Do Arkansas legislators' pre-2014 years of service count toward the new 16-year cap under Amendment 94?

Plain-English summary

Senator Jon Woods asked the Arkansas AG how the new term-limits language in Amendment 94 interacts with the older limits in Amendment 73. The 2014 amendment replaced the old three-House-terms and two-Senate-terms structure with a single sixteen-year cumulative cap. The question was whether that clock reset on November 5, 2014, the amendment's effective date, or whether years served before that date still counted.

AG Dustin McDaniel concluded that years served after January 1, 1993, count toward the new sixteen-year limit. Amendment 94 amended only Section 2 of Amendment 73, which dealt with how many years a legislator could serve. It did not touch Section 6, the clause from the original 1992 term-limits amendment that fixed January 1, 1993, as the starting line for any prospective application. The framers of Amendment 94 were presumed to know the U.S. Term Limits v. Hill holding that anchored Amendment 73 to that date, and they did not displace it. So when Amendment 94 "fits into" the existing constitutional text, it leaves the 1993 trigger date intact and sets a sixteen-year ceiling on service counted from then forward.

On the two subsidiary questions: two-year Senate terms produced by reapportionment, whether by the required post-redistricting election or by lot drawing, do not count. Neither do partial terms filled through Article 5, Section 6 special elections. Both exclusions appear in the plain text of new subsection (c)(4).

Currency note

This opinion was issued in 2015. 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.

In particular, Arkansas voters adopted Issue 3 in November 2020, which amended Amendment 73 again and lowered the cumulative cap to twelve years (with limited exceptions). Anyone calculating a current legislator's remaining eligibility should consult the 2020 amendment, not just this 2015 analysis.

Common questions

What does Amendment 94 actually say about term limits?
It rewrote Section 2 of Amendment 73. The new rule allowed up to sixteen years of legislative service, counted across both chambers, with the clock starting on January 1, 1993 (carried over from the original 1992 amendment).

If a representative served three terms before Amendment 94 passed, did those years count?
Yes, under this 2015 opinion. Service after January 1, 1993, counted toward the sixteen-year cumulative limit, even though the new cap technically took effect November 5, 2014.

Why didn't the November 5, 2014, effective date reset everyone's clock?
Because Amendment 94 only changed Section 2 of Amendment 73. Section 6, the prospective-application clause, was left alone. Constitutional amendments are read together as a whole, and an amendment only displaces what it clearly conflicts with. The AG found no conflict between the new effective date and the older 1993 trigger.

Do two-year Senate terms from reapportionment count?
No. Amendment 94 specifically excluded both kinds of two-year terms: those required by the post-reapportionment election (Ark. Const. art. 8, § 6) and those drawn by lot when the Senate splits itself into classes after redistricting. The opinion gave the example of a senator elected in 2010, reelected in 2012, who then drew a two-year term; neither short term would count.

Do partial terms from special elections count?
No. New subsection (c)(4) excluded partial legislative terms filled through Article 5, Section 6 special elections from the calculation.

Is this opinion still good law for figuring out who can run?
Not directly. Arkansas voters passed another term-limits amendment in 2020 that lowered the cap and changed several mechanics. For any specific eligibility question today, work from the current constitutional text, not from this 2015 opinion.

Background and statutory framework

Arkansas adopted its first legislative term-limits amendment, Amendment 73, by initiated measure in 1992. As originally written, it capped House service at three two-year terms and Senate service at two four-year terms, with the limits taking effect January 1, 1993, and applying prospectively to anyone seeking election after that date.

The Arkansas Supreme Court interpreted that prospective-application language in U.S. Term Limits v. Hill, 316 Ark. 251 (1994), holding that the amendment counted only service that began on or after January 1, 1993.

Amendment 94 (proposed as HJR 1009 in the 2013 session and ratified at the 2014 general election as Issue 3) restructured the limits as a single sixteen-year cumulative cap across both chambers, with the cap effective November 5, 2014. It also wrote in express exclusions for two-year Senate terms produced by reapportionment and for partial terms from special elections, plus a "complete the term" allowance for members who hit sixteen years mid-term.

Critically, Amendment 94 did not repeal or rewrite Section 6 of Amendment 73, the section that anchored the 1993 trigger date. The AG's analysis turned on the canon that constitutional amendments are read together as a whole and that an amendment only displaces existing provisions to the extent of an irreconcilable conflict. Because Amendment 94 did not touch Section 6, the AG concluded the 1993 starting date survived. The framers were presumed to know about Hill and to have legislated against it without overriding it.

