Did the Arkansas AG approve David Couch's May 2014 ballot title for the Arkansas Alcoholic Beverage Amendment to make the state 'wet'?

Plain-English summary

Attorney David Couch submitted a proposed constitutional amendment titled the "Arkansas Alcoholic Beverage Amendment" for AG certification. The amendment would have made the manufacture, sale, distribution, and transportation of intoxicating liquors lawful in every county of Arkansas effective July 1, 2015, with regulation by the General Assembly. Two earlier drafts had been rejected (Op. 2014-039 and 2014-030). This third draft was also rejected.

AG Dustin McDaniel walked through the specific ambiguities:

1. Scope of the General Assembly's retained regulatory power. The proposal directed the General Assembly to "regulate" alcohol but did not say what limits, if any, applied. Without the amendment, the General Assembly already has full regulatory authority over alcohol, including the power to ban it outright. So is the proposal merely making the state permanently "wet" (preventing future bans), or also creating a substantive right to manufacture, etc., that limits General Assembly authority? The proposal didn't say.

2. "In every county" ambiguity. Did this mean the whole state, or did it mean the requirement would be satisfied if at least some area of each county were "wet"?

3. Permanent wet vs. effective-date wet. The proposed ballot title said the amendment would repeal "laws providing for a local option election," but the proposal itself didn't specify any laws to repeal. So would the proposal actually make the state (or parts of each county) permanently wet, or would it leave existing local-option laws in place, allowing voters to make areas dry?

4. Voter-significant ambiguities require ballot-title disclosure. How the proposal changes the law about General Assembly regulatory authority, state wet/dry status, and local-option elections are all matters of fundamental concern to voters. The ballot title must communicate an intelligible idea of the scope of the change.

5. Section numbering broken. The proposed measure has sections numbered 1, 2, 3, 5, 6, with section 4 missing. The AG flagged this as a drafting error.

The AG concluded he could not write a substitute ballot title without these ambiguities resolved. He invited Couch to redesign and resubmit. (Couch did, successfully, in Op. 2014-049, issued just over two weeks later.)

The opinion's general framework is the standard ballot-title certification template. Statutory authority: A.C.A. § 7-9-107. Brevity requirement: A.C.A. § 7-9-107(b) and the five-minute voting-booth limit at A.C.A. § 7-5-522. Standards from Arkansas Supreme Court precedent: honesty, intelligibility, fairness, no misleading tendency, no partisan coloring. Bailey v. McCuen requires disclosure of essential facts that would give voters serious ground for reflection. Roberts v. Priest holds that internal inconsistencies in the proposed measure itself can warrant rejection.

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

Why did the Arkansas AG reject this alcohol amendment three times?
Each version had drafting ambiguities that prevented the AG from writing a faithful ballot title. The third rejection focused on: scope of General Assembly regulatory authority post-amendment, whether "every county" meant the whole state, and whether existing local-option (wet-dry) election laws would be repealed.

What does it mean for a state to be "wet" or "dry" in Arkansas?
"Wet" means alcohol sales are legal; "dry" means they're banned. Arkansas allows individual cities and counties to vote on wet-dry status through local-option elections. A statewide "wet" amendment would override the local-option system. The 2014 proposal aimed to do that but didn't clearly specify how.

Did this amendment ever get certified?
Yes. Op. 2014-049 (May 19, 2014) certified the fourth draft. The fourth version clarified that the General Assembly may "regulate, but not prohibit" sales, that the entire geographic area of each county is included, and that local-option election laws are specifically repealed.

Why is it important to specify what laws an amendment repeals?
Voters need to understand the scope of change. A general "all conflicting laws are repealed" clause doesn't tell voters which specific laws will be affected. Bailey v. McCuen requires the ballot title to disclose essential facts that would give voters serious ground for reflection. Vague repeal language fails that standard.

What is the AG's role in this process?
At the time of this opinion, A.C.A. § 7-9-107 required the AG to certify popular names and ballot titles before petitions could be circulated for signatures. The AG could approve, substitute a better title, or reject. The AG does not pass on the merits.

