Could Arkansas adopt a California-style top-two primary, or otherwise force political parties to nominate by convention or accept all comers?

Plain-English summary

Senator Jake Files asked AG Dustin McDaniel a series of constitutional questions about election reform proposals that have spread to other states. The questions divided into two scenarios: a top-two primary (like California, Washington, and Louisiana run) followed by a general election between the top two, and a general election open to all comers with a runoff if no candidate gets a majority. For each, Files asked whether Arkansas could (a) require political parties to nominate by convention with no candidate limit, (b) require parties to accept any candidate who pays a fee and signs a pledge, and (c) allow candidates to list a party affiliation on the ballot without the party's consent.

The AG worked through nine questions. The bottom line:

Top-two primary (Q1-5): Probably unconstitutional under Arkansas Constitution Amendment 29. The AG read Amendment 29 as requiring partisan nominations and majority outcomes in primary elections for state and county offices, which a top-two structure undermines by collapsing party primaries into a single open-field election. The AG noted that California Democratic Party v. Jones, 530 U.S. 567 (2000), struck down California's old blanket primary as violating parties' First Amendment associational rights by forcing parties to allow non-members to vote in their primaries. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), upheld Washington's top-two structure on facial challenge but left open as-applied challenges. The combination of state constitutional issues under Amendment 29 and federal First Amendment exposure made the AG "highly suspect" of any Arkansas top-two scheme.

Question 6 (general-election convention nomination): Probably yes. In a general-election-only structure, parties could be required to nominate by convention with no candidate limit, because the convention method is the party's own internal mechanism and does not raise the same constitutional issues as state-imposed primary structures.

Questions 7 and 8 (party-forced acceptance of fee-paying or affidavit candidates): Probably no. Requiring a party to accept any candidate who pays a fee or signs a pledge intrudes on the party's First Amendment associational right to choose its own nominees. Under California Democratic Party v. Jones, the state cannot force parties to allow association with non-members.

Question 9 (independent candidates listing a party affiliation without consent): Suspect on the fee mechanism, probably permissible on the petition-of-electors mechanism. The AG questioned whether a filing fee alone could suffice for ballot access with party affiliation, but a genuine petition-of-electors requirement would likely be authorized. Even so, the parties' First Amendment associational rights must be respected when designing the mechanism to avoid misleading voters about party endorsement.

Currency note

This opinion was issued in 2014. 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. Federal case law on top-two primaries continues to evolve, and Arkansas has not adopted a top-two structure.

Common questions

What is a "top-two" primary?
A primary election where all candidates for an office, regardless of party affiliation, appear on a single ballot. All voters may vote for any candidate. The top two vote-getters advance to the general election, regardless of party.

Why is Amendment 29 a problem for top-two primaries in Arkansas?
Amendment 29 to the Arkansas Constitution structures primary elections in a way the AG read as presupposing partisan nominations and majority outcomes. A top-two structure that consolidates all candidates into a single pool, regardless of party, conflicts with that presupposition.

Why is forcing parties to accept all candidates a First Amendment problem?
California Democratic Party v. Jones held that political parties have a First Amendment right of association that includes choosing their own nominees. Forcing a party to nominate someone the party would not have chosen, on the basis only of a fee or pledge, intrudes on that right.

Could Arkansas require parties to nominate by convention?
For general elections (where parties are not running a state-administered primary), probably yes. The convention is the party's own mechanism, and a state requirement to use it would not force the party into association with unwanted candidates.

Does this opinion stop Arkansas from changing its primary system?
No. AG opinions are persuasive but not binding. The opinion outlines the constitutional risks. The legislature could still enact changes; the courts would then have to evaluate them on the specifics.

Background and statutory framework

Arkansas Constitution Amendment 29 governs the manner of primary elections for state and county offices. The AG read it as embedding partisan-nomination structure and majority-vote requirements in primary contests, making any reform that abandons partisan-primary structure constitutionally suspect.

The federal cases the AG relied on:

• California Democratic Party v. Jones, 530 U.S. 567 (2000): struck down California's open primary (where any voter could vote in any party's primary) as a violation of parties' First Amendment associational rights.
• Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008): upheld Washington's top-two primary on facial challenge. The Court left open as-applied challenges where voters might misinterpret listed party preferences as actual party endorsements.
• The 2011 district court decision in Wash. State Republican Party v. Wash. State Grange addressed the as-applied challenge after voters could be tested under the actual system.

