Why did the Arkansas AG keep rejecting League of Women Voters cannabis ballot titles in 2013-2014?

Plain-English summary

Lt. Col. Marjorie LeClair, USA (Retired), president of the North Central Arkansas League of Women Voters Ballot Question Committee, submitted yet another revision of a constitutional amendment intended to legalize cannabis in Arkansas. AG Dustin McDaniel rejected it for the ninth time in a series of resubmissions:

• Op. Att'y Gen. Nos. 2013-061, 2013-094, 2013-109, 2013-117, 2013-131, 2013-140, 2013-153, 2013-157 (eight prior rejections of similar measures by LeClair's committee).

This was a parallel track to the Reed/Arkansans for Medical Cannabis line of ballot submissions (Op. Att'y Gen. Nos. 2014-014, 2014-022, and predecessors). Both ballot committees were trying to put cannabis on the 2014 Arkansas ballot, and both encountered serial rejection for textual ambiguities.

The 2014-004 version was titled "Ban Prohibition of Cannabis" and proposed to repeal Arkansas laws prohibiting the production, distribution, sale, and use of the cannabis plant and products derived from it. The AG's standard analysis applied: ballot titles must give voters a fair, intelligible understanding of the measure, and where the underlying text has ambiguities that prevent a fair summary, rejection is required.

This particular opinion is short and procedural, primarily incorporating the analytical framework from the prior eight opinions rather than re-laying out the entire ballot-title doctrine. The opinion adds itself to the run of ninth-time-still-not-clear submissions.

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. Arkansas voters subsequently approved medical marijuana via Issue 6 in 2016.

Common questions

Why does a ballot committee keep resubmitting the same measure?
Initiative law allows resubmission. The AG must review each new version and either certify it (allowing petitions to circulate) or reject it for textual issues. Sponsors who believe their measure should be on the ballot have an incentive to keep revising and resubmitting until they get a certification, or until a deadline forces them to stop.

How many rejections is too many?
There's no statutory cap on resubmissions. Each new version triggers a fresh AG review. The practical limit is the calendar: petition circulation requires substantial lead time before any election, and ongoing rejection means the measure isn't on the ballot in time.

What does it usually take to get a ballot title certified?
A textually clean measure that the AG can summarize accurately and impartially. Common pitfalls (from this opinion line): failing to state that the measure amends the constitution, ambiguous effective-date language, internal contradictions among sections, popular names that mislead about substance, and policy-call phrasing that the AG cannot translate into a fair ballot summary.

Is there an appeal of an AG rejection?
Ballot sponsors can file directly in the Arkansas Supreme Court seeking review of the AG's decision. The Court has occasionally reversed AG rejections, but courts give significant weight to the AG's textual analysis when it identifies genuine ambiguity.

Are these rejected texts public?
Yes. The opinions themselves describe the proposed text and the reasons for rejection, becoming part of the public record of Arkansas's initiative process.

Background and statutory framework

A.C.A. § 7-9-107 governs the AG's review of proposed initiative and referendum measures. The AG has a duty to certify or substitute a popular name and ballot title before petitions are circulated. The AG's authority to reject is limited to cases where the measure's ambiguity prevents a fair, intelligible ballot summary; the AG does not review the policy merits of the measure.

The Arkansas Supreme Court has developed a detailed body of ballot-title doctrine through cases including Bailey v. McCuen, Becker v. Riviere, and Christian Civic Action Committee v. McCuen (each cited extensively in the parallel cannabis opinions). The framework calls for the title to:

• Give voters a fair understanding of the measure.
• Disclose essential facts that would give voters serious ground for reflection.
• Be free from misleading tendency by amplification, omission, or fallacy.
• Convey an intelligible idea of the scope and significance of the proposed change.
• Be honest, impartial, and brief enough to fit within the five-minute voting-booth window.

When the measure is internally ambiguous, even a careful ballot title cannot satisfy these requirements, and rejection is the AG's only option.

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (ballot title certification)
• Op. Att'y Gen. Nos. 2013-061, 2013-094, 2013-109, 2013-117, 2013-131, 2013-140, 2013-153, 2013-157 (the prior eight rejections in this series)
• Related parallel cannabis line: Op. Att'y Gen. Nos. 2014-014, 2014-022, 2013-021, 2011-059, 2011-031

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. 2014-004

January 30, 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. 2013-157, 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 prohibiting
the 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.

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/

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 2

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the
popular name and ballot title of all proposed initiative and referendum acts or
amendments before the petitions are circulated for signature. The law provides that
the Attorney General may substitute and certify a more suitable and correct
popular name and ballot title, if he can do so, or if the proposed popular name and
ballot title are sufficiently misleading, may reject the entire petition. Neither
certification nor rejection of a popular name and ballot title reflects my view
of the merits of the proposal. This Office has been given no authority to
consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make
legal determinations concerning the merits of the act or amendment, or concerning
the likelihood that it will accomplish its stated objective. In addition, consistent
with Arkansas Supreme Court precedent, unless the measure is “clearly contrary to
law,”' this office will not require that a measure’s proponents acknowledge in the
ballot title any possible constitutional infirmities. As part of my review, however,
I may address constitutional concerns for consideration by the measure’s
proponents.

Consequently, this review has been limited primarily to a determination, pursuant
to the guidelines that have been set forth by the Arkansas Supreme Court,
discussed below, of whether the popular name and ballot title you have submitted
accurately and impartially summarize the provisions of your proposed amendment.

The purpose of my review and certification is to ensure that the popular
name and ballot title honestly, intelligibly, and fairly set forth the purpose of
the proposed amendment or act.’