Background and statutory framework

The Arkansas AG's review of initiative petitions is governed by A.C.A. § 7-9-107. The AG can approve, substitute, or reject. The Arkansas Supreme Court has developed extensive doctrine on what makes a ballot title sufficient. Relevant precedents:

• Pafford v. Hall (1950): popular name as a useful legislative device.
• Becker v. Riviere (1980): ballot title must include impartial summary giving voter fair understanding.
• Bailey v. McCuen (1994): essential facts giving voter serious ground for reflection must be disclosed.
• Becker v. McCuen (1990): title must be honest and impartial.
• Christian Civic Action Committee v. McCuen (1994): title must convey intelligible idea of scope.
• Donovan v. Priest (1996) and Kurrus v. Priest (2000): Amendment 7 cannot empower measures outside U.S. Constitution.
• Plugge v. McCuen (1992): AG generally not required to flag constitutional infirmities unless the measure is clearly contrary to law.
• May v. Daniels (2004): popular name and ballot title considered together.
• Roberts v. Priest (2000): internal inconsistencies in the proposal warrant rejection.

The Couch alcohol amendment sequence: 2014-030 → 2014-039 → 2014-042 → 2014-049 (approved). The pattern of multiple revisions before approval is common.

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (AG certification authority)
• A.C.A. § 7-9-107(b) (brevity requirement)
• A.C.A. § 7-5-522 (five-minute voting-booth limit)
• 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)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Op. Att'y Gen. 2014-039, 2014-030 (prior drafts), 2014-049 (approved version)

Source

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

Original opinion text

Full opinion text unavailable from the official source. See the linked PDF or landing page above for the complete text. Key excerpts:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Opinion No. 2014-042
May 2, 2014

David A. Couch
Attorney at Law
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 popular name and ballot title for a proposed constitutional
amendment. Two similar measures were rejected due to ambiguities in the text of
the proposals. See Op. Att'y Gen. 2014-039 and 2014-030.

Popular Name: THE ARKANSAS ALCOHOLIC BEVERAGE AMENDMENT

Ballot Title: An amendment proposed by the people to the Arkansas Constitution
to provide that effective July 1, 2015, the manufacture, sale, distribution and
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 and
transportation of intoxicating liquors shall be regulated by the General Assembly,
and repealing all 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 measure contains the following ambiguities:

• I said in Opinion 2014-039 that "your proposal does not clearly delineate the
  scope of the General Assembly's regulatory power following the measure's
  adoption." In response you deleted the phrase "as now existing or hereafter
  changed by the General Assembly," words apparently intended to modify the verb
  "shall be regulated." But as I implied in that opinion, the deleted phrase was
  meaningless in context; thus your revision was without substance. The question
  essentially is whether the proposal would be interpreted by courts as merely
  making the state permanently "wet" (absent another constitutional amendment),
  or as also granting the people new substantive rights to manufacture, etc. Absent
  your proposal, the General Assembly has complete regulatory authority over
  alcohol, including the power to ban it outright. The proposal directs the General
  Assembly to "regulate[]" alcohol. It states no limit on that regulatory power. So a
  court might conclude that the proposal does not affect the General Assembly's
  authority. But the proposal also authorizes manufacture, etc., without stated
  limit, an authorization not otherwise afforded. Without some indication of how, if
  at all, the proposal will change the General Assembly's authority to regulate,
  directly or indirectly by granting the people new rights, it is impossible to
  discern the proposal's meaning and describe it in a ballot title.

• Your proposal states that manufacture, etc., "is authorized in every county of
  this State." It is unclear whether the entire state would be "wet" or the
  requirement would be met if at least some area of each county were "wet."

• It is unclear whether your proposal would actually make the state, or parts of
  each county at least, permanently "wet" or would be interpreted merely to make
  areas "wet" as of its effective date and leave in effect existing local-option laws
  that allow voters to make areas "dry." Your proposed ballot title states that the
  measure would repeal conflicting law "specifically including laws providing for a
  local option election," but the proposal itself does not specify any laws it would
  repeal. While your own intent regarding local-option laws is clear, the proposal's
  language is ambiguous regarding the post-effectiveness availability of local-
  option elections.

• How your proposal will change the law concerning the General Assembly's
  regulatory authority and the people's rights with respect to alcohol, the state's
  wet areas, and local-option elections are all matters of fundamental concern to
  voters. The ballot title must communicate an intelligible indication of the scope
  and import of how the proposal will change the law. It is up to the proponent to
  present a measure that is of reasonably certain meaning and to prepare a ballot
  title that accurately describes not only the proposal's words but also its effect on
  current law.

• Your proposal's sections are numbered incorrectly.

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.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/cyh