Citations

• Ark. Const. amend. 73 (1992 term-limits amendment)
• Ark. Const. amend. 73, § 2 (years-of-service limits, as amended by Amendment 94)
• Ark. Const. amend. 73, § 6(a) (effective date and prospective-application clause)
• Ark. Const. amend. 94 (2014 ethics, transparency, and term-limits amendment)
• Ark. Const. amend. 94, § 3 (amending Amend. 73, § 2)
• Ark. Const. amend. 94, § 18 (effective date November 5, 2014)
• Ark. Const. art. 5, § 6 (special elections to fill vacancies)
• Ark. Const. art. 8, § 6 (Senate reapportionment after federal census)
• U.S. Term Limits v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994)
• Moore v. McCuen, 317 Ark. 105, 876 S.W.2d 237 (1994)
• Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964) (rules of constitutional construction)
• Parkin Printing & Stationary Co. v. Arkansas Printing and Lithographing Co., 234 Ark. 697, 354 S.W.2d 560 (1962) (amendment as part of whole document)

Source

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

Official summary

Q1) Do years served in the General Assembly prior to the passage of Amendment 94 count towards the cumulative limit of sixteen years now imposed under Amendment 73, sec. 2? Q2) Are two-year terms served as a result of an apportionment of the Senate included when calculating the total number of years served by a member of the General Assembly? Q3) Are partial legislative terms served as a result of a special election under art. 5, sec. 6 of the Arkansas Constitution included when calculating the total number of years served by a member of the General Assembly?

RESPONSE: Q1) Yes, as to years served after January 1, 1993. Amend. 94 only amended Section 2 of Amend. 73, which only addresses the number of years a member may serve, without regard to when years of service are counted. The framers of Amend. 94 are presumed to have acted with full knowledge of the existing provisions of Amend. 73, including the Arkansas Supreme Court's holding that Amend. 73 applies to periods of service commencing on or after January 1, 1993. When Amend. 94 "fits into" the existing constitution, therefore, the result is a constitutional term-limits amendment that sets a sixteen-year limit on service as of November 5, 2014, with years served after January 1, 1993, counted for limitation purposes. Accordingly, the answer to each question under the examples you have presented is "yes." Q2) No, pursuant to the plain language of Amend. 94. The exclusion of two-year Senate terms encompasses both terms that are cut short due to the election required after reapportionment and two-year terms that are drawn by lot following reapportionment. Q3) No, again pursuant to Amend. 94's plain language.

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDaniel

Opinion No. 2014-134

January 6, 2015

The Honorable Jon Woods
State Senator
Post Office Box 8082
Springdale, Arkansas 72766

Dear Senator Woods:

This is in response to your request for my opinion on the following questions concerning Amendment 94 to the Arkansas Constitution:

1. Do years served in the General Assembly prior to the passage of Amendment 94 count towards the cumulative limit of sixteen years now imposed under Amendment 73, § 2? I specifically note Amendment 73, § 6(a), which was unaffected by Amendment 94:

This Amendment to the Arkansas Constitution shall take effect and be in operation on January 1, 1993, and its provisions shall be applicable to all person[s] thereafter seeking election to the offices specified in this Amendment.

In follow up to Question (1), please consider the following examples:

a. Assume a person sought election to the House of Representatives after January 1, 1993, was elected and served three two-year terms, and left office under the term limits imposed by Amendment 73 prior to adoption of Amendment 94. In light of Amendment 94, may that person run again for the House of Representatives or for the Senate and, if elected, serve a maximum of ten more years in the General Assembly or, assuming the person completes his or her sixteenth year of service during a term of office to which he or she was elected, until the completion of that term of office?

b. Assume a person sought election to the Senate after January 1, 1993, was elected and served two four-year terms, and left office under the term limits imposed by Amendment 73 prior to adoption of Amendment 94. In light of Amendment 94, may that person run again for the House of Representatives or for the Senate and, if elected, serve a maximum of eight more years in the General Assembly or, assuming the person completes his or her sixteenth year of service during a term of office to which he or she was elected, until the completion of that term of office?

c. If a current member of the House of Representatives is serving his or her second two-year term in the 90th General Assembly and seeks re-election in 2016, may that person serve a maximum of twelve more years in the General Assembly or, assuming the person completes his or her sixteenth year of service during a term of office to which he or she was elected, until the completion of that term of office?

d. If a current member of the Senate is serving his or her second four-year term in the 90th General Assembly and seeks re-election in 2016, may that person serve a maximum of eight more years in the General Assembly or, assuming the person completes his or her sixteenth year of service during a term of office to which he or she was elected, until the completion of that term of office?

2. Are two-year terms served as a result of an apportionment of the Senate included when calculating the total number of years served by a member of the General Assembly?

3. Are partial legislative terms served as a result of a special election under Article 5, § 6 of the Arkansas Constitution included when calculating the total number of years served by a member of the General Assembly?

RESPONSE

It is my opinion that the answer to your first question is "yes," as to years served after January 1, 1993. The answer to each question under the examples you have presented is therefore "yes," in my opinion. The answer to each of your remaining questions is "no," in my opinion.

Question 1 — Do years served in the General Assembly prior to the passage of Amendment 94 count towards the cumulative limit of sixteen years now imposed under Amendment 73, § 2?

Amendment 94 is entitled "The Arkansas Elected Officials Ethics, Transparency, and Financial Reform Amendment." It consists of eighteen sections; and, as its title reflects, it amends the constitution in several material respects. However, the section primarily at issue here is Section 3. This section amends Section 2 of Amendment 73 to the Arkansas Constitution as follows:

(a) The Arkansas House of Representatives shall consist of members to be chosen every second year by the qualified electors of the several counties. [Old three-term limit struck.]

