Did the Arkansas AG certify a proposed initiated act to add sexual orientation and gender identity to the Arkansas Civil Rights Act's protected classes?
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Plain-English summary
Jack Michael Weir III asked the Arkansas Attorney General to certify a popular name and ballot title for a proposed initiated act amending the Arkansas Civil Rights Act of 1993. The proposal would add sexual orientation and gender identity as bases on which people would have a right to be free from discrimination.
The sponsor submitted the popular name “AN AMENDMENT TO THE ARKANSAS CIVIL RIGHTS ACT OF 1993.” Attorney General Leslie Rutledge substituted and certified a different popular name: “An Act Amending the Arkansas Civil Rights Act of 1993.” She also substituted and certified a revised ballot title. The opinion expressly says a “more suitable, complete, and correct popular name and ballot title” should replace those proposed.
The substituted title explains that the proposed act would add protections based on sexual orientation and gender identity. It states that the Civil Rights Act already protected against discrimination based on race, religion, national origin, gender, or disability, and it lists the activities covered, including employment, public accommodations, property and contractual transactions, and voting and political participation. The submitted title listed proposed rights but did not provide that same context about existing protected categories and included spelling errors in “enjoymant” and “accomodation.”
Certification concerned petition language. The AG expressly said it did not express her view of the merits or likelihood that the proposal would achieve its objective. She also said instructions to canvassers and signers had to be incorporated before circulating petitions. The opinion does not establish that the proposed act became law or reached a ballot.
Currency note
This opinion was issued in 2015 about a proposed act. Check the measure's later history and current Arkansas civil rights law before treating its proposed language as law.
Common questions
Did the AG approve the sponsor's popular name as submitted? No. The sponsor wrote “An Amendment to the Arkansas Civil Rights Act of 1993.” The AG certified “An Act Amending the Arkansas Civil Rights Act of 1993” instead.
What did the revised ballot title tell voters?
It described the two proposed new protected categories, named existing categories, and listed the types of rights the act covered. The certified language appears in the original opinion text below.
Did AG certification enact the proposal?
No. The opinion addresses certification of petition language before circulation. It does not decide whether the measure later qualified for a ballot or became law.
Did the AG endorse the proposal's policy?
No. She expressly stated that certification or rejection of a popular name and title does not reflect her view of a measure's merits.
Background and statutory framework
A.C.A. § 7-9-107 governed the AG's review of proposed popular names and ballot titles before petitions circulated. The opinion explains that she could substitute more suitable language when practicable. It cites § 7-9-107(b) and A.C.A. § 7-5-522 while discussing title brevity and voting booth time. The proposal referred to A.C.A. § 16-123-107(a), the provision of the Arkansas Civil Rights Act the sponsor sought to amend. The AG also cited A.C.A. § 7-9-108 for instructions to canvassers and signers.
Citations
- A.C.A. § 7-9-107 (certification process)
- A.C.A. § 7-9-107(b) (brevity reference)
- A.C.A. § 7-9-108 (petition instructions)
- A.C.A. § 7-5-522 (voting booth time limit)
- A.C.A. § 16-123-107(a) (provision the sponsor proposed to amend)
Source
Original opinion text
Opinion No. 2015-029
March 31, 2015
Jack Michael Weir III
721 South Booker Street
Little Rock, Arkansas 72205
Dear Mr. Weir:
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
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.
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 AMENDMENT TO THE ARKANSAS CIVIL RIGHTS ACT OF 1993
Ballot Title
A proposed act to amend Arkansas Code § 16-123-107(a) under the Arkansas Civil Rights Act of 1993 to include sexual orientation and gender identity to the groups protected from discrimination; to have the right to obtain and hold employment without discrimination; to have the right to full enjoymant [sic] of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accomodation [sic], assemblage, or amusement; to have the right to engage in property transactions without discrimination; to have the right to engage in credit and other contractual transactions without discrimination; and the right to vote and participate fully in the political process.
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.
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 measure.
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 a more suitable, complete, and correct popular name and ballot title should be substituted for those proposed. The following is hereby certified in order to ensure that, when construed together, the popular name and ballot title accurately set forth the purpose of the proposed measure:
Popular Name
An Act Amending the Arkansas Civil Rights Act of 1993
Ballot Title
This Act amends the Arkansas Civil Rights Act of 1993 to add a right to be free from discrimination on the basis of both sexual orientation and gender identity. The Arkansas Civil Rights Act currently gives people the right to be free from discrimination on the basis of race, religion, national origin, gender, or disability. The right to be free from discrimination includes (1) the right to obtain and hold employment without discrimination; (2) the right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement; (3) the right to engage in property transactions without discrimination; (4) the right to engage in credit and other contractual transactions without discrimination; and (5) the right to vote and participate fully in the political process.
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 Arkansas Constitution and the associated penalties for violations. Enclosed herewith, over the signature of the Attorney General, are instructions that should be incorporated in your petition prior to circulation.
Attorney General
LR/cyh
Enclosures
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