Did the Arkansas AG certify an initiated act that would lower the wet-dry election signature threshold from 38% of qualified electors to 25% of legal voters?

Plain-English summary

Attorney David Couch submitted the first version of his proposed initiated act to make it easier to call Arkansas local-option (wet-dry) elections. The current statute, A.C.A. § 3-8-205, required signatures from 38% of "qualified electors" in the affected county, township, municipality, ward, or precinct. The proposed act would have lowered the threshold to 25% of "legal voters" calculated as votes cast in the last gubernatorial election.

AG Leslie Rutledge rejected the ballot title because the proposed text used "legal voters" without defining it, and the term was substantively ambiguous in the post-2013 Arkansas statutory landscape.

Under existing Arkansas election law, "qualified elector" is a defined term in A.C.A. § 7-1-101(32) that means a person who holds the qualifications of an elector and is registered under Amendment 51 of the Arkansas Constitution. The Arkansas Supreme Court confirmed that definition in Allred v. McLoud (2000). The current wet-dry statute uses "qualified electors," and the meaning is settled.

The proposed switch to "legal voters" introduced a problem. The Arkansas Constitution, in Article 5, Section 1, uses "legal voters" for statewide and local initiatives, but does not define the term. And under Armstrong v. Sturch (1962) and Yarbrough v. Beardon (1944), a local-option petition is not an initiative petition for purposes of Article 5, so that constitutional usage was not directly applicable. The general initiative law had defined "legal voter" in A.C.A. § 7-9-101(5) (Repl. 2011) as "a person who is registered at the time of signing the petition pursuant to Arkansas Constitution, Amendment 51." But Acts 2013, No. 1413, § 2, replaced that definition by amending § 7-9-101 to drop "legal voter" entirely and use "registered voter" instead. By 2015, the term "legal voter" had no current statutory definition.

That left the AG unable to tell what the proposal meant. Did "legal voters" import the pre-2013 definition (registered voters)? Did it import the (undefined) constitutional usage? Did it mean something different from both? Without an answer, the AG could not write a ballot title that accurately summarized the effect of the proposal on Arkansas's signature requirements. The opinion rejected the submission under A.C.A. § 7-9-107(c) and instructed the sponsor to redraft.

The sponsor cleaned up the ambiguity in his next submission (Op. Att'y Gen. 2015-025), only to be rejected on a different ground (the title failed to emphasize the change in the basis for computing signatures). He eventually got a similar proposal certified in Op. Att'y Gen. 2015-026, with the threshold simplified to 38%-to-20% on the existing registered-voter base.

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.

Background and statutory framework

The Arkansas voter-qualification terminology has gone through several rounds of legislative cleanup. A.C.A. § 7-1-101(32) (Supp. 2013) defines "qualified elector" as a person holding the qualifications of an elector and registered under Amendment 51. Allred v. McLoud, 343 Ark. 35 (2000), is the Supreme Court's confirmation.

Before 2013, the general initiative law in A.C.A. § 7-9-101(5) (Repl. 2011) defined "legal voter" as "a person who is registered at the time of signing the petition pursuant to Arkansas Constitution, Amendment 51." Acts 2013, No. 1413, § 2 (codified at A.C.A. § 7-9-101(9) (Supp. 2013)), replaced "legal voter" with "registered voter" in that chapter. The 2013 amendment was part of a broader cleanup intended to align election-law terminology.

The Arkansas Constitution, at Article 5, Section 1, uses "legal voters" for statewide and local initiative petitions. It does not define the term. Armstrong v. Sturch, 235 Ark. 571 (1962), and Yarbrough v. Beardon, 206 Ark. 553 (1944), hold that local-option petitions are not initiative petitions for purposes of Article 5, so the constitutional usage is not automatically imported.

The current local-option statute, A.C.A. § 3-8-205(a)(1) (Supp. 2013), still uses "qualified electors." The proposed initiated act would have replaced that with "legal voters," creating the ambiguity that drove this rejection.

The Arkansas Supreme Court ballot-title precedents cited in the opinion (Roberts v. Priest, Bailey v. McCuen, the rest of the line) all stand for the proposition that an ambiguous underlying measure cannot be cured by AG title-substitution; the AG has to reject and let the sponsor redraft.

Common questions

Why does "legal voters" vs. "qualified electors" actually matter?

Both terms historically pointed to registered voters in Arkansas. But once the General Assembly amended A.C.A. § 7-9-101 in 2013 to drop "legal voter" and use "registered voter" instead, the term "legal voter" became orphaned in Arkansas statutory law. A drafter who used "legal voter" in a new measure was either (a) referring to the now-defunct pre-2013 definition, (b) referring to the undefined constitutional usage in Article 5, or (c) inventing a new meaning. Without a definition in the proposed measure, the AG could not determine which.

Why didn't the AG just assume "legal voter" meant "registered voter"?

