As I explained in my previous opinion, Section 2 of Amendment 83 “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.”’> For ease of reference, I will refer to this as Amendment 83’s “civil union provision.”

The only attempt you have made to address this disconnect between your proposed ballot title and the text of your measure is to add a new provision to the text, and then include a verbatim copy of that language in the ballot title. That new provision states: “Arkansas law shall recognize all marriages validly entered into in another state.” (Emphasis added.) But, as you can see from the foregoing, this leaves unaddressed the civil union provision (which pertains to unmarried persons).

Nevertheless, you summarize your measure as though Amendment 83 would be repealed in its entirety. Your ballot title states that “all laws and constitutional provisions that conflict with this Amendment are hereby repealed, specifically including constitutional Amendment 83....” This inaccurate summary of your proposed measure’s effects leads to two deficiencies. First, the proposed summary would mislead the voters regarding your proposed measure’s effects on existing

'> Op. Att’y Gen, No. 2013-122, p. 5 (emphasis added).

Jennifer Pierce
Opinion No. 2013-130
Page 6

law. Second, it indicates that you might misunderstand the full effect of your proposed measure. This disconnect between your proposal’s text and its summary renders me unable to modify your ballot title to more accurately reflect its effect on Amendment 83 when considered in its entirety.

Without clarification of this ambiguity, I am unable to certify your proposal.

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.

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,

Lok RD A

DUSTIN MCDANIEL
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 ARKANSAS SHALL RECOGNIZE ALL MARRIAGES VALIDLY ENTERED INTO IN ANOTHER STATE; 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 A 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. Arkansas shall recognize all marriages validly entered into in

another state.

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

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