Did the Arkansas AG certify the popular name and ballot title for a revised proposal to add age, veteran or military status, sexual orientation, and gender identity to the Civil Rights Act?

Plain-English summary

In Arkansas, anyone who wants to put an initiated act or constitutional amendment on the statewide ballot has to first get the Attorney General to certify the proposal's "popular name" (a short caption) and "ballot title" (the longer voter-facing summary). A.C.A. § 7-9-107 makes that pre-certification mandatory before signature gathering begins. The AG's job is narrow: confirm that the popular name and ballot title accurately, impartially, and intelligibly summarize the measure for voters. The AG does not assess whether the underlying policy is a good idea.

Mr. Weir submitted a revised proposed initiated act to amend the Arkansas Civil Rights Act of 1993. The earlier version, certified by the AG only two weeks before this opinion in Op. Att'y Gen. 2015-029, would have added "sexual orientation" and "gender identity" as protected classes. The revised proposal added two more: "age" and "veteran or military status." Mr. Weir kept the same popular name as the certified version: "An Act Amending the Arkansas Civil Rights Act of 1993."

AG Leslie Rutledge rejected both the popular name and the ballot title.

The popular name was rejected because reusing the identical name for a different proposed measure (one that adds four protected classes, not two) would confuse voters when both petitions were in circulation. Voters would not be able to tell from the popular name alone which version they were signing.

The ballot title was rejected because the phrase "veteran or military status" was ambiguous in two ways. First, it was unclear whether "veteran" and "military status" referred to one combined class or two separate ones. Second, "military status" had at least two plausible readings: one broad (everyone has a military status, including those who never served), one narrow (only people who have served or are currently serving). That ambiguity made it impossible for the AG to write a single ballot title that voters could understand without further clarification of the underlying measure.

Because the underlying measure itself was ambiguous, the AG declined to substitute and certify a more suitable name and title under A.C.A. § 7-9-107(b). The sponsor was instructed to redesign the measure and resubmit.

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 makes the Arkansas Attorney General the gatekeeper for ballot titles on citizen-initiated measures. Before circulating any petition, the sponsor submits the proposed popular name and ballot title. The AG either certifies them, substitutes and certifies a more suitable version, or rejects the submission entirely. The Arkansas Supreme Court has set the standards the AG applies. The popular name "must not be misleading or give partisan coloring to the merit of the proposal" (Chaney v. Bryant, 259 Ark. 294 (1976)). The ballot title "must include an impartial summary" that gives the voter a fair understanding of the issues, and any "essential fact which would give the voter serious ground for reflection" must be disclosed (Bailey v. McCuen, 318 Ark. 277 (1994)). The title must also be concise enough to be read inside the five-minute booth limit in A.C.A. § 7-5-522.

Where the proposed measure itself is internally ambiguous or inconsistent, the AG cannot fix the ballot title by rewording it. Roberts v. Priest, 341 Ark. 813 (2000), held that confusion in the underlying measure flows into the ballot title and prevents certification. The remedy is to send the sponsor back to redraft the substantive text.

Common questions

Can the same popular name be used for two different measures circulating at the same time?

No. The AG concluded that reusing the popular name "An Act Amending the Arkansas Civil Rights Act of 1993" for a different version of the proposal (one that added more protected classes) would mislead voters. The popular name is the short caption that lets voters tell competing measures apart, so an identical name across two distinct measures undermines its purpose.

Why was "veteran or military status" considered ambiguous?

The AG identified two ambiguities. First, the phrase could refer to one combined class (people with "veteran or military status" as a single category) or to two separate classes (veterans plus people with some other "military status"). Second, "military status" itself had two readings: a broad reading where every person has a status (served, never served, or currently serving), and a narrow reading limited to people who have served or are currently serving. Those two readings would produce different protected classes under the amended civil rights statute.

Why didn't the AG just fix the ballot title herself?

Under A.C.A. § 7-9-107(b), the AG can substitute a more suitable title only if she can write one that accurately summarizes the measure. When the underlying measure is itself ambiguous, no ballot title can accurately summarize it. Roberts v. Priest forbids certifying a ballot title in those circumstances. The AG's only options were to reject the submission and instruct the sponsor to redraft.

What happens after a rejection like this?

A.C.A. § 7-9-107(c) lets the AG state her reasons and instruct the sponsor to redesign the proposed measure, popular name, and ballot title. The sponsor can resubmit at any time. There is no time limit and no penalty for a rejection. The same sponsor here, Mr. Weir, had already gone through one round of rejection and revision before getting Op. 2015-029 certified, and continued cycling through versions after this rejection as well.

Does an AG rejection mean the AG opposes the policy?

No. The opinion opens with the standard disclaimer: "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." The review is purely about whether voters would understand what they are voting on.

Citations

The opinion relies on A.C.A. § 7-9-107 (the ballot-title certification statute) and a long line of Arkansas Supreme Court cases interpreting it: 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). The Civil Rights Act provision that would have been amended is A.C.A. § 16-123-107(a).

Source

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

Original opinion text

Opinion No. 2015-035
April 16, 2015
Jack M. 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. You have previously submitted a similar measure that my office revised and certified, as evidenced by Op. Att'y Gen. 2015-029. You have not indicated that this certified measure is to be withdrawn, but you have since made additional changes to the measure and submitted a revised ballot title for my certification. Your proposed popular name and ballot title state:

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 age, veteran or military status, 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, 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.

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 either the proposed popular name or the ballot title is sufficiently misleading, the Attorney General may reject the entire petition.

Section 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, I conclude (1) that I must reject your proposed popular name because it is identical to one in a different measure I certified on March 31, 2015; and (2) that I must reject your proposed ballot title due to ambiguities in the text of your proposed measure. 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).

In Opinion No. 2015-029, I certified the popular name for your previous proposal, which seeks to amend the Arkansas Civil Rights Act to add a right to be free from discrimination on the basis of both "sexual orientation" and "gender identity." The popular name for that certified proposal is "An Act Amending the Arkansas Civil Rights Act of 1993." Your current proposal uses the same popular name to refer to a proposed measure that goes beyond adding "sexual orientation" and "gender identity" to also adding "age" and "veteran or military status." Having two different proposed measures that share the same popular name will confuse voters and does not comply with the foregoing precepts governing a popular name. Accordingly, I am unable to certify the popular name as submitted.

In addition, I am unable to certify the ballot title as submitted because the phrase "veteran or military status" is ambiguous in two ways. First, it is not clear whether the terms are being used synonymously or cumulatively. In other words, it is not clear whether the phrase refers to a single class of people or two different classes of people. Second, it is not clear what is meant by "military status." When read in one sense, every person has a military status, one has either served in the military, never served, or is currently serving. If the term "military status" were read in this broad sense, then the proposed measure would be saying that a person's military service (or lack thereof) cannot be the basis for discrimination. Yet the term "military status" can be read in a more narrow sense to only refer to persons who have served or are currently serving in the military. This ambiguity renders the provision's effect on current law unclear and prevents me from ensuring that the proposed ballot title accurately summarizes the measure.

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