Why did the Arkansas Attorney General rewrite, rather than reject, the ballot title for a 2013 initiative to repeal the state's marriage amendment?

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.

Plain-English summary

Jack Michael Weir III, founder of the Arkansas Initiative for Marriage Equality, submitted a revised popular name ("The Arkansas Marriage Amendment") and ballot title for a citizen-initiated constitutional amendment that would repeal Arkansas's Amendment 83 (which limited marriage to opposite-sex couples), require county clerks to issue marriage licenses regardless of the sexes of the couple, and protect clergy and religious organizations from being compelled to perform or participate in any marriage ceremony. This was Weir's fourth submission after the office had rejected three earlier versions.

The Attorney General's office certified the measure, but only after substituting a more complete and accurate popular name ("The Arkansas Same-Sex Marriage Amendment") and ballot title. The opinion explained that under A.C.A. § 7-9-107, the office's role is limited to ensuring a proposed measure's popular name and ballot title honestly, intelligibly, and impartially summarize its actual legal effects, not to evaluate the measure's merits, constitutionality, or likelihood of success. Applying the Arkansas Supreme Court's ballot-title standards, the office found the submitted title needed revision to more completely capture the amendment's provisions (including that the Legislature would retain power to determine marriage capacity and related legal rights subject to the amendment), and certified the revised version so the proponents could begin gathering signatures.

Background and analysis (as of 2013)

Arkansas's initiative process, created by Constitutional Amendment 7, requires the Attorney General to certify the popular name and ballot title of a proposed constitutional amendment before its proponents may circulate petitions for signatures. Under A.C.A. § 7-9-107, the Attorney General may substitute a more suitable and correct popular name and ballot title if one can be crafted, or reject the petition entirely if the submitted title is so misleading it cannot be fixed. The opinion emphasized that certification or rejection reflects no view on a measure's merits, and that unless a measure is "clearly contrary to law," the office won't require proponents to flag possible constitutional problems in the ballot title itself, though it may separately note constitutional concerns for the proponents' own consideration.

Drawing on decades of Arkansas Supreme Court ballot-title case law, the opinion described the governing standards: the popular name is primarily a legislative shorthand device that must avoid partisan coloring, while the ballot title must give voters a fair, impartial, and intelligible understanding of the proposal's scope, must disclose any "essential fact" a reasonable voter would want to know, yet must also stay brief enough to be read within the five-minute voting-booth time limit set by A.C.A. § 7-5-522. The title need not be perfect or anticipate every legal argument the measure might provoke, but it must be free of any misleading tendency by amplification, omission, or fallacy. Applying these standards, the opinion found the originally submitted title needed to more fully capture the amendment's effects, including the Legislature's retained authority over marriage-related rights and obligations "subject to this amendment," and certified a revised popular name and ballot title reflecting that fuller picture. The opinion closed with a cautionary note that complex constitutional amendments are more vulnerable to a successful ballot-title legal challenge, and recommended the proponents consult private counsel to make sure the amendment's text actually accomplishes its stated purpose.

Citations and references

Statutes and constitutional provisions (as they stood in 2013):

• A.C.A. § 7-9-107, requiring Attorney General certification of a proposed measure's popular name and ballot title, with authority to substitute or reject
• A.C.A. § 7-9-107(b), the requirement that a ballot title be brief and concise
• A.C.A. § 7-9-108, requiring instructions to canvassers and signers to precede every petition
• A.C.A. § 7-5-522, the five-minute voting booth time limit informing the brevity requirement for ballot titles
• Ark. Const. Amend. 7, establishing the citizen initiative and referendum process
• Ark. Const. Amend. 83, the existing marriage amendment the proposed measure sought to repeal

Cases:

• Kurrus v. Priest, 342 Ark. 434 (2000); Donovan v. Priest, 326 Ark. 353 (1996); Plugge v. McCuen, 310 Ark. 654 (1992), the office need not flag constitutional infirmities in a ballot title unless the measure is clearly contrary to law
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463 (1984), the purpose of certification is to ensure the popular name and ballot title honestly, intelligibly, and fairly set forth the proposal's purpose
• Pafford v. Hall, 217 Ark. 734 (1950), the popular name is primarily a legislative device
• Chaney v. Bryant, 259 Ark. 294 (1976); Moore v. Hall, 229 Ark. 411 (1958), a popular name must not be misleading or carry partisan coloring
• May v. Daniels, 359 Ark. 100 (2004), the popular name is considered together with the ballot title
• Becker v. Riviere, 270 Ark. 219 (1980), the ballot title must give a fair understanding of the issues presented
• Bailey v. McCuen, 318 Ark. 277 (1994), essential facts must be disclosed; the title need not be perfect or anticipate every legal argument, but must be free from misleading tendency
• Becker v. McCuen, 303 Ark. 482 (1990), the ballot title must be honest and impartial
• Christian Civic Action Committee v. McCuen, 318 Ark. 241 (1994), the title must convey an intelligible idea of the scope and significance of the proposed change
• Roberts v. Priest, 341 Ark. 813 (2000), internal inconsistencies in the proposed measure's text can themselves defeat certification

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. 2013-135

November 7, 2013

Jack Michael Weir III, Founder
Arkansas Initiative for Marriage Equality
Post Office Box 13963

Maumelle, Arkansas 72113

Dear Mr. Weir:

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 for various reasons. See Op. Att'y Gen. Nos. 2013-121, 2013-112 and
2013-072. 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 recognize marriage
as a union between two people regardless of sex. No member of any
clergy or religious organization shall be obligated to provide
wedding ceremonies or participate in the solemnization of any
marriage. Refusal by clergy or religious organizations to participate
shall not create any civil claim. This proposed amendment would
result in the repeal of Amendment 83 of the Arkansas Constitution,
prevent county clerks from denying issuance of marriage licenses on

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/

Jack Michael Weir III, Founder
Arkansas Initiative for Marriage Equality
Opinion No. 2013-135

Page 2

the grounds of the sexes of the couple and provide protection to
religious organizations and clergy from any legal requirement to
participate in marriage ceremonies.