The AG's analysis combines Arkansas constitutional law (Amendment 29) with the federal First Amendment line, producing a layered analysis of why various reform proposals would face challenges from one or both directions.

Citations

• California Democratic Party v. Jones, 530 U.S. 567 (2000) (blanket primary unconstitutional)
• Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) (top-two upheld on facial challenge)
• Wash. State Republican Party v. Wash. State Grange, No. C05-0927-JCC, 2011 WL 92032 (W.D. Wash. Jan. 11, 2011) (as-applied challenge to Washington top-two)
• Ark. Const. amend. 29 (manner of primary elections)
• Chenwei Zhang, Towards a More Perfect Election: Improving the Top-Two Primary for Congressional and State Races, 73 Ohio St. L.J. 615 (2012)

Source

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

Original opinion text

Opinion No. 2013-132
February 3, 2014
The Honorable Jake Files
State Senator
300 Free Ferry Landing
Fort Smith, Arkansas 72903
Dear Senator Files:
STATE OF ARKANSAS
THE ATTORNEY GENERAL
DusTIN McDANIEL
This is in response to your request for my opm10n on the constitutionality of
several hypothetical requirements for placing candidates on the ballot in an
election in Arkansas. Your first set of questions involves a so-called "top-two"
primary in which candidates of all parties, independents and write-ins run against
each other in an "all comers" primary election.1 The second method in question
1 Louisiana, Washington, and California have adopted the ' top-two" primary. See Chenwei Zhang,
Towards a More Perfect Election: Improving the Top-Two PrimaJJ• for Congressional and State Races, 73
Ohio St. L.J. 615 (2012). The top-two primary is derived from the 'blanket primary" election scheme. Id.
at 621 (footnote omitted). In the blanket primary, a single ballot lists all candidates from all political
parties and all voters may vote for any candidate from any political party (with th top-two vote getters
from each party advancing to the general election). California Democratic Party v. Jones, 530 U.S. 567,
570 (2000). In California Democratic Primary, the United tates upreme Court struck down California's
partisan blanket primary as violating political parties' associational rights because it required them to allow
non-members to vote in their primaries even when a party wished to exclude non-members. Id. The top-
two primary is "a 'nonpartisan' variation on the blanket primary, where the top vote-getters can advance to
the general election regardless of the political party to which they belong." Zhang, supra, at 623-24. In
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), the United States
Supreme Court examined this scheme and rejected a facial challenge to Washington's top-two primary
because this primary by its terms did not choose the parties' nominees. See id. at 453. The Court IeTt open
the possibility for an as-applied challenge that parties' association rights might be implicated if voters
misinterpreted candidates' listed party preferences as reflecting endorsement by the parties. Id. at 455-56.
Such a challenge was mounted. Wash. State Republican Party v. Wash. State Grange, No. C05-0927-JCC,
2011 WL 92032, at 7 (W.D. Wash. Jan. 11, 2011). But the district court held that Washington's
implementation of its top-two primary was constitutional because the ballot title eliminated the possibility
of voter confusion. Id. at 5. The Ninth Circuit Court of Appeals affirmed. Wash. State Republican Party
v. Wash. State Grange, 676 F.3d 784 (9th Cir. 2012), cert. denied, 133 S.Ct. 110 (Oct. 1, 2012).
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/ The Honorable Jake Files
State Senator
Opinion No. 2013-132
Page 2
involves an open general election with a runoff system. You have asked,
specifically:

