Why did Arkansas's Attorney General reject a proposed ballot measure to repeal all state cannabis laws?

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

Lieutenant Colonel Marjorie LeClair submitted a sixth version of a proposed constitutional amendment, popularly titled "Ban Prohibition of Cannabis," that would repeal all Arkansas laws restricting the production, distribution, and sale of cannabis. The Attorney General had already rejected five earlier versions of similar proposals for ambiguity.

The Attorney General rejected this version too. The core problem was the measure's actual text: rather than containing operative language that would itself repeal existing cannabis laws (something like "all laws prohibiting X are hereby repealed"), the submitted text only described, in a hedged and conditional way, what repealing those laws "would" do, never actually declaring the repeal. Because a constitutional amendment's text is what makes legal change happen, while the ballot title only summarizes that change, the opinion found it couldn't write an accurate ballot title summarizing a change the text never actually made. The opinion also flagged the measure's brief, cryptic statement that "this amendment does not change any federal laws," finding it too vague to explain in a ballot title what the sponsor likely meant, that federal cannabis law would remain in force regardless of the state repeal under the Supremacy Clause, without itself accomplishing anything as a matter of law.

Background and analysis (as of 2013)

The opinion reapplied the same ballot-title certification framework it uses across all Arkansas initiative submissions: it doesn't evaluate a measure's merits or policy wisdom, only whether the popular name and ballot title honestly, intelligibly, and impartially summarize what the measure's text actually does, and it can reject a submission outright when the measure's own text is too ambiguous to summarize accurately, rather than substitute better language.

The opinion drew a sharp distinction between a measure's text, which functions to actually change the law if adopted, and its ballot title, which merely summarizes that change for voters. Reviewing the submitted text, which stated that "repealing all Arkansas laws pertaining to cannabis... would remove criminality from producing, processing, distributing, selling and using cannabis," the opinion found this was descriptive rather than operative language: it announced a hypothetical result without actually repealing anything or declaring any change in the law. The opinion had flagged this identical defect in the sponsor's immediately preceding submission and found it persisted unchanged. On the federal-law reference, the opinion reasoned that under the Supremacy Clause, federal drug law would remain in force regardless of what a state constitutional amendment says, so a state constitutional acknowledgment of that fact would accomplish nothing legally, yet the fact of preemption still needed to be communicated to voters to clarify the amendment's real-world impact, something the submitted language did too obliquely to summarize.

Citations and references

Statutes (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 the office be able to fairly summarize a measure before certifying
• A.C.A. § 7-9-107(c), governing amendment and resubmission of rejected measures

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 absent clear illegality
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463 (1984), the purpose of certification is an honest, intelligible, fair summary of the proposal
• 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), the popular name must avoid misleading or partisan coloring
• May v. Daniels, 359 Ark. 100 (2004), the popular name and ballot title are read together
• Becker v. Riviere, 270 Ark. 219 (1980), the ballot title must give a fair understanding of the issues
• Bailey v. McCuen, 318 Ark. 277 (1994), essential facts must be disclosed; imperfection is tolerated but misleading tendencies are not
• 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 of the change
• Roberts v. Priest, 341 Ark. 813 (2000), a measure's text creating internal inconsistency with its ballot title defeats 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. 2013-140

November 18, 2013

Lieutenant Colonel Marjorie LeClair, USA (Retired)
3362 Burnt Ridge Road
Shirley, Arkansas 72153-8329

Dear Lt. Col. LeClair:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2013), of the following popular name and ballot title for a proposed constitutional amendment. You have previously submitted similar measures, which this office rejected due to ambiguities in the texts of the proposed measures. See Op. Att'y Gen. Nos. 2013-131, 2013-117, 2013-109, 2013-094 and 2013-061. You have made changes in the text of your proposal since your last submission and have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

BAN PROHIBITION OF CANNABIS

Ballot Title

Amend the Constitution of Arkansas to repeal all laws pertaining to production, distribution and sale of cannabis and products derived from the cannabis plant. The General Assembly shall pass no law prohibiting or limiting the production, distribution or sale of cannabis or derivatives thereof. This amendment does not change any federal laws that may exist regarding the cannabis plant.

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

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/

Lt. Col. Marjorie LeClair, USA (Ret.)
Opinion No. 2013-140
Page 2

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.1 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

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).

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

Lt. Col. Marjorie LeClair, USA (Ret.)
Opinion No. 2013-140
Page 3

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

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

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).

Lt. Col. Marjorie LeClair, USA (Ret.)
Opinion No. 2013-140
Page 4

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.

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 must reject your proposed popular name and ballot title due to ambiguities in the text of your proposed measure. A number of additions or changes to your ballot title are, in my view, necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

The text of your measure provides in its entirety:

Repealing all Arkansas laws pertaining to cannabis and making no new laws would remove criminality [sic] from producing, processing, distributing, selling and using cannabis. By federal law, any activities without a permit that involve cannabis are illegal.

Taxation of cannabis and its derivatives would be in accordance with the Arkansas Gross Receipts Tax Laws of 1941 and Constitutional Tax Laws.

The legislature has the responsibility of categorizing products for tax exemptions or tax purposes and would classify cannabis products

into their respective tax categories.

I must reject this submission for the following reasons:

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

14 Id.

Lt. Col. Marjorie LeClair, USA (Ret.)
Opinion No. 2013-140

Page 5

1.