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,"1 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.2

1 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).

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

Jack Michael Weir III, Founder
Arkansas Initiative for Marriage Equality
Opinion No. 2013-135

Page 3

The popular name is primarily a useful legislative device.3 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.4 The popular name is to be considered together with the ballot title in
determining the ballot title's sufficiency.5

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.6 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."7 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.8 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.9 The title,
however, must be free from any misleading tendency, whether by amplification,
omission, or fallacy; it must not be tinged with partisan coloring.10 The ballot title
must be honest and impartial,11 and it must convey an intelligible idea of the scope
and significance of a proposed change in the law.12

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

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).

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

6 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).

7 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
8 Id. at 288, 884 S.W.2d at 944.

9 Id. 293, 884 S.W.2d at 946-47.

10 Id. at 284, 884 S.W.2d at 942.

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

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

Jack Michael Weir III, Founder
Arkansas Initiative for Marriage Equality
Opinion No. 2013-135

Page 4

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."13 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."14 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.

Applying the above precepts, it is my conclusion that a more suitable, complete,
and correct popular name and ballot title should be substituted for those proposed.
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:

Popular Name

The Arkansas Same-Sex Marriage Amendment
Ballot Title

An amendment to the Arkansas Constitution to define marriage as
the union between two people regardless of sex; providing that no
clergy member or religious organization shall be obligated to
perform wedding ceremonies or participate in the solemnization of
any marriage; providing that the refusal by a clergy member or
religious organizations to perform any marriage ceremony or
solemnization shall not create any civil claim; repealing Amendment
83 to the Arkansas Constitution; prohibiting county clerks from
refusing to issue marriage licenses based on the sexes of the couple;

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

14 Id.

Jack Michael Weir III, Founder
Arkansas Initiative for Marriage Equality
Opinion No. 2013-135

Page 5

and providing that the legislature retains the power, subject to this
amendment, to determine the capacity of persons to marry and the
legal rights, obligations, privileges, and immunities of marriage.

In my view, the purpose of your proposed measure is sufficiently stated in the
above revised ballot title to satisfy this office's mandate under A.C.A. § 7-9-107.
I believe a cautionary note is warranted, however, due to the significance of the
subject matter undertaken and the far-reaching effects of this amendment. You
should be aware that according to my experience there is a direct correlation
between the complexity of initiated constitutional amendments and their
susceptibility to a successful ballot title challenge. Any ambiguity in the text of a
measure could lead to a successful challenge. That is why I urge you, if you have
not already done so, to consult private counsel in order to be assured that the stated
purpose is accomplished by the text of your proposal.

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)
The Arkansas Marriage Amendment

(Ballot Title)

AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO RECOGNIZE MARRIAGE AS A UNION BETWEEN
TWO PEOPLE REGARDLESS OF SEX. NO MEMBER OF ANY CLERGY OR RELIGIOUS ORGANIZATION SHALL
BE OBLIGATED TO PROVIDE WEDDING CEREMONIES OR PARTICIPATE IN THE SOLEMNIZATION OF ANY
MARRIAGE. REFUSAL BY CLERGY OR RELIGIOUS ORGANIZATIONS TO PARTICIPATE SHALL NOT CREATE
ANY CIVIL CLAIM. THIS PROPOSED AMENDMENT WOULD RESULT IN THE REPEAL OF AMENDMENT 83 OF
THE ARKANSAS CONSTITUTION, PREVENT COUNTY CLERKS FROM DENYING ISSUANCE OF MARRIAGE
LICENSES ON THE GROUNDS OF THE SEXES OF THE COUPLE AND PROVIDE PROTECTION TO RELIGIOUS
ORGANIZATIONS AND CLERGY FROM ANY LEGAL REQUIREMENT TO PARTICIPATE IN MARRIAGE

CEREMONIES.

(Proposed Constitutional Amendment)

Section 1: Marriage defined.

Section 2: No interference with religious rights.

Section 3: County clerks' authority to issue marriage licenses.
Section 4: Capacity, rights, obligations, privileges, and immunities.

Section 5: Amendment 83 repealed.

Section 1: Marriage defined.

Marriage shall be defined as the union of two people, regardless of the sex of the individuals.

Section 2: No interference with religious rights.

No member of the clergy or a religious organization shall be obligated to perform any marriage
ceremony or solemnization and the refusal of a clergy member or a religious organization to do so shall

not create a civil claim.
Section 3: County clerks' authority to issue marriage licenses.

No county clerk shall deny the issuance of a marriage license on the basis of the sexes of the individuals

seeking the marriage license.

Section 4: 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.

Section 5: Amendment 83 repealed.

Amendment 83 to the Constitution of the state of Arkansas is hereby repealed.