1. May the state provide for a "top-two" primary in which the top
   two vote-getters, regardless of party affiliation (or lack thereof),
   and regardless of whether one candidate achieves a majority of
   the vote, advance to the general election? Under the hypothetical
   structure, a candidate who wished to run in a party affiliation
   listed on the ballot would receive a party certificate and be listed
   with a party affiliation if the candidate meets party requirements
   such as paying a fee or filing a petition. There would not be a
   party convention and parties could field multiple candidates in
   the primary. The top two vote-getters would advance to the
   general election even if one candidate received 99% of the vote
   and second place got just .5%.
2. Alternatively, may the state require the political parties to
   nominate candidates for such a primary by convention in which
   the parties could nominate as many candidates as they desire for
   a position?
3. Alternatively, may the state require the political parties to have a
   convention and nominate for the top-two primary any candidate
   who pays a fee, if required by the party, signs a party pledge, if
   required by the party, and submits an affidavit of eligibility to
   party officials?
4. In addition to party candidates, the "top two" structure would
   also allow independent candidates to access the primary ballot by
   petition, and would allow a procedure for write-in votes to be
   counted. Could such a structure accurately be characterized as a
   nonpartisan primary and thus not subject to any restrictions that
   may be contained in Amendment 29?
5. In light of Amendment 29 or any other constitutional provision,
   may the state allow candidates to file for the primary by paying a
   fee or filing a petition with the state or county and have a party
   affiliation of their choosing shown on the primary and general
   election ballot without filing with a party and without the consent
   of the party? The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 3
   Another method used in at least one state is for the general election
   to be open to all comers with a runoff between the top two vote-
   getters being held some weeks after the general election if no
   candidate receives a majority of the vote. My questions involving
   such a runoff system are as follows:
6. May the state require the political parties to nominate candidates
   for the general election by convention in which the parties could
   nominate as many candidates as they desire for a position?
   [Emphasis original.]
7. Alternatively, may the state require the political parties to
   nominate for the general election any candidate who pays a fee
   or files a petition? [Emphasis original.]
8. Alternatively, may the state require the political parties to have a
   convention and nominate for the general election any candidate
   who pays a fee, if required by the party, signs a party pledge, if
   required by the party, and submits an affidavit of eligibility to
   party officials? [Emphasis original.]
9. May the state allow candidates to file for the general election by
   paying a fee or filing a petition with the state or county and have
   a party affiliation of their choosing shown on the ballot without
   filing with a party and without the consent of the party?
   [Emphasis original.]
   RESPONSE
   It is my opinion in response to your first set of questions that a so-called "top two"
   primary would be highly suspect as conflicting with Amendment 29 to the
   Arkansas Constitution.2 The answer to your sixth question is in all likelihood
   generally "yes." It is my opinion that the answer to Questions 7 and 8 is probably
   "no," because these alternatives would likely fail to withstand constitutional
   2 Although it does not bear directly on your questions, it should be noted in passing that the district court in
   Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. 1990), ordered the State of Arkansas to preclear, pursuant to
   Section 3(c) of the Voting Rights Act, "any further statutes, ordinances, regulations, practices, or standards
   imposing or relating to a majority-vote requirement in general elections in this State .... " Id. at 601. The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 4
   scrutiny. With regard to Question 9, while I question the filing fee, a petition-of-
   electors requirement would be authorized. But consideration must be given to the
   parties' First Amendment associational rights when implementing any such
   requirement.
   Question 1 - May the state provide for a "top-two" primary in which the top two
   vote-getters, regardless of party affiliation (or lack thereof), and regardless of
   whether one candidate achieves a majority of the vote, advance to the general
   election? Under the hypothetical structure, a candidate who wished to run in a
   party affiliation listed on the ballot would receive a party certificate and be listed
   with a party affiliation if the candidate meets party requirements such as paying
   a fee or filing a petition. There would not be a party convention and parties
   could field multiple candidates in the primary. The top two vote-getters would
   advance to the general election even if one candidate received 99% of the vote
   and second place got just .5%.
   This question and your remaining questions regarding a "top-two" primary call for
   the interpretation of Section 5 of Amendment 29 to the Arkansas Constitution
   (hereinafter "Section 5"), which states:
