Did the Arkansas AG certify a 2014 constitutional amendment legalizing cannabis statewide with a 1% THC dividing line between hemp and cannabis?

Plain-English summary

Frederick Porter submitted a proposed Arkansas constitutional amendment concerning the cultivation, manufacture, distribution, sale, possession, and use of the cannabis plant and its products. The proposed ballot title defined hemp as cannabis material with one percent or less Delta-9-THC by dry weight and cannabis as material with more than one percent. It said the cannabis plant could be regulated but not prohibited by the General Assembly and that preemptive federal law would remain effective unless Congress changed it.

The AG said the submission was identical to one he had certified in Opinion 2014-056, except for the proposed effective date. He found the proposed popular name, “The Arkansas Hemp and Cannabis Amendment,” sufficient. He substituted and certified a revised ballot title. This was a certification of petition language, not a conclusion about the proposal's merits or legal effect.

The submitted title had a single sentence saying the cannabis plant “may be regulated but not prohibited.” It contained no “listed activities” clauses and no limit on the number of hemp plants or products. The substitute added separate clauses for activities relating to cannabis and hemp. For each, it said the activities “may be regulated but not prohibited.” For hemp alone, it added a condition that the General Assembly could not limit or prohibit the number of plants cultivated or the products derived from manufacturing. It also changed “is permitted” to “are lawful” in the opening clause and restated that preemptive federal law would remain in effect unless Congress changed it.

The opinion explains the AG's limited certification role. A popular name and ballot title must honestly, intelligibly, and fairly describe the proposal for voters. Under A.C.A. § 7-9-107, the AG may substitute more suitable language if possible or reject language that is too misleading. The AG said the revised ballot title sufficiently stated the proposal's purpose; he did not decide whether the amendment would achieve that purpose.

Currency note

This opinion was issued in 2014. Later law may have changed the petition process or cannabis rules. Verify current law before relying on the proposal, which this opinion describes only as a proposed amendment.

Common questions

Did this opinion legalize cannabis in Arkansas?
No. The AG certified petition language for a proposed constitutional amendment. The opinion says certification does not express his view of the proposal's merits.

What did the sponsor submit, and what did the AG change?
The sponsor's title said the cannabis plant could be regulated but not prohibited. The AG's substitute added separate rules for activities involving cannabis and hemp. Only its hemp clause added the condition against limiting plant numbers or manufactured products. These words appear in the two ballot titles reproduced in the opinion.

Was the popular name changed?
The opinion calls the submitted popular name sufficient and certifies “The Arkansas Hemp and Cannabis Amendment.” It supplies a revised ballot title.

What must happen before circulating the petition?
The opinion cites A.C.A. § 7-9-108 and says AG-issued instructions to canvassers and signers should be incorporated into the petition before circulation. The instructions themselves are not reproduced in this page's opinion text.

Did the AG rule that the proposed amendment was constitutional or would work as intended?
No. He expressly said A.C.A. § 7-9-107 did not authorize his office to decide the measure's merits or likelihood of accomplishing its objective during ballot title review.

Background and statutory framework

A.C.A. § 7-9-107 required the AG to certify a popular name and ballot title before petitions circulated. The opinion says the AG could substitute suitable language when possible or reject an insufficient submission. It also refers to § 7-9-107(b) when explaining why a ballot title must be concise and to A.C.A. § 7-5-522's five minute voting booth limit. A.C.A. § 7-9-108 required instructions for canvassers and signers to precede each petition.

The AG described the ballot title standard as an impartial summary giving voters a fair understanding of the proposal. It had to avoid misleading wording or partisan coloring and convey an intelligible idea of the scope and significance of the proposed legal change.

Citations

• A.C.A. § 7-9-107 (AG certification of popular names and ballot titles)
• A.C.A. § 7-9-107(b) (brevity and substitution discussed in the opinion)
• A.C.A. § 7-9-108 (petition instructions)
• A.C.A. § 7-5-522 (five minute voting booth limit)
• Op. Att'y Gen. 2014-056 (prior submission, different proposed effective date)

Source

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

Original opinion text

Opinion No. 2014-079
August 5, 2014

Frederick W. Porter
102 Timber Street
Hot Springs, Arkansas 71913

Dear Mr. Porter:

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. Your submission is identical in all respects other than its proposed effective date to one I certified, after revising the proposed ballot title, in Op. Att'y Gen. 2014-056. Your proposed popular name and ballot read as follows:

Popular Name

THE ARKANSAS HEMP AND CANNABIS AMENDMENT

Ballot Title

An amendment proposed by the people to the Arkansas Constitution to provide effective February 20, 2017, that the cultivation, manufacturing, distribution, sale, possession and use of the cannabis plant (genus cannabis) and all products derived from the cannabis plant (genus cannabis) is permitted in every geographic area of each and every county of this state; that for purposes of this amendment, "hemp" is defined as any part of the cannabis plant (genus cannabis), living or not, containing one percent or less, by dry weight, Delta-9-Tetrahydrocannabinol (Delta-9-THC); "cannabis" is defined as any part of the cannabis plant (genus cannabis), living or not, containing greater than one percent, by dry weight, Delta-9-Tetrahydrocannabinol (Delta-9-THC). That the cannabis plant (genus cannabis) may be regulated but not prohibited by the General Assembly; and, that all laws in conflict with this amendment are repealed to the extent they conflict with this amendment. 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.

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.

Applying the above precepts, it is my conclusion that your proposed popular name is sufficient but that a more suitable, complete and correct popular name and ballot title should be substituted for that proposed. The following is hereby certified in order to ensure that the ballot title accurately sets forth the purpose of the proposed amendment:

Ballot Title

An amendment proposed by the people to the Arkansas Constitution to provide, effective February 20, 2017, that the cultivation, manufacturing, distribution, sale, possession and use of the cannabis plant (genus cannabis) and all products derived from the cannabis plant (genus cannabis) are lawful in every geographic area of each and every county of this state; that, for purposes of this amendment, "hemp" is defined as any part of the cannabis plant (genus cannabis), living or not, containing one percent or less, by dry weight, Delta-9-Tetrahydrocannabinol (Delta-9-THC); that, for purposes of this amendment, "cannabis" is defined as any part of the cannabis plant (genus cannabis), living or not, containing greater than one percent, by dry weight, Delta-9-Tetrahydrocannabinol (Delta-9-THC); that the listed activities relating to "cannabis" devoted to personal, industrial or commercial use may be regulated but not prohibited by the General Assembly; and that the listed activities relating to "hemp" devoted to personal, industrial or commercial use may be regulated but not prohibited, subject to the condition that the number of plants cultivated or the products derived from manufacturing shall not be limited or prohibited by the General Assembly. Preemptive federal law will remain in effect unless altered by Congress.

In my view, the purpose of your proposed measure is sufficiently stated in the above revised ballot title to satisfy this office's mandate under A.C.A. § 7-9-107.

Pursuant to A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Constitution and of the penalties imposed for violations of this act. Enclosed herewith, over the signature of the Attorney General, are instructions that should be incorporated in your petition prior to circulation.

Attorney General
DM/cyh

Enclosures