Did the Arkansas AG certify Robert Reed's proposed constitutional amendment to legalize cannabis cultivation, sale, and possession statewide?
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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
Robert Reed, a lobbyist, repeatedly tried to get a proposed constitutional amendment in front of Arkansas voters that would have legalized cannabis cultivation, manufacturing, distribution, sale, possession, and use throughout the state effective April 20, 2017. By the time this opinion was issued, his office had submitted ten prior versions: nine were rejected (2014-043, 2014-037, 2014-034, 2014-022, 2014-014, 2013-093, 2013-021, 2011-059, and 2011-031), and one (2014-056) had its popular name certified with a substituted ballot title. He revised the text again and resubmitted under the same popular name, "The Arkansas Industrial Hemp and Medical Cannabis Amendment."
AG Leslie Rutledge rejected the latest version too. She identified four substantive ambiguities in the measure itself, plus a general complaint that the text contained spelling and syntax errors that obscured its meaning.
First, the proposal labeled its categories "industrial" hemp and "medical" cannabis, but the operative text did not restrict their use to industrial or medical purposes. Slapping "medical" onto a defined term that then permits general recreational use would mislead voters about what they were authorizing.
Second, Sections 3 and 4 defined hemp and cannabis by THC content of "three tenths of one percent (.03%)." Three tenths of one percent is 0.3%, not 0.03%. The numeric expression and the words say different things, and the AG could not tell which the drafter meant.
Third, the THC threshold was given in two units (dry weight and liquid volume), and the text did not say whether those were alternative tests for the same substance or different tests applied to different forms (plant matter vs. extracts and oils).
Fourth, Section 7 limited "plants cultivated for personal medical use" to "no less than ten (10) plants per person." Two ambiguities ran through that one sentence. It set a floor (no less than ten) without a ceiling, so it was unclear whether the General Assembly could raise the limit higher or could only adjust within some implied range. And the section only addressed personal medical use, leaving non-personal cultivation of "medical cannabis" with no limit at all.
Because all of those went to the substantive content of the measure, the AG could not write a ballot title that accurately summarized it. She rejected the submission under A.C.A. § 7-9-107(c) and told Mr. Reed to redraft.
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
Under A.C.A. § 7-9-107, sponsors of initiated constitutional amendments must submit the proposed popular name and ballot title to the Attorney General for review before circulating petitions. The AG either certifies them, substitutes and certifies a more suitable version, or rejects the submission. Where the proposed measure is itself ambiguous, Roberts v. Priest, 341 Ark. 813 (2000), holds that no ballot title can accurately summarize it; the AG must reject under § 7-9-107(c) and the sponsor must redraft.
The standard for ballot-title sufficiency comes from cases including Bailey v. McCuen, 318 Ark. 277 (1994) (any essential fact giving the voter "serious ground for reflection" must be disclosed); Becker v. Riviere, 270 Ark. 219 (1980) (the title must convey an impartial summary); and Becker v. McCuen, 303 Ark. 482 (1990) (the title must be honest and impartial and convey an intelligible idea of the scope of change). Brevity is also required because A.C.A. § 7-5-522 caps voter time in the booth at five minutes.
This opinion is one in a long sequence of rejections of cannabis amendments by the AG's office. The sequence reveals how repeated drafts get whittled down by the certification process: an unsuccessful sponsor either gives up, or eventually produces a measure clean enough to put before voters. (A separate medical-marijuana measure from a different sponsor did go to the 2016 Arkansas ballot and was approved.)
Common questions
What is the difference between certifying a popular name and a ballot title?
The popular name is a short caption that helps voters identify the measure quickly (here: "The Arkansas Industrial Hemp and Medical Cannabis Amendment"). The ballot title is the longer summary that appears on the ballot and tells the voter, in plain language, what voting yes or no will do. The AG reviews both under A.C.A. § 7-9-107. Both must be honest, impartial, and not misleading.
Why does an ambiguous measure prevent certification, instead of the AG just rewriting the title?
The AG's substitute power under A.C.A. § 7-9-107(b) only lets her certify a more suitable summary of what the measure actually says. If the measure itself is unclear, two different ballot titles could both be defensible summaries, and a court could later strike the measure down because the title misled voters. Roberts v. Priest (2000) settled this: when the underlying text is ambiguous, the AG sends it back rather than papering over the problem.
Was the AG taking a position on cannabis legalization?
