Why did the Arkansas AG reject the first 2014 ballot title for the statewide alcohol amendment proposed by David Couch?

Plain-English summary

This was the first of two 2014 attempts by David A. Couch to get a statewide alcohol-legalization constitutional amendment certified for circulation under A.C.A. § 7-9-107. The measure would have authorized manufacture, sale, distribution, and transportation of intoxicating liquors in every Arkansas county effective July 1, 2015, and would have repealed local-option (wet-dry) elections. AG Dustin McDaniel rejected it because the text contained six specific ambiguities, most of them grammatical: misuse of the disjunctive "or" in places where the meaning required "and"; omission of "distribution" from the regulatory clause in Section 3; misplaced modifier "as now existing or hereafter changed"; and (most importantly) no clear declaration in the measure itself that it was a constitutional amendment. The sponsor revised and resubmitted; that revised version was also rejected in Op. Att'y Gen. 2014-039.

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.

The six specific ambiguities the AG flagged

1. "Or" in Section 1. Section 1 used the disjunctive "or" with the singular verb "is" to authorize "manufacture, sale, distribution or transportation." Read literally, that authorizes only one of the four activities without indicating which.

2. "Or" in Section 3. Section 3 used "or" again to describe what would be regulated by the General Assembly: "the manufacture, sale or transportation of intoxicating liquors shall be regulated." This could be read as requiring regulation of only one of the three things listed.

3. "Or" in Section 4. Section 4 said the amendment "[r]epealing all laws or parts of laws in conflict." Read literally, that could mean repealing only "laws" or only "parts of laws."

4. "Distribution" missing from Section 3. Section 1 authorized distribution along with the other activities. Section 3 omitted distribution from the regulatory list. The AG read that as potentially precluding regulation of distribution.

5. Misplaced modifier in Section 3. "As now existing or hereafter changed" should grammatically modify "General Assembly," the closest antecedent noun. Read that way, the sentence makes no sense.

6. No declaration that the measure is a constitutional amendment. The ballot title said the measure was a constitutional amendment, but the text never said so. The text also contained an enacting clause ("BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS"), which is required only for initiated acts, not for initiated constitutional amendments. The combination could lead voters to believe the measure was an act rather than an amendment. The AG cited U.S. Term Limits, Inc. v. Hill, 316 Ark. 251 (1994), for the rule that enacting clauses are required for acts but not amendments.

Common questions

Q: Is "or" really that different from "and" in a legal text?
Yes. The disjunctive "or" gives a choice between alternatives; "and" requires both (or all). When a statute or amendment says someone may do X "or" Y, the natural reading is that doing one of them satisfies the provision. When the drafter actually means "and all of these things together," the use of "or" creates a serious interpretation problem.

Q: Why is the missing "constitutional amendment" declaration so important?
Initiated acts and initiated constitutional amendments follow different procedures and have different legal effects. The ballot title summarizes; it cannot supply substance the measure itself does not contain. If the text reads like an initiated act, voters may not understand they are voting on a constitutional change.

Q: What happened next?
The sponsor revised the text and resubmitted within weeks. That revised version (the basis for Op. Att'y Gen. 2014-039, issued April 17, 2014) was also rejected on different but related grounds (Section 3's regulation clause was still ambiguous).

Q: Could the AG just rewrite the measure to fix the ambiguities?
No. A.C.A. § 7-9-107 lets the AG substitute a more suitable popular name and ballot title, but does not let the AG rewrite the measure itself. If the measure is internally inconsistent, the AG cannot draft a ballot title that fairly summarizes it.

Citations

Statutes

• A.C.A. § 7-9-107 (popular name and ballot title certification)
• A.C.A. § 7-5-522 (five-minute voting booth limit)

Cases (all Arkansas Supreme Court)

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994)

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. 2014-030

April 1, 2014

David A. Couch
1501 North University, Suite 228
Little Rock, Arkansas 72207

Dear Mr. Couch:

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:

Popular Name

THE ARKANSAS ALCOHOLIC BEVERAGE AMENDMENT

Ballot Title

An amendment to the Arkansas Constitution to provide that effective July 1, 2015, the manufacture, sale, distribution or transportation of intoxicating liquors is authorized in every county of this state, defining intoxicating liquors as any beverage containing more than one-half of one percent of alcohol by weight, providing that the manufacture, sale or transportation of intoxicating liquors shall be regulated by the General Assembly as now existing or hereafter changed, and repealing all laws or parts of laws in conflict with this amendment specifically including laws providing for a local option election (wet-dry election) to determine whether intoxicating liquors may be sold or not sold

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, 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.

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. 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).

I refer to the following ambiguities:

• Your using in section 1 the disjunctive "or" and the singular verb "is" may be taken as authorizing only one of the four things listed without indicating which.

• Your using in section 3 the disjunctive "or" (first occurrence) may be taken as requiring regulation of only one of the three things listed without indicating which.

• Your using in section 4 the disjunctive "or" may be taken as providing for repeal of only "laws" or only "parts of laws" without indicating which.

• Your including in section 1 and omitting from section 3 the word "distribution" may be taken as precluding regulation of distribution.

• Grammar rules suggest that "as now existing or hereafter changed" should be taken as modifying "General Assembly," the closest antecedent noun in section 3.

• Your proposed ballot title indicates that your proposal is intended to be a constitutional amendment but nothing in the proposal itself so suggests. Your omitting any such indication and including an enacting clause — which is required for initiated acts but not for initiated constitutional amendments — may be taken as meaning that your proposal is an initiated act.

I cannot 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 (for the foregoing reasons) and instruct you to "redesign" the proposed measure and ballot title. You may, after addressing 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