The Arkansas Supreme Court's rule (Bailey v. McCuen, Roberts v. Priest) is that essential facts about the proposed measure that would give a voter "serious ground for reflection" must be disclosed in the ballot title. The AG's substitution power under § 7-9-107(b) is limited to writing a more suitable summary of what the measure actually says, not to making interpretive guesses. If the AG had assumed "legal voter" meant "registered voter" and written a ballot title to that effect, and a court later read the measure differently, the ballot title would be misleading. The safer path was to reject and ask the sponsor to fix the text.

What is a local-option election in Arkansas?

A county, township, municipality, ward, or precinct vote on whether to allow the licensed manufacture and sale of alcoholic beverages within its boundaries. The petition mechanism is in A.C.A. § 3-8-205. A successful petition triggers the question's appearance on the next biennial general election ballot. A "wet" vote permits sale; a "dry" vote prohibits it.

How did the term "legal voter" disappear from Arkansas election law?

Acts 2013, No. 1413, § 2, amended A.C.A. § 7-9-101 to remove the "legal voter" definition and replace it with "registered voter." That was part of a 2013 cleanup that tightened election-law terminology, in part responding to Arkansas's then-new voter-ID requirements and to litigation about who is qualified to participate in the initiative process. After the cleanup, "registered voter" is the operative term in Arkansas initiative law; "legal voter" lives on only in older constitutional text.

What happened next in this sponsor's series of submissions?

Op. Att'y Gen. 2015-025 was the second try (rejected for failing to highlight the change in the signature-computation basis). Op. Att'y Gen. 2015-026 was the third try, which the AG certified after the sponsor simplified the proposal to a percentage change only.

Citations

Statutes: A.C.A. § 7-9-107 (AG certification); § 7-9-107(b) (substitution); § 7-9-107(c) (rejection); § 7-9-101(5) (Repl. 2011) (pre-2013 "legal voter" definition); § 7-9-101(9) (Supp. 2013) (post-2013 "registered voter" definition); § 7-1-101(32) (Supp. 2013) (qualified elector); § 3-8-205(a)(1) (Supp. 2013) (current wet-dry threshold); § 7-5-522 (booth time limit).

Legislative authority: Acts 2013, No. 1413, § 2 (replaced "legal voter" with "registered voter"); Ark. Const. art. 5, § 1 (initiative petitions); Ark. Const. amend. 51 (voter registration).

Cases: Allred v. McLoud (2000); Armstrong v. Sturch (1962); Yarbrough v. Beardon (1944); Kurrus v. Priest (2000); Donovan v. Priest (1996); Plugge v. McCuen (1992); Arkansas Women's Political Caucus v. Riviere (1984); Pafford v. Hall (1950); Chaney v. Bryant (1976); Moore v. Hall (1958); May v. Daniels (2004); Becker v. Riviere (1980); Bailey v. McCuen (1994); Becker v. McCuen (1990); Christian Civic Action Committee v. McCuen (1994); Roberts v. Priest (2000).

Related AG opinions: 2015-025 (second rejection); 2015-026 (eventual certification of simpler proposal).

Source

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

Original opinion text

Opinion No. 2015-014
February 6, 2015
David A. Couch
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
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 initiated act:

Popular Name
An Act Concerning Local Option (Wet-Dry) Elections

Ballot Title
A proposed act to change the number of signatures required to call a local option (wet-dry) election from 38% of the qualified electors (registered voters) in the county, township, municipality, ward or precinct to 25% of the total number of votes cast for the office of governor in the last preceding general election in the county, township, municipality, ward or precinct.

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, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General 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 act.

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 act, 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 an ambiguity in the text of your proposed measure. Certain 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 ambiguity. 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 ambiguity pertains to qualified signers on petitions for local option elections under your proposed initiated act. This aspect of your proposal is not summarized in the ballot title you have submitted. Your ballot title accurately summarizes the proposed change regarding the basis for computing the number of signatures required to call a local option election. But it contains no information concerning what signatures would count in testing the sufficiency of a petition for a local option election.

The current law requires that petitions be signed by a 38% of "qualified electors." The term "qualified elector" is defined in the Election Code. Under your proposed act, petitions must be signed by 25% of "legal voters." The term "legal voters" is undefined under your measure. Nor does state law define the term. It was formerly defined under the general election law governing initiatives and referenda. But a 2013 amendment to that body of law replaced the term "legal voter" with "registered voter."

Some uncertainty thus arises regarding which signatures would count in testing the sufficiency of a petition following the changes proposed by your measure. The issue of qualified signatures is undoubtedly a significant matter for the voters' consideration. Without clarification of the above ambiguity, however, this significant point cannot be accurately summarized for the voters in a ballot title.

My office in the certification of ballot titles and popular names does not address 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.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reason and instruct you to redesign the proposed measure and ballot title. You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,

Attorney General
LR/cyh
Enclosure