Did the Arkansas AG certify a revised initiated act that would lower the wet-dry election petition threshold from 38% of registered voters to 25% of votes cast in the last governor's race?
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This page answers the general question as of 2015. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
This is the second attempt by Attorney David Couch to clear a ballot title for an initiated act that would have made it easier to call an Arkansas local-option (wet-dry) election. The first attempt was rejected in Op. Att'y Gen. 2015-014 over an ambiguity about what "legal voters" meant in the proposed text. This time the sponsor cleaned that ambiguity up, but the AG rejected the title for a different reason.
The submitted ballot title described the change in cool, technical terms: signatures required would change from 38% of qualified electors (registered voters) to 25% of total votes cast in the last governor's race. AG Leslie Rutledge concluded that voters speed-reading the ballot title at the polls would see "38% to 25%" and assume the petition threshold was simply being lowered by 13 percentage points. Most would not catch that the denominator was changing too.
The math difference between the two formulations is significant. 38% of registered voters in an Arkansas county is a large absolute number, because almost all voting-age adults are registered. 25% of the votes cast in a single past gubernatorial election is a much smaller absolute number, because gubernatorial turnout in Arkansas typically runs around 40% to 50% of registered voters. The combined effect of "lower the percent" and "shift to a smaller denominator" is a far bigger reduction than the title suggested. By the AG's calculation, the threshold drops by far more than the 13-point face-value reduction would imply.
The AG concluded that hiding that compound effect violated Bailey v. McCuen's rule that essential facts giving the voter "serious ground for reflection" must be disclosed in the ballot title. The title was misleading by omission, even if every individual word in it was technically accurate.
The AG rejected the ballot title and instructed the sponsor to redraft. The sponsor later resubmitted again in Op. Att'y Gen. 2015-026 with a simpler proposal (38% to 20%, keeping the same registered-voter basis), which the AG ultimately certified.
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
A.C.A. § 7-9-107 sets the Attorney General's gatekeeping role for initiated-measure ballot titles. The Arkansas Supreme Court has set the standards. Most relevant here is Bailey v. McCuen, 318 Ark. 277 (1994), which held that any "essential fact which would give the voter serious ground for reflection" must be disclosed. Becker v. McCuen, 303 Ark. 482 (1990), requires the title to convey "an intelligible idea of the scope and significance of a proposed change in the law." Christian Civic Action Committee v. McCuen, 318 Ark. 241 (1994), reinforces the same point.
The interplay of "what looks small but is large" sometimes triggers this kind of rejection. A change that nominally looks like a marginal numeric adjustment can have a substantial substantive effect. The AG's view was that a single-figure reduction from 38% to 25% was the kind of thing a voter could glance at and absorb in a five-minute booth window; the underlying shift in the calculation base would not be visible at that pace.
This opinion is also one of the AG's clearer statements that an accurate technical description can still be a misleading ballot title. Telling voters the literal truth in language they cannot parse fast enough is itself a form of misleading them.
Common questions
Why is changing the denominator so important?
Because the denominator determines the absolute signature count. If the denominator drops from registered voters (say, 100,000 in a county) to votes cast in the last gubernatorial election (say, 45,000), even applying the same percent yields a much smaller number. Combine that with a percentage reduction (38% to 25%) and the result is a steep drop. The AG's view was that the steepness was an essential fact about the proposal that voters needed to see before signing or voting.
Could the AG have rewritten the title herself?
The AG has substitute authority under A.C.A. § 7-9-107(b), but only when she can write a ballot title that accurately summarizes the underlying measure. Here, she did not exercise that authority. The opinion does not explain why, but in similar opinions the AG has declined to substitute when the proposed measure's framing was so far off that fixing the title alone would not solve the problem; the sponsor needed to reconsider whether the measure should keep the change-of-basis at all.
What did the sponsor do next?
Two weeks later the sponsor submitted Op. Att'y Gen. 2015-026, which dropped the change-of-basis idea entirely and proposed a simpler 38%-to-20% reduction using the same registered-voter denominator. That version was certified (with a substituted ballot title for cleaner language) for petition circulation.
Does this mean any percentage-based ballot title needs to flag the denominator?
The pattern that triggered rejection here is specifically the combination of a percent change and a base change. A pure percent change (38% to 20%, same base) is straightforward; a pure base change (same percent, different base) would also be straightforward if the title described it clearly. The hidden compound effect is what made this title misleading. Future sponsors should think about whether the casual reader can do the math from the title text alone.
Is the AG's substantive judgment about "misleading" reviewable?
Practically, yes, by the Arkansas Supreme Court if a sponsor sued to compel certification. The court has reviewed AG ballot-title decisions in Donovan v. Priest, Plugge v. McCuen, and other cases. As a practical matter, sponsors who think the AG was wrong usually redraft and resubmit rather than litigating.
Citations
Statutes: A.C.A. § 7-9-107 (AG certification authority); A.C.A. § 7-9-107(b) (substitution power); A.C.A. § 7-5-522 (booth time limit).
Cases: 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).
Prior AG opinions in the same series: 2015-014 (first rejection on ambiguity grounds); 2015-026 (later certification of a different version).
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2015-025
March 12, 2015
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
initiated act. You previously submitted a similar measure, which this office
rejected due to an ambiguity in the text of the proposed measure. See Op. Att'y
Gen. No. 2015-014. You have changed the text of your proposal and have now
submitted the following popular name and ballot title for my certification:
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 by qualified
electors 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.
Applying the above precepts, it is my conclusion that the ballot title you have
submitted would be misleading for the reason that it fails to emphasize the change
in the basis for computing the number of signatures required to call a local option
election. I believe it can reasonably be anticipated that a significant number of
voters will quickly scan this proposed ballot title and assume that the signature
requirement simply drops from 38% to 25%. Many will not realize that it is likely
a much more significant reduction due to the change from registered voters to
voter turnout as the basis for determining the requisite number of signatures on a
petition. The ballot title is misleading in failing to convey the scope and
significance of the proposed change in the petition signature requirement in a
manner that is not subject to misinterpretation by a significant number of voters.
I must therefore reject your proposed ballot title and instruct you to redesign it in a
manner that will not be misleading.
Sincerely,
LESLIE RUTLEDGE
LR/cyh
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