   Only the names of candidates for office nominated by an organized
   political party at a convention of delegates, or by a majority of all
   the votes cast for candidates for the office in a primary election, or
   by petition of electors as provided by law, shall be placed on the
   ballots in any election. 3
   3 Amendment 29 was initiated by the voters and adopted on November 8, 1938. As codified, it states in
   full:
   § 1. Elective offices - Exceptions.
   Vacancies in the office of United States Senator, and in all elective state, district, circuit,
   county, and township offices except those of Lieutenant Governor, Member of the
   General Assembly and Representative in the Congress of the United States, shall be filled
   by appointment by the Governor.
   § 2. Ineligible persons - Nepotism.
   The Governor, Lieutenant Governor and Acting Governor shall be ineligible for
   appointment to fill any vacancies occurring or any office or position created, and
   resignation shall not remove such ineligibility. Husbands and wives of such officers, and
   relatives of such officers, or of their husbands and wives within the fourth degree of The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 5
   Section 5 identifies three nomination methods for the placement of candidates on
   the official election ballot: political party convention action, primary action, or
   petition of electors.4 If the nomination is by primary, such nomination must be
   made by majority vote. Under the proposed "top-two" primary, a candidate will
   advance to the general election notwithstanding that he or she did not poll a
   majority in the primary. At issue, therefore, is the scope of Section S's majority
   vote requirement.
   While Amendment 29 ha~ been the subject of a number of Arkansas Supreme
   Court decisions, most involve either a threshold question under Section 1
   concerning the amendment's applicability, or Section 2 's succession prohibition. 5
   consanguinity or affinity, shall likewise be ineligible. No person appointed under Section
   I shall be eligible for appointment or election to succeed himself.
   § 3. Violation of amendment- Compensation withheld.
   No person holding office contrary to this amendment shall be paid any compensation for
   his services. Any warrant, voucher or evidence of indebtedness issued in payment for
   such services shall be void.
   § 4. Duration of term of appointee - Election to fill vacancy.
   The appointee shall serve during the entire unexpired term in the office in which the
   vacancy occurs if such office would in regular course be filled at the next General
   Election if no vacancy had occurred. If such office would not in regular course be filled
   at such next general election the vacancy shall be filled as follows: At the next General
   Election, if the vacancy occurs four months or more prior thereto, and at the second
   General Election after the vacancy occurs if the vacancy occurs less than four months
   before the next General Election after it occurs. The person so elected shall take office on
   the 1st day of January following his election.
   § 5. Election to fill - Placing names on ballots.
   Only the names of candidates for office nominated by an organized political party at a
   convention of delegates, or by a majority of all the votes cast for candidates for the office
   in a primary election, or by petition of electors as provided by law, shall be placed on the
   ballots in any election.
   Ark. Const. amend. 29 (Rep!. 2004).
   4 Accord Newton County Republican Central Committee v. Clark, 228 Ark. 965, 974, 311 S.W.2d 774
   ( 1958) (observing that "[t]he words [of Ark. Const. amend. 29, § 5) are separated by the disjunctive 'or', so
   that a candidate selected by any one of the three methods - convention, primary, or petition - could have
   his name placed on the ballot").
   5 E.g., Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002); Oliver v. Simmons, 318 Ark. 402, 885
   S. W.2d 859 (1994); Johnson Co. Election Comm 'rs v. Holman, 280 Ark. 128, 655 S.W.2d 408 ( 1983); The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 6
   By contrast, very few involve Section 5 and none squarely addresses the issue at
   hand regarding the precise scope of this section, more specifically, whether it
   prohibits a top-two primary system.
   In addressing this matter, we must start by recognizing that our state constitution is
   not a grant or enumeration of powers, but is only a limitation of power. 6 Its
   provisions list what government cannot do. The legislature may rightfully
   exercise its powers subject only to the express or implied limitations and
   restrictions of the Constitution of the United States and of the State of Arkansas.7
   Additionally, in matters relating to constitutional amendments, the primary goal is
   to give effect to the intent of the people. 8 Constitutional and statutory provisions
   are considered in the same manner. 9 The intent of the people is ordinarily
   determined by reference to the plain meaning of the words used.10 When the
   language of a constitutional provision is plain and unambiguous, each word must
   be given its obvious and common meaning. 11 The court will read the language
   under discussion in light of its context.12 Neither rules of construction nor rules of
   interpretation may be used to defeat the clear and certain meaning of a
   constitutional provision. 13 When a constitutional provision is ambiguous,