The popular name is primarily a useful legislative device.’ It need not contain
detailed information or include exceptions that might be required of a ballot title,

' 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),

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

• Pafford v. Hall, 2\7 Ark. 734, 739, 233 S.W.2d 72, 75 (1950),

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 3

but it must not be misleading or give partisan coloring to the merit of the
proposal.’ The popular name is to be considered together with the ballot title in
determining the ballot title’s sufficiency.”

The ballot title must include an impartial summary of the proposed amendment or
act that will give the voter a fair understanding of the issues presented.° According
to the court, if information omitted from the ballot title is an “essential fact which
would give the voter serious ground for reflection, it must be disclosed.”’ At the
same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-
107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit
in voting booths when other voters are waiting in line.® The ballot title is not
required to be perfect, nor is it reasonable to expect the title to cover or anticipate
every possible legal argument the proposed measure might evoke.” The title,
however, must be free from any misleading tendency, whether by amplification,
omission, or fallacy; it must not be tinged with partisan coloring.'” The ballot title
must be honest and impartial,'! and it must convey an intelligible idea of the scope
and significance of a proposed change in the law.’

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).

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

° Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
” Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
8 Id. at 288, 884 S.W.2d at 944.

” Id, 293, 884 S,W.2d at 946-47.

'° Id. at 284, 884 S.W.2d at 942.

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

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

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
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.”'? The Court concluded that
“internal inconsistencies would inevitably lead to confusion in drafting a popular
name and ballot title and to confusion in the ballot title itself.”'* Where the effects
of a proposed measure on current law are unclear or ambiguous, it is impossible
for me to perform my statutory duty to the satisfaction of the Arkansas Supreme
Court without clarification of the ambiguities.

Having analyzed your proposed amendment, as well as your proposed popular
name and ballot title under the above precepts, it is my conclusion that I 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 |

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.

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

14 Id

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 5

Section 3

The Arkansas General Assembly shall provide for taxation and
administration of this amendment.

I must reject this submission because Section 3 is ambiguous in declaring that the
General Assembly “shall provide for taxation and administration of this
amendment.”

The general declaration that the legislature “shall provide for taxation . . . of this
amendment” is syntactically confusing because it obscures the fact that you
apparently intend to authorize taxation not of “this amendment,” but rather of
cannabis, cannabis products and various activities “pertaining to” cannabis. The
same confusion arises from your usage of the phrase “administration of this
amendment.” Without clarification of these ambiguities, I am unable to summarize
your measure in a ballot title.

Even if one reads the term “taxation” as standing in isolation — i.e., as unmodified
by the phrase “of this amendment” — your use of this term is unclear because it
fails to indicate what may be taxed and what, if any, restrictions on taxation will
apply. As written, you measure fails even to specify that the referenced power of
“taxation” refers to taxation of cannabis, its products and activities pertaining
thereto. Without clarification on this score, I am unable to summarize your
measure in a ballot title.

The scope of this provision is further obscured by Section 2, which categorically
forecloses the General Assembly from enacting laws restricting the described
activities. To the extent that taxation constitutes a form of restriction, the
authorization of taxation in Section 3 might be read as an unacknowledged
exception to the restriction on legislation set forth in Section 2. Without
clarification regarding the interrelationship between these two sections, I am
unable to summarize your measure in a ballot title.

Your measure is further ambiguous in that it is unclear what the term
“administration of this amendment” betokens. Presumably, this phrase does not

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 6

refer to the taxation of cannabis, since you distinguish between “administration”
and “taxation.” Aside from its ambiguous reference to “taxation,” your measure
contains no provision that would require the administration of anything. It would
in itself merely (1) repeal “all laws” pertaining to cannabis and (2) foreclose the
legislature from enacting future laws pertaining to cannabis. It is consequently
unclear what you mean by the term “administration.” Without clarification on this
score, I am unable to summarize your measure in a ballot title.

Finally, with respect to your use of the term “all laws” in Section | of your
measure, I must note that your current submission contains no indication other
than in your ballot title that the “laws” referenced are only “Arkansas laws.”
Although apparently not so intended, Section 1 of your measure might be read as
an impermissible and ineffectual effort to repeal not only Arkansas laws but also
federal laws relating to cannabis. Without resolution of this ambiguity, I am
unable to summarize your measure in a ballot title.

I cannot begin to certify a ballot title for your proposed amendment in the face of
the ambiguity noted above. You must remedy this confusing and ambiguous point
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

'S See A.C.A. § 7-9-107(c).

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 7

necessary. I will be pleased to perform my statutory duties in this regard in a
timely manner after resubmission.

Sincerely,

DUSTIN MCDANtt
Attorney General

DM/cyh

Enclosure

Cheryl Hall

From: [email protected]

Sent: Thursday, January 16, 2014 4:21 PM

To: Cheryl Hall

Subject: Resubmittal of Re: Marjorie LeClair, request for approval of proposed Ballot Title for

petition initiative.

Importance: High
Ms Hall:

Please find below a revised submittal for review based on the recent AG,s opinion # 2013-
157.

Thank you for your time in this matter.
Sincerely;

Marjorie LeClair, President NCA-LWV
3362 Burnt Ridge Rd., Shirley, AR 72153-8329; 501-745-8727

Ao(4-004

JAN 16 2014

ATTORN EY GENERAL
ARKANSAS

Popular Name

BAN PROHIBITION OF CANNABIS

Ballot Title

Amend the Constitution of Arkansas to repeal all laws prohibiting the
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.

Text

Section 1

All laws prohibiting 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

The Arkansas General Assembly shall provide for taxation and administration of this
amendment.