In rejecting your more recent prior submission, I noted that "the text of your measure is ambiguous in that it appears merely to assume, without ever declaring outright, that current laws prohibiting the sale of cannabis are repealed."15 The same objection applies to your current submission. I echoed in my previous opinion what I had pointed out on various other occasions:

The text of a proposed constitutional amendment, if adopted, becomes a part of the Arkansas Constitution. Ideally it consists of clear, complete sentences that actively dictate the legal effects desired by the sponsors. A ballot title, on the other hand, is an impartial, concise summary of the proposed amendment. As a consequence, it usually consists of a series of short descriptive phrases or clauses, which refer to, summarize and delineate the various important provisions of the amendment. The format and wording of these summary phrases or clauses, however, do not ordinarily direct action or actively bring about changes in the law.16

The text of a measure, as I stressed in these declarations, makes the change in the law or, as my predecessor phrased it, it "dictates" that change. By contrast, the ballot title merely summarizes the nature and effects of the change thus dictated.

Applying these principles to your current submission, it is again apparent that your text is inadequate in that it fails in itself to effect any change in law. Rather, it merely announces what certain changes in the law "would" do, never actually declaring that approving the measure would in itself mandate or effect the described changes in law.

15 See Op. Att'y Gen. No. 2013-131.

16 Ops. Att'y Gen. 2013-089 and 2007-083 (emphases added).

Lt. Col. Marjorie LeClair, USA (Ret.)
Opinion No. 2013-140

Page 6

Your submission, in short, again contains no operative language of the sort required in the text of a measure, instead merely reciting various results that would purportedly be realized if certain changes in law were made. I am consequently unable to summarize in the ballot title what would be the practical effect of adopting your measure.

2. The text of your measure declares: "By federal law, any

activities without a permit that involve cannabis are illegal." Even taking this declaration as true, its significance within the context of your measure is unclear. In your ballot title, you apparently attempt to summarize the significance of this declaration as follows: "This amendment does not change any federal laws that may exist regarding the cannabis plant." Neither of these logically distinct declarations does more than hint at what I suspect is your intended point, namely, that preemptive federal law, which largely tracks current state law restrictions on cannabis production and use, will remain in effect, unless altered by Congress, irrespective of whether your measure striking state laws is adopted. The formulation set forth in your text, which I must consider in isolation in determining what your measure would achieve, is consequently cryptic to a point that precludes me from summarizing its import in a ballot title.

It is further unclear why your possibly intended point, even if clearly expressed, would warrant inclusion in the text of an amendment to the Arkansas Constitution. Regardless of whether a state constitution acknowledges the priority of preemptive federal law, the federal Supremacy Clause ensures that any preemptive federal law will apply irrespective of state law purporting to allow the prohibited conduct. Acknowledging as much by amendment to a state constitution would thus accomplish nothing. To be sure, the fact of the preemption needs to be communicated to the voter in a ballot title in order to clarify the legal effect, or, rather, the substantial lack thereof, that would attend any adoption of your measure. The text of a measure, however, functions solely to make or to alter existing law. Given that your oblique textual reference to federal law

Lt. Col. Marjorie LeClair, USA (Ret.)
Opinion No. 2013-140
Page 7

would appear to make no substantive change to Arkansas law, it is impossible for me to summarize this provision in a ballot title.

I cannot begin to certify a ballot title for your proposed amendment in the face of the ambiguities noted above. You must remedy these confusing and ambiguous points before I can perform my statutory duty. As I have previously noted, this office lacks the resources to repeatedly review submissions whose shortcomings have already been identified. As I have done before, I can only urge you to consult with counsel and a competent editor to assist you in revising your submission should you elect to resubmit.

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, stating my reasons therefor, and to instruct you to "redesign" the proposed measure and ballot title.17 You may, after clarification of 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,

DUSTIN McDANIEL
Attorney General

DM/cyh

Enclosure

17 See A.C.A. § 7-9-107(c).

Cheryl Hall

From: Gozarks gozarks@gmail.com

Sent: Sunday, November 03, 2013 6:03 PM

To: Cheryl Hall

Cc: Marjorie LeClair. NCA-LWV President

Subject: Request for approval of proposed Ballot Title for petition initiative.

Popular Name

BAN PROHIBITION OF CANNABIS

Ballot Title

Amend the Constitution of Arkansas to repeal all laws pertaining to production, distribution and sale of cannabis and products derived from the cannabis plant. The General Assembly shall pass no law prohibiting or limiting the production, distribution or sale of cannabis or derivatives thereof. This amendment does not change any federal laws that may exist regarding the cannabis plant.

Text

Repealing all Arkansas laws pertaining to cannabis and making no new laws would remove criminality from producing, processing, distributing, selling and using cannabis. By federal law, any activities without a permit that involve cannabis are illegal.

Taxation of cannabis and its derivatives would be in accordance with the Arkansas Gross Receipts Tax Laws of 1941 and Constitutional Tax Laws.

The legislature has the responsibility of categorizing products for tax exemption or tax purposes and would classify cannabis products into their respective tax categories.

Submitted: November 03, 2013

By: Marjorie LeClair, Lt. Colonel, U.S.A. (retired)

3362 Burnt Ridge Rd., Shirley, AR 72153-8329; 501-745-8727

To: Attorney General Dustin McDaniel, 323 Center Street, 2nd Floor, Little Rock, Arkansas Re: Request for approval of proposed Ballot Title for petition initiative.