   however, such that interpretation is necessary, the Arkansas Supreme Court has
   stated that it may be helpful to determine what changes the provision was intended
   Hawkins v. Stover, 274 Ark. 125, 622 S.W.2d 667 (1981); McCraw v. Pate, 254 Ark. 357, 494 S.W.2d 94
   (1973); Gloverv. Henry, 231Ark. 111, 328 S.W.2d 382 (1959).
   6 Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979); Jones v. Mears, 256 Ark. 825, 510 S.W.2d 857
   (1974); State v. Green and Rock, 206 Ark. 361, 175 S.W.2d 575 (1943).
   7 Black v. Cockrill, 239 Ark. 367, 389 S. W.2d 881 (1965).
   8 Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968); Bailey v. Abington, 201 Ark. 1072, 148
   S.W.2d 176 (1941).
   9 Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S. W.2d 391 (1985).
   10 Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S. W.2d 576 (1995).
   11 Gatzke v. Weiss, 375 Ark. 207, 210, 289 S.W.3d 455 (2008); Brewer, supra n. 5, at 580-81.
   12 See Gatzke, supra; Glover, supra n. 5; Drennen v. Bennett, 230 Ark. 330, 322 S.W.2d 585 (1959).
   13 Bayer v. Cropscience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822 (2011). The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 7
   to make. 14 The court has stated further that "in order to determine the meaning
   and the extent of coverage of a constitutional amendment, [a court] may look to
   the history of the times and the condition existing at the time of the adoption of the
   amendment in order to ascertain the mischief to be remedied and the remedy
   adopted." 15
   Applying these principles, it must first be noted that Section 5 plainly limits the
   legislature's power when it provides that "[o)nly the names of candidates"
   nominated by one of three methods "shall be placed on the ballot in any election."
   At issue is the precise scope of that limitation. As an initial matter, the words "any
   election," viewed only in the context of Section 5, seem unlimited in scope. But
   Section 5 cannot properly be viewed in isolation. Rather, it must be considered in
   context with the entire amendment. Viewed in that light, the reference to "any
   election" may be seen as more limited. Amendment 29 comprises five sections.
   See n. 2, supra. The first four have to do with the filling of vacancies in certain
   offices. In particular, Section 4 deals with the term lengths of appointees and
   outlines a procedure for filling the office at a general election, depending upon
   whether the office would in regular course be filled at the next general election. In
   light of Section 4 and the other sections having to do with filling vacancies, the
   words "any election" in Section 5 might be taken to mean an election under
   Section 4 to fill a vacancy.
   On the other hand, Section 4 is primarily concerned with the duration of an
   appointee's service, not the naming of candidates on the ballot in an election. This
   observation, coupled with the breadth of the words "any election," makes it
   difficult to conclude that these words are necessarily limited or particular to a
   general election held under Section 4. Indeed, the Arkansas Supreme Court
   appears to have presumed in its few opinions involving Section 5 that this section
   of Amendment 29 is not limited to elections to fill vacancies.16 Because the court
   has never squarely faced the question, however, we cannot assume these cases are
   controlling.
   14 Gatzke, supra. See also State v. Oldner, 361 Ark. 316, 79 S.W.3d 831 (2005); Bryant v. English, 311
   Ark. 187; 843 S. W.2d 308 (1992); Glover, supra n. 5.
   15 Bryant, supra n. 14, at 193 (citation omitted); see also Brewer, supra n. 5.
   16 See lewis v. West, 318 Ark. 334, 885 S.W.2d 663 (1994) (refe1Ting to Section 5 in the context of a
   gubernatorial election dispute); Clark, supra n. 4 (mandamus action involving election to the House of
   Representatives). The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 8
   In my opinion, Section S's reference to "any election" presents some ambiguity
   with respect to the precise elections contemplated. We must therefore resort to
   rules of construction to determine the people's intent. One possible source for
   resolving the ambiguity is Section 5 's heading, which states: "Elections to fill -
   placing names on ballots." This certainly suggests Section 5 only applies to the
   filling of vacancies. It appears, however, that this heading was added to the
   codification of Amendment 29, as it was not included in the amendment's original
   text. 17 Because the heading is not part of Amendment 29 as adopted by the
   people, a court faced with the question might say it cannot be relied upon in
   determining the people's intent.18
   In any event, even if some significance attaches to the heading, 19 I believe a court
   would be compelled to look beyond the heading and undertake an assessment of
   Amendment 29's history and conditions existing at the time of its adoption to
   determine what changes were intended. Thankfully, we have the benefit of an
   extensive historical analysis of the amendment. A 1944 Arkansas Historical
   Quarterly article details events leading up to Arkansas's 1938 adoption of
   Amendment 29 and its majority-vote runoff system.20 The author of this article,
   Mr. Henry Alexander, explains that this "double primary" system was of a
   "general pattern" among a number of states at the time. 21 He relates that in his
   January 1933 inaugural address, Governor Futrell stated: "Nominations for public
   office should be made by a majority of the qualified electors voting at an election.