No. The opinion opens with the standard disclaimer that the AG has no authority to consider the merits of a proposed measure. The rejection was about whether voters would understand what they were signing on the petition and voting on at the polls, not about whether cannabis should be legalized.
What does "three tenths of one percent (.03%)" actually mean?
Three tenths of one percent equals 0.3% (point three percent), not 0.03% (point oh three percent). The proposed measure put both side by side as if they were the same number. They are not. That is a ten-fold difference in THC content, and it would have been a significant operational ambiguity if the measure had passed: the federal definition of industrial hemp at the time used 0.3% as the dividing line.
Could the sponsor try again after this rejection?
Yes. A.C.A. § 7-9-107(c) lets the AG instruct the sponsor to redesign the measure, and the sponsor can resubmit at any time. The opinion makes clear that nine prior rejections did not bar this submission, and this rejection does not bar a future one. The procedural cost is essentially zero except for the sponsor's time to redraft.
Citations
The opinion's core statute is A.C.A. § 7-9-107, the ballot-title certification statute. It applies the Arkansas Supreme Court standards in 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). It references prior AG opinions in the same sponsor's series: 2014-043, 2014-037, 2014-034, 2014-022, 2014-014, 2013-093, 2013-021, 2011-059, 2011-031, and 2014-056.
Source
Original opinion text
Opinion No. 2015-032
April 13, 2015
Robert L. Reed, Lobbyist
Post Office Box 111
Dennard, Arkansas 72629
Dear Mr. Reed:
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
constitutional amendment. You previously submitted similar measures, most of
which this office rejected. See Op. Att'y Gen. Nos. 2014-043, 2014-037, 2014-
034, 2014-022, 2014-014, 2013-093, 2013-021, 2011-059 and 2011-031. In Op.
Att'y Gen. No. 2014-056, this office certified your proposed popular name and a
substituted ballot title. You have made changes to the text of the measure and
resubmitted your proposed popular name and ballot title, as follows:
Popular Name
THE ARKANSAS INDUSTRIAL HEMP AND MEDICAL CANNABIS AMENDMENT
Ballot Title
An amendment proposed by the people to the Arkansas Constitution
to provide effective April 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,
"industrial hemp" is defined as any part of the cannabis plant (genus
cannabis), living or not, containing three tenths of one percent
(.03%) or less, by dry weight or three tenths of one percent (.03%)
by volume for liquids, Delta-9-Tetrahydrocannabinol (Delta-9-
THC); "medical cannabis" is defined as any part of the cannabis
plant (genus cannabis), living or not, containing greater than three
tenths of one percent (.03%), by dry weight or volume for liquids,
Delta-9-Tetrahydrocannabinol (Delta-9-THC). That the cannabis
plant (genus cannabis) may be regulated but not prohibited by the
General Assembly; the number of plants cultivated for personal
medical use shall be regulated to no less than ten (10) plants per
person, and, that all laws in conflict with the amendment are
repealed to the extent that they conflict with his [sic] amendment.
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.
Having analyzed your proposed amendment, 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 ambiguities in the text of
your proposed measure. A number of 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 ambiguities. 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).
I refer to the following ambiguities:
The proposal refers to and defines "industrial" hemp and "medical"
cannabis, but does not expressly restrict the substances' use to industry or
medicine. The use of those modifiers introduces ambiguity about the uses that are
intended to be permitted.
The proposal equates the words "three tenths of one percent" and the numeric
expression ".03%." The two are not in fact equal, so your intent is impossible to
determine.
It is unclear whether "dry weight" and "liquid volume" are intended to be
alternative methods of determining THC content of a given substance, or whether
each is intended to be used exclusively with respect to certain types of substances.
Section 7 of the proposal is unclear and ambiguous in providing for a limit on the
number of plants "cultivated for personal medical use" while not providing for any
limit on the number of "medical cannabis" plants cultivated for other use.
Additionally, it is unclear whether the ten-plant limit is intended to be a set limit or
a floor limiting regulation to be imposed by the General Assembly.
Finally, amending the Arkansas Constitution is a serious matter that merits
greater attention to detail than evidenced by the proposal, which contains several
errors of spelling and syntax that tend to obscure its meaning. I urge you to review
the proposal carefully to locate and correct such errors in the event you redesign
and resubmit the proposal.
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 reasons 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,
LESLIE RUTLEDGE
Attorney General
LR/cyh
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