What does it take to get a proposed Arkansas constitutional amendment legalizing cannabis through the AG's ballot title certification?

Plain-English summary

Lt. Col. Marjorie LeClair (USA, Ret.), president of NCA-LWV, asked the AG to certify the popular name and ballot title for a proposed Arkansas constitutional amendment that would repeal all laws "pertaining to production, distribution, sale and use of the cannabis plant and products thereof," prevent the legislature from passing future cannabis prohibition or limitation, and direct that cannabis "shall be taxed in accordance with the Arkansas Gross Receipts Tax Laws of 1941."

This was LeClair's eighth submission of a similar cannabis amendment. The previous seven (Op. Nos. 2013-153, 2013-140, 2013-131, 2013-117, 2013-109, 2013-094, 2013-061) had also been rejected.

AG Dustin McDaniel rejected this one too, for the same fundamental defect he had flagged before: the proposal referenced "the Arkansas Gross Receipts Tax Laws of 1941," but no statute by that exact name exists. The actual statute is the "Arkansas Gross Receipts Act of 1941" (A.C.A. § 26-52-101). McDaniel had pointed this out in the previous rejection. The sponsor resubmitted without fixing it.

Beyond the name error, the AG flagged a deeper drafting ambiguity. If the measure tied cannabis taxation to a specific 1941 statute, did it freeze that statute (forbidding the legislature from amending the chapter as applied to cannabis), did it incorporate all post-1941 amendments, or did it leave the legislature free to amend in the future? Without clarification, the AG said he could not write a ballot title summarizing the proposal for voters.

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.

Common questions

Q: What is the Arkansas AG's role in approving citizen-initiated amendments?
A: Under A.C.A. § 7-9-107, the Attorney General must certify the popular name and ballot title for any proposed initiative or referendum before sponsors can circulate petitions. The AG can substitute a more suitable name and title, or reject the entire petition if the proposed title is too misleading.

Q: Does AG approval mean the amendment is a good idea?
A: No. The AG's review is procedural, not substantive. The AG said certification or rejection does not reflect his view of a proposal’s merits; his office had no authority to decide those merits.

Q: Why did the AG reject this cannabis amendment?
A: Two reasons. First, the text cited "the Arkansas Gross Receipts Tax Laws of 1941," but there is no statute with that exact name. The actual chapter is the "Arkansas Gross Receipts Act of 1941" (A.C.A. § 26-52-101). The AG had told the sponsor about this error in a previous rejection, and the sponsor did not fix it. Second, even granting the misnamed reference, the proposal was ambiguous about whether the legislature could amend the cited chapter in the future as it applies to cannabis.

Q: What does the AG mean by "the legislature's amending authority"?
A: The AG could not tell whether the measure would apply the tax chapter as it stood in 1941, include later amendments, or allow the legislature to change the chapter in the future. He asked the sponsor to make the intended effect clear.

Q: Could the sponsor resubmit after this rejection?
A: Yes. The AG instructed the sponsor to clarify the tax-language ambiguities and resubmit the measure, popular name, and ballot title. He cautioned that changes to the name or title might also be needed.

Q: What standard did the AG apply?
A: The AG said the popular name and ballot title must honestly, intelligibly, and fairly state the proposed amendment's purpose. He could not fairly summarize this proposal while its tax provision remained ambiguous.

Q: What was the proposed popular name?
A: "BAN PROHIBITION OF CANNABIS." The AG rejected both the popular name and ballot title and said changes to either might be needed after the tax-language ambiguities were resolved.

Background and statutory framework

Under A.C.A. § 7-9-107, the AG reviews a proposed measure's popular name and ballot title before petitions are circulated for signatures. His review asks whether they accurately and impartially summarize the proposal; it does not assess the proposal's merits.

The AG said his task was to determine whether the submitted popular name and ballot title honestly, intelligibly, and fairly conveyed the proposed amendment's purpose. Because the tax provision was ambiguous, he could not fairly summarize the measure for voters or substitute a suitable title.

Against this standard, the cannabis measure had two specific defects. The first was the citation error to "the Arkansas Gross Receipts Tax Laws of 1941." The actual statute is the "Arkansas Gross Receipts Act of 1941" (A.C.A. § 26-52-101). The AG had alerted the sponsor in Op. No. 2013-153 that the previous submission contained the same error. The AG called the failure to correct the reference unaccountable and said it still prevented a confident ballot-title summary.

The second defect was deeper. If the measure tied cannabis taxation to a statute identified by year of enactment, did it freeze that statute's 1941 contents, incorporate all amendments through the date of the constitutional amendment, or remain open to future legislative amendment of the chapter as applied to cannabis? The AG asked the sponsor to clarify whether the referenced chapter included its post-1941 amendments and whether the legislature could amend it in the future. Without clarity, the ballot title could not honestly tell voters what the amendment would do.

The opinion ended by instructing the sponsor to revise the measure and resubmit it. The AG also reminded her that his duty was to the electorate and that he could not advise her on the proposal's substance.

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. 2013-157
January 13, 2014

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

Dear Lieutenant Colonel 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. 2013-153, 2013-140, 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, sale and use of the cannabis plant and products thereof. The Arkansas Legislature shall make no laws prohibiting or limiting the production, distribution, sale and use of cannabis. Preemptive federal law will remain in effect unless altered by congress.

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.

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. 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.

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.

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. I cannot 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 these 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:

Section 1: All laws pertaining to the production, distribution, sale and use of cannabis and products derived from the cannabis plant are hereby repealed.

Section 2: The Arkansas Legislature shall pass no law prohibiting or limiting the production, distribution, sale and use of the cannabis plant and its derivatives.

Section 3: Cannabis and its derivatives shall be taxed in accordance with the Arkansas Gross Receipts Tax Laws of 1941.

Section 4: The Arkansas Legislature has the responsibility for categorizing products for tax purposes or tax exemption and shall classify cannabis and its products into their respective categories.

In Section 3 of your current submission, you identify "the Arkansas Gross Receipts Tax Laws of 1941" as controlling any taxation relating to cannabis. As I pointed out to you in my response to your most recent previous submission, however, the Arkansas Code contains no legislation entitled "the Arkansas Gross Receipts Tax Laws of 1941," and no act so designated has ever been enacted by the Arkansas Legislature. More specifically, I advised you that your prior submission, which contains a provision identical to the one here at issue, apparently "refers by the wrong name to the chapter of the Code known as the 'Arkansas Gross Receipts Act [not 'Laws'] of 1941.' See A.C.A. § 26-52-101 (Repl. 2008) (reciting the title of the pertinent Code chapter)."

Unaccountably, in resubmitting your proposal, you have ignored altogether my correction of your apparent error. As a consequence, your submission again contains a confusing reference whose scope remains unclear. A proposal that requires such speculation is insufficiently precise to allow of confident summation in a ballot title. Simply put, if you intend in your measure to tie the taxation of cannabis exclusively to a current chapter of the Code, you must do so precisely and without equivocation.

Moreover, if the taxation of cannabis would be controlled by legislation originally enacted in 1941, the measure must specify whether the legislature retains the authority to amend the chapter of the Code containing this legislation. Although the "Arkansas Gross Receipts Act of 1941" is currently designated as the title of an entire chapter of the Code, presumably including its amendments to date, your measure is unclear regarding (1) whether this chapter of the Code is indeed the legislation referenced; (2) whether all post-1941 amendments thereto currently codified will apply; and (3) whether the legislature will retain authority to amend the legislation as it deems appropriate. Without clarification on these points, I cannot summarize your measure 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.

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. 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