   By no means should an insubstantial minority be allowed to make a
   nomination. "22 Agitation for a run-off primary system was reportedly stimulated
   by the Democratic primaries of 193 2, where winners of several races failed to poll
   17 See Arkansas Democrat, October 9, 1938.
   18 See, e.g., State ex rel. Palagi v. Regan, 126 P.2d 818 (Mont. 1942) (stating that a particular act's title
   could not help in determining the people's intent, where the title was not in the act as adopted by the people
   but was instead added by the codifier); State v. T.A. W., 186 P.3d 1076 (Wash. App. 2008) (same).
   19 See U.S. v. Zuger, 602 F. Supp. 889 (D. Conn. 1984) (observing that a title of the U.S. Code is only
   prima facie or rebuttable evidence of the law where the title, as such, has not been enacted into positive
   law).
   20 Henry M. Alexander, "The Double Primary," The Arkansas Historical Quarterly (Vol. III, Autumn
   1944). .
   21 Id. at 220.
   22 Id. at 228. The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 9
   a majority.23 A double primary law was enacted during the 1933 legislative
   session in response to the numerous minority nominations in the 1932 primaries,
   and previous years. 24 That act was repealed during the 193 5 session, prompting a
   movement to embody the majority-vote runoff system into the Arkansas
   Constitution where it would be "beyond reach of legislative power."25
   Mr. Alexander further explains Amendment 28's background:
   Sponsors of the proposed amendment were moved, primarily, by
   hostility to committee nominations and special elections and,
   secondarily, by hostility to plurality nominations. The latter,
   however, should not be minimized. The section of Amendment 29
   requiring the double primary was included in earliest drafts of the
   proposal. Suggestions, at one time considered, to incorporate
   provision for a double primary in a separate amendment were
   discarded. Writing on August 31, 193 7, Abe Collins stated, with
   reference to the section of the proposed amendment requiring the
   double primary, "I think it is the most important part of it (draft of
   Amendment 29)." Opposition to minority nominations was
   strengthened in some quarters when, in the primary of August 11,
   1936, Carl E. Bailey won the gubernatorial nomination in a five-man
   race by a plurality of less than thirty-two percent of the votes cast.
   Amendment 29 was laboriously drafted during a period of almost a
   year by Abe Collins, Judge B .E. Isbell of DeQueen, and Doctor
   Robert A. Leflar of Fayetteville. C.T. Coleman of Little Rock and
   Doctor J.S. Waterman of Fayetteville cooperated.26
   It is abundantly clear from this historical treatise that the drafters of Amendment
   29 did not intend for Section 5 's reference to "any election" to only mean elections
   to fill vacancies. Nor can such intent reasonably be ascribed to the voters, given
   23 Id. at 229.
   24 Id. at 228-29 (discussing Act 38of1933).
   25 Id. at 230.
   26 Id. at 234-35. The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 10
   the ballot title used at the election at which Amendment 29 was adopted.27
   Although the "short title" - "Filling Vacancies in Public Office" - was "definitely
   incomplete,"28 it was clear from the ballot title that the measure extended beyond
   the matter of filling vacancies.29
   If the court is persuaded that the drafters of Amendment 29 and the voters who
   approved it knew that it addressed candidate selection outside the vacancy context,
   then the proponents of a top-two primary system will face the argument that such a
   system is contrary to Section S's majority-vote requirement in primary elections.
   The language of Section 5 appears· on its face to foreclose the legislature from
   authorizing any nomination election that does not have a majority vote
   requirement associated with it.
   One possible response is that this requirement only applies to political party
   primaries.30 The history plainly reveals that when nominees are selected at a
   primary by a political party, such nominations must, by provision of Amendment
   29, be made by majority vote.31 But is the majority-vote requirement possibly
   limited to party nominations? One might argue "yes" because this aspect of
   Amendment 29 was in response to plurality elections that occur in a one-party
   27
   In cases of ambiguity, it is proper to refer to the title of a constitutional amendment as an aid to its
   interpretation. Miller v. Leathers, 311 Ark. 372, 843 S.W.2d 850 (1992); McCoy v. Story, 243 Ark. I, 417
   S.W.2d 954 (1967).
   28 Alexander, supra n. 20, at 236 (citing Arkansas Gazette, October 15, 1938).
   29 The ballot title read: "An amendment to the constitution abolishing committee nominations, special
   elections and minority rule; providing the method for and regulating the filling of vacancies in office and
   the placing of the names of candidates for office on the ballots in elections, and for other purposes"
   Arkansas Democrat, October 9, 1938.
   30 I have also considered whether Section 5 might only apply to party nominations, that is, the procedure for
   placing party candidates on the general election ballot. In Newton County Republican Central Committee
   v. Clark, supra n. 4, the court rejected the claim that Section 5 mandates a convention of delegates. In so
   ruling, the court refeJTed to the "three methods" of candidate selection under Section 5 and stated that the
