Did the Arkansas AG certify the ballot title for a citizen referendum to repeal Act 137 of 2015 (the Intrastate Commerce Improvement Act)?
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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
In 2015, the Arkansas General Assembly passed Act 137, the "Intrastate Commerce Improvement Act." The Act prohibited counties, municipalities, and other political subdivisions from adopting or enforcing any ordinance, resolution, rule, or policy that "creates a protected classification or prohibits discrimination on a basis not in state law." The text carved out a narrow exception for rules pertaining only to the political subdivision's own employees. The practical effect was to preempt local civil-rights ordinances that went beyond Arkansas's statewide protected classes. Act 137 became law on February 23, 2015, without the Governor's signature.
Attorney David Couch submitted a proposed referendum to the AG asking voters to repeal Act 137. He titled it "A Referendum to Repeal The Arkansas Intrastate Commerce Improvement Act." That framing is what the AG rejected.
The problem is structural. Under Article 5 of the Arkansas Constitution, a citizen referendum does not ask voters to "repeal" a statute. It puts the statute itself before voters for approval or rejection. A.C.A. § 7-9-105(a) confirms the form: the petition asks that the Act "be referred to the people . . . to the end that the same may be approved or rejected by the voters." A voter who wants the Act gone votes "AGAINST" approving it. A voter who wants the Act kept votes "FOR" approving it.
Mr. Couch's draft inverted that. By styling the question as "Repeal Act 137: FOR or AGAINST," a voter who wanted Act 137 repealed would mark "FOR" repeal, when in reality the Arkansas referendum mechanism would require that voter to mark "AGAINST" approval of Act 137. The AG quoted A.C.A. § 7-9-107(c)'s prohibition on a ballot title that frames the question "in such manner that a vote 'FOR' the issue would be a vote against the matter or viewpoint that the voter believes himself or herself casting a vote for." The proposal flatly did that, so the AG rejected the entire ballot title, popular name, and petition under § 7-9-107(c).
The opinion is short because the defect was structural and easy to fix: the sponsor needed to relabel the referendum to approve or reject Act 137 rather than to repeal it. The AG explicitly invited resubmission.
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
Article 5, Section 1 of the Arkansas Constitution reserves to the people "the power to approve or reject at the polls any entire act" of the General Assembly. A.C.A. § 7-9-105(a) lays out the form of a referendum petition: "We . . . respectfully order . . . that Act No. . . . be referred to the people . . . to the end that the same may be approved or rejected by the . . . voters." That language is the source of the "approve or reject" / "FOR or AGAINST" framing the AG insisted on.
A.C.A. § 7-9-107 makes the AG the gatekeeper for the popular name and ballot title. The AG can substitute a more suitable version, or, where the popular name and ballot title are sufficiently misleading, reject the entire petition. Section 7-9-107(c) specifically directs the AG to "reject the entire ballot title, popular name, and petition" where the ballot title would cause a vote "FOR" to be effectively a vote against the voter's intended position. That is the provision used in this opinion.
Prior AG opinions on the same issue: 2011-090 and 91-044, both cited for the proposition that a referendum is not framed as repeal.
Common questions
What is the difference between a referendum and an initiative in Arkansas?
An initiative starts with the people: voters propose a new statute or constitutional amendment that did not exist before. A referendum reacts to the legislature: voters challenge an act the General Assembly has already passed, asking the electorate to either approve or reject what the legislature did. The two procedures use different signature thresholds (6% for a referendum on a general act, 8% for an initiated statute, 10% for an initiated constitutional amendment).
Why can't a referendum just ask voters to "repeal" the statute?
Because the Arkansas Constitution and A.C.A. § 7-9-105 frame the question differently. The statute is the thing voters are evaluating. They are asked to approve or reject the Act. A "repeal" framing flips the polarity of the ballot question: people who want the law gone would vote "FOR" repeal, but under the constitutional referendum mechanism they need to vote "AGAINST" the Act. The AG concluded that mismatch would mislead voters at the polls.
What did Act 137 of 2015 actually do?
It prohibited any "county, municipality, or other political subdivision" from adopting or enforcing an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis "not contained in state law." The Act carved out an exception for internal employment rules of the political subdivision itself. Practically, it preempted local LGBT non-discrimination ordinances, since Arkansas state law at the time did not include sexual orientation or gender identity as protected classes. The Act took effect February 23, 2015, without the Governor's signature.
Could the sponsor try again with the same goal?
Yes. The opinion explicitly invites resubmission, and the structural defect was simple to fix: drop the "repeal" framing and write the ballot title in terms of approving or rejecting Act 137. The AG noted that she would "be pleased to again consider your measure should you wish to redesign and resubmit it."
What does A.C.A. § 7-9-107(c) require when the AG rejects a petition?
The AG must "state his or her reasons therefore and instruct the petitioners to redesign the proposed measure and the ballot title and popular name in a manner that would not be misleading." That is what this opinion does. It tells the sponsor specifically what the defect is and what to change. There is no time limit on resubmission, and no penalty.
Citations
Core authorities: Ark. Const. art. 5, § 1 (referendum power); A.C.A. § 7-9-105(a) (form of referendum petition); A.C.A. § 7-9-107 (AG certification); A.C.A. § 7-9-107(c) (rejection where FOR/AGAINST is reversed); A.C.A. § 7-5-522 (five-minute booth limit). The opinion also relies on the standard line of Arkansas Supreme Court ballot-title cases: Kurrus v. Priest (2000), Donovan v. Priest (1996), Plugge v. McCuen (1992), 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), and Arkansas Women's Political Caucus v. Riviere (1984). Prior AG opinions on referendum framing: 2011-090, 91-044.
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2015-030
April 8, 2015
David A. Couch
Attorney at Law
1501 North University, Suite 228
Little Rock, Arkansas 72207
Dear Mr. Couch:
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
referendum measure:
Popular Name
A REFERENDUM TO REPEAL
THE ARKANSAS INTRASTATE COMMERCE IMPROVEMENT ACT
Ballot Title
A referendum to repeal the Arkansas Intrastate Commerce
Improvement Act that prohibits a county, municipality, or other
political subdivision of the state from adopting or enforcing an
ordinance resolution, rule, or policy that creates a protected
classification or prohibits discrimination on a basis not in state law;
and provides that such prohibition does not apply to a rule or policy
that pertains only to employees of the county, municipality, or other
political subdivision.
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.
Ark. Code Ann. § 7-9-107 neither requires nor authorizes the Attorney General 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," the Attorney General 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 the entire ballot title, popular
name, and petition must be rejected. Contrary to your proposal's structure, a
statewide referendum is not an effort or question "to repeal" a measure; rather, it is
simply a means of putting a legislative enactment (here, Act 137 of 2015) before
the voters for approval or rejection. Your proposed ballot title, framing the
question as one of Act 137's repeal, therefore presents the issue "in such manner
that a vote 'FOR' the issue would be a vote against the matter or viewpoint that
the voter believes himself or herself casting a vote for," and vice versa. It is
likely, in other words, that under your formulation voters would believe
themselves to be voting "for" repeal, when in fact they would be voting to approve
Act 137, or to believe themselves to be voting "against" repeal, when in fact they
would be voting to reject Act 137. The law permits the Attorney General in such
circumstances to "reject the entire ballot title, popular name, and petition and state
his or her reasons therefore and to instruct the petitioners to redesign the proposed
measure and the ballot title and popular name in a manner that would not be
misleading." I will be pleased to again consider your measure should you wish to
redesign and resubmit it.
Sincerely,
LR/cyh
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