(b) The Arkansas Senate shall consist of members to be chosen every four years by the qualified electors of the several districts. [Old two-term limit struck.]

(c)(1) A member of the General Assembly shall serve no more than sixteen (16) years, whether consecutive or nonconsecutive.

(2) A member who completes his or her sixteenth year of service during a term of office for which he or she has been elected may serve until the completion of that term of office.

(3) The years of service in both the Senate and the House of Representatives shall be added together and included to determine the total number of years in office.

(4) A partial legislative term served as a result of a special election under Article 5, § 6, or a two-year term served as a result of apportionment of the Senate shall not be included in calculating the total number of years served by a member of the General Assembly.

With the adoption of Amendment 94, therefore, beginning November 5, 2014, a member of the General Assembly may serve up to sixteen years in either the House of Representatives or the Senate, or a combination of both.

In considering the effect of this amendment, and specifically the question whether years served prior to its adoption count toward the sixteen-year limit, the applicable rules of construction are well-established. The rules are the same as those governing the construction of statutes. The common aim is to ascertain and give effect to the intent of those who drafted and enacted the provision at issue. It is a rule of "universal application" that the constitution and its amendments must be read and construed together as a whole. All sections must be read together, in light of every other section on the same subject, "with a view of the harmonious whole." An amendment to the existing constitution "fits into that organic body," displacing only that which is necessarily repugnant to or in irreconcilable conflict with the amendment. No interpretation of an amendment should be allowed that would conflict with any other provision of the constitution unless it is absolutely necessary to give effect to the amendment. The courts cannot read words into a constitutional amendment that are not found therein either expressly or by fair implication.

Bearing in mind these precepts, I believe it is of crucial significance that Amendment 94 does not take up the whole subject of term limits. Rather, by its express terms, it only amends Section 2 of Amendment 73, as set out above. Of particular significance, it says nothing about when years of service are to be counted. Nor does it mention Section 6 of Amendment 73, which as you note provides that Amendment 73 applies to persons seeking election after January 1, 1993:

This Amendment to the Arkansas Constitution shall take effect and be in operation on January 1, 1993, and its provisions shall be applicable to all person[s] thereafter seeking election to the offices specified in this Amendment.

The Arkansas Supreme Court addressed this provision in U.S. Term Limits v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994), where it was faced with the question of when the counting of terms must commence under Amendment 73. The court found the amendment ambiguous on the question, and ultimately concluded that the amendment applies prospectively to periods of service commencing on or after January 1, 1993.

The framers of Amendment 94 are presumed to have acted with full knowledge of the existing provisions of Amendment 73, including this decision regarding the counting of periods of service. This decision is now part of Amendment 73. When Amendment 94 "fits into" the constitution, therefore, the result is a constitutional term-limits amendment that sets a sixteen-year limit on service as of November 5, 2014, with years served after January 1, 1993, counted for limitation purposes. This follows, in my opinion, from the above canons of constitutional construction. Amendment 94 displaces only that which is necessarily repugnant to or in irreconcilable conflict with the new amendment. In my opinion, there is no conflict between Amendment 94 and the existing law regarding when periods of service are counted for purposes of disqualification under Amendment 73. More specifically, I perceive no conflict between Section 18 of Amendment 94, which makes the amendment effective on November 5, 2014, and Section 6 of Amendment 73. I do not read into this stated effective date any implied amendment of Section 6 of Amendment 73. Amendment 94 only amended Section 2 of Amendment 73, which only addresses the number of years a member may serve, without regard to when years of service are counted. Section 6 of Amendment 73 was not amended, either expressly or by implication; and there is nothing in Amendment 94 to suggest that the framers intended to displace prior law on when counting periods of service must commence.

In response to your question, therefore, it is my opinion that years served in the General Assembly after January 1, 1993, count towards the cumulative limit of sixteen years now imposed under Amendment 73. Accordingly, the answer to each question under the examples you have presented is "yes," in my opinion.

Question 2 — Are two-year terms served as a result of an apportionment of the Senate included when calculating the total number of years served by a member of the General Assembly?

No, pursuant to the plain language of subsection (c)(4) of Section 2 of Amendment 73, as amended by Amendment 94. It bears noting that the exclusion of two-year Senate terms encompasses both terms that are cut short due to the election required after reapportionment and two-year terms that are drawn by lot following reapportionment. Thus, for instance, in the case of a senator who was elected in 2010 and reelected in 2012, and who drew a two-year term thereafter, neither the two years from 2011-2013 nor the two years from 2013-2015 will count in calculating his or her total years of service for purposes of term limits under Amendment 94.

Question 3 — Are partial legislative terms served as a result of a special election under Article 5, § 6 of the Arkansas Constitution included when calculating the total number of years served by a member of the General Assembly?

No, pursuant to the plain language of subsection (c)(4) of Section 2 of Amendment 73, as amended by Amendment 94.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

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