   parties have no vested right "to any one of the methods mentioned .... " 228 Ark. at 974. One might read
   into this very loose language the suggestion that Section 5 is limited to how party candidates get on the
   ballot. But such a reading cannot reasonably be squared with the "petition of electors" language. To the
   contrary, this language is strong evidence that the entirety of Section 5 is not concerned with political
   parties. And of course, the court in that case was not addressing the precise scope of Section 5, but was
   only addressing the argument that a convention was mandatory. The Clark decision is, in my opinion,
   therefore sui generis (restricted to its own facts).
   31 Alexander, supra n. 20, at 245. The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 11
   state (where the dominant party's nominee fails to poll a majority in the primary
   and nomination is tantamount to winning the election).32 The ballot title's
   reference to "minority rule" might bolster that response. 33 In a top-two primary,
   there is no possibility that anyone will, in effect, be elected by virtue of receiving
   less than a majority vote in the primary. Assuming, therefore, that the "top-two"
   primary is not a party primary, it might be contended that such a primary falls
   outside the mandate of majority nominations.34
   While the foregoing argument may find some support in the constitutional history,
   the contrary argument based on Section S's express language is substantial. As
   written, Section S requires that any primary system assures nomination by
   majority. This plain reading is also consistent with the impetus for Amendment
   29, as the amendment clearly was a response to dissatisfaction with plurality
   nominations. The top-two primary would plainly authorize nomination by
   plurality.
   While it is difficult to definitively predict a judicial outcome in the absence of
   direct legal precedent on the scope of Section 5, I must conclude that a top-two
   primary system would be highly suspect as conflicting with Amendment 29,
   regardless of whether it was structured as a nonpartisan primary. Accordingly, it
   is unnecessary to address the various alternatives posed by Question 2 through 5.
   Question 6 - May the state require the political parties to nominate candidates
   for the general election by convention in which the parties could nominate as
   many candidates as they desire for a position? [Emphasis original.]
   In addressing this and your remaining questions, I must first note that my
   responses must necessarily be couched in general terms, in recognition of the fact
   32 See id. at 229-32.
   33 Seen. 29, supra (text of ballot title). See also Whitfield v. Democratic Party of State of Arkansas, 686 F.
   Supp. 1365, 1371 (E.D. Ark. 1988), aff'd on rehearing, 902 F.2d 15 (8th Cir. 1990) (en bane) (rejecting a
   Voting Rights Act challenge to Amendment 29 after reviewing what motivated the adoption of Amendment
   29 and noting that "the perceived perversion of democratic principles (where plurality elections were
   permitted) was the overwhelming motivating factor").
   34 l note in this regard that with the exception of your fifth question, each alternative posed involves the
   parties fielding candidates - suggesting that they might be viewed as party primaries and thus outside the
   scope of any potential argument in favor of a nonpartisan top-two primary. The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 12
   that the validity of any particular election scheme will likely depend upon the
   combination of its features, and not one feature considered in isolation.
   With this caveat, it is my opinion that the answer to your sixth question is in all
   likelihood "yes," as a general matter, given that nomination by political party
   convention is one of the three nomination methods identified under Section 5 of
   Amendment 29. The Arkansas Supreme Court has held, moreover, that "[u]nder
   . [Amendment 29], the Legislature [is] free to allow either convention action, or
   primary action, or petition of electors. "35
   Question 7 -Alternatively, may the state require the political parties to nominate
   for the general election any candidate who pays a fee or files a petition?
   [Emphasis original].
   Unlike the alternative at issue in Question 6, this alternative would appear, based
   on this limited description, to severely burden the parties' associational rights.
   The United States Supreme Court in Washington State Grange, supra n. 1,
   identified "the choice of a party representative" as [t]he essence of nomination"36
   and noted that it has "emphasized the importance of the nomination process as 'the
   crucial juncture at which the appeal to common principles may be translated into
   concerted action, and hence to political power in the community. "'37 The Court
   further noted:
   We observed [in California Democratic Party, 530 U.S. at 575) that
   a party's right to exclude is central to its freedom of association, and
   is never 'more important than in the process of selecting its
   nominee.' That the parties retained the right to endorse their
   preferred candidates did not render the burden any less severe, as
   35 Newton County Republican Central Committee v. Clark, supra n. 4, at 974. See also Greenville Cty.
   Republican Party v. South Carolina, 824 F. Supp. 655, n. 7 (D.S.C. 2011) ("The state is not required to
   offer alternative nomination methods but may actually mandate that a single nomination method be used by
   all candidates and political parties[,]" citing Am. Party of Texas v. White, 415 U.S. 767, 781-82 (1974)).
   See also Washington State Grange, supra n. 1, at n. 7 (2008) ("The First Amendment does not give
   political parties a right to have their nominees designated as such on the ballot[,]" citing Timmons v. Twin
   Cities Area New Party, 520 U.S. 351 (1997)).
   36 Washington State Grange, 552 U.S. at 453.
   37 Id. at 445 (quoting California Democratic Party, 530 U.S. at 575, [quoting Tashjian v. Republican Party
   of Conn., 479 U.S. 208, 216)]). The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 13
   '[t]here is simply no substitute for a party's selecting its own
   candidates.' 38
   A nomination method that severely burdens political parties' associational rights is
   subject to strict scrutiny and will be upheld only if it is "narrowly tailored to serve
   a compelling state interest."39 I believe a requirement of the sort identified in your
   question would be highly suspect and unlikely to pass constitutional muster under
   this test.
   Question 8 - Alternatively, may the state require the political parties to have a
   convention and nominate for the general election any candidate who pays a fee,
   if required by the party, signs a party pledge, if required by the party, and
   submits an affidavit of eligibility to party officials? [Emphasis original.]
   This alternative seems contrary to the general concept of a political party
   "convention of delegates" method of nomination. An organized political party's
   "convention of delegates" is of course included among the nomination methods
   permitted by Amendment 29.40 As commonly understood in the political context,
   a "convention" is "an assembly of delegates chosen by a political party ... to
   nominate candidates for an approaching election."41 This common meaning will
   ordinarily be controlling.42 The alternative you posit would appear to bypass the
   convention process altogether, causing me to suspect that it would fail to
   withstand scrutiny under Amendment 29 to the Arkansas Constitution.43
   38 Id. (quoting California Democratic Party, 530 U.S. at 581).
   39 Clingman v. Beaver, 544 U.S. 581, 586 (2005).
   40 Ark. Const. amend. 29, § 5.
   41 Black's Law Dictionary 299 (5th ed. 1979). See also Jamie Gregorian, How Primary Election Laws
   Adversely Affect the Associational Rights of Political Parties in the Commonwealth of Virginia and How To
   Fix Them, 18 Geo. Mason U. Civ. Rts. L.J. 135, 140 (2007) (noting that "a convention allows the leaders
   of a party to determine who participates in the selection of a candidate .... ").
   42 See Brewer, supra n. 5, at 583 (noting that the words of the constitution should ordinarily be given their
   obvious and natural meaning).
   43 This alternative would also implicate the political parties' associational rights under the U.S. Constitution
   if it regulated some aspect of the parties' internal governance. See generally Eu v. San Francisco
   Democratic Committee, 489 U.S. 214 (1989); Democratic Party of United States v. Wisconsin, 450 U.S.
   107 (1981); Cousins v. Wigoda, 419 U.S. 477 (1975). The decisions in this area have not invalidated any
   part of a state law except on an "as applied" basis, in cases of direct conflicts with certain kinds of party or
   convention rules. Indeterminate questions of fact are therefore necessarily involved in any such analysis. The Honorable Jake Files
   State Senator
   Opinion No. 2013-132
   Page 14
   Question 9 - May the state allow candidates to file for the general election by
   paying a fee or filing a petition with the state or county and have a party
   affiliation of their choosing shown on the ballot without filing with a party and
   without the consent of the party? [Emphasis original./
   I must question whether paying a fee would, standing alone, generally be a valid
   means of ballot access, given that this is not one of the three nomination methods
   identified in Amendment 29 to the Arkansas Constitution. With regard to a
   "petition," a petition of electors is a candidate selection method permitted by
   Amendment 29. As far as party affiliation is concerned, it may be concluded as a
   general matter that the absence of any party filing or party consent will serve to
   avoid a claim that the scheme, on its face, violates a party's associational rights.44
   But the law's implementation will ultimately be determinative of the First
   Amendment issue of association.45
   Deputy Attorney General Elisabeth A. Walker prepared the foregoing opm10n,
   which I hereby approve.
   DUSTIN McDAN
   Attorney General
   DM:EAW/cyh
   44 See Washington State Grange, supra n. 1, at 453 (rejecting a facial challenge to Washington's top-two
   nonpartisan primary scheme because "[t]he law never refers to the candidates as nominees of any party, nor
   does it treat them as such.")
   45 See id. at 455 ("Of course, it is possible that voters will misinterpret the candidate's party-preference
   designations as reflecting the endorsement by the parties. But these cases involve a facial challenge, and
   we cannot strike down 1-872 on its face based on the mere possibility of voter confusion."); Wash. State
   Republican Party v. Wash. State Grange, 676 F.3d 784 (9th Cir. 2012) (concluding, based on the design of
   the ballot and the absence of evidence of actual voter confusion, that the State of Washington's top-two
   primary system did not violate the parties' First Amendment associational rights).