Did the Arkansas AG certify the popular name and ballot title for a referendum to approve or reject 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
David A. Couch submitted a proposed referendum to approve or reject Act 137 of 2015, the Arkansas Intrastate Commerce Improvement Act. The Act prohibited Arkansas counties, cities, and other political subdivisions from adopting or enforcing ordinances that created protected classifications or prohibited discrimination on bases not contained in state law. Act 137 had been enacted by the 90th General Assembly and become law on February 23, 2015. A referendum would put it to a popular vote.
The AG certified the popular name as submitted: "A REFERENDUM TO APPROVE OR REJECT THE ARKANSAS INTRASTATE COMMERCE IMPROVEMENT ACT." The popular name was clear, neutral, and accurately framed the question.
The AG substituted a new ballot title because the proposed version, while not misleading, could be made clearer. The certified ballot title:
This referendum enables the people to vote for or against the Arkansas Intrastate Commerce Improvement Act, enacted by the 90th General Assembly as Act 137 of 2015 (the "Act"). A vote "FOR" will approve the Act; a vote "AGAINST" will reject the Act.
The Act provides:
(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.
(b) This section does not apply to a rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.
The substituted title is structurally cleaner. It makes the FOR/AGAINST mechanic explicit, gives readers the actual statutory text of Act 137, and preserves the employee exception in subsection (b). The original proposal had been a single paragraph that was harder to parse.
Act 137 was politically significant. Several Arkansas cities (Little Rock, Fayetteville, Hot Springs, Eureka Springs) and Pulaski County had adopted or were considering ordinances providing nondiscrimination protections on the basis of sexual orientation and gender identity (SOGI). Sexual orientation and gender identity are not listed protected classes in Arkansas state law. Act 137's general bar on local protected classifications "on a basis not contained in state law" would invalidate those local SOGI ordinances. (Op. 2015-088 later confirmed that Act 137 preempted the specific Little Rock, Fayetteville, Hot Springs, Eureka Springs, and Pulaski County SOGI ordinances.)
The referendum gathered signatures but did not appear on the ballot.
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
The Arkansas referendum process traces to Amendment 7 to the Arkansas Constitution (codified at Art. 5, § 1). The people may petition to refer "any general act or any item of an appropriation bill or measure passed by the General Assembly" to a popular vote, on a petition of 6% of legal voters. The Attorney General's certification under Ark. Code Ann. § 7-9-107 is the first step.
Act 137 of 2015 (codified at Ark. Code Ann. § 14-1-401 et seq.) created the Intrastate Commerce Improvement Act. The statutory text, quoted in the certified ballot title, is short:
§ 14-1-403. Prohibited conduct.
(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.
(b) This section does not apply to a rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.
The Act also contained an emergency clause invoking the General Assembly's finding that "there are seventy-five (75) counties and five hundred (500) cities and towns in the state; that each county, city, and town can create its own local system for dealing with discrimination; and that this act is immediately necessary to create uniformity regarding discrimination laws across the state." The Act became effective on February 23, 2015, without a Governor's signature (Governor Hutchinson allowed it to become law without signing).
The substantive effect of Act 137 was to invalidate local SOGI nondiscrimination ordinances, because sexual orientation and gender identity were not (and as of 2015 are not) listed protected classes in Arkansas state law. Several Arkansas cities had adopted such ordinances in 2014-2015, and Act 137 was enacted in direct response.
The subsection (b) carve-out (rules or policies pertaining only to a subdivision's own employees) preserves the ability of cities and counties to set their own employment policies, including non-discrimination policies covering their own workforce. The carve-out does not extend to general-applicability ordinances regulating private parties' conduct (employers, businesses, places of public accommodation).
The AG's role under § 7-9-107 in a referendum context is the same as for initiated acts: ensure the popular name and ballot title accurately and impartially summarize the proposal. Here, the proposal is to put Act 137 to a popular vote, so the title summarizes Act 137's effect.
Common questions
Did the referendum succeed?
The referendum was certified but did not appear on the ballot. The proponents would have needed signatures from 6% of legal voters in Arkansas. The petition apparently did not gather sufficient signatures to qualify.
Does Act 137 still prevent local SOGI ordinances?
Op. 2015-088 (later in 2015) confirmed that Act 137 preempted the specific local SOGI ordinances of Little Rock, Fayetteville, Hot Springs, Eureka Springs, and Pulaski County. The Arkansas Supreme Court later addressed Act 137's reach in Protect Fayetteville v. City of Fayetteville (2018), upholding Fayetteville's ordinance to the extent it tracked state-law protected classes. Litigation in this area has continued.
Why did the AG substitute the ballot title rather than reject it?
The original was not misleading, just less clear. § 7-9-107 lets the AG substitute when better drafting can improve the title. Rejection is reserved for cases where the underlying text is itself ambiguous (as in Op. 2015-041 and Op. 2015-042).
Who is David A. Couch?
A Little Rock attorney involved in several Arkansas ballot measures during this period. His involvement here was as the proponent of the Act 137 referendum.
What does the "creates a protected classification" language mean?
A "protected classification" in nondiscrimination law is a category like race, sex, religion, national origin, age, or disability, in which discrimination is barred. Act 137 prohibits local governments from creating new protected classifications (like sexual orientation or gender identity) that are not in state law.
Why doesn't the AG note these substantive points in the ballot title?
Because the AG's job under § 7-9-107 is to summarize the Act, not to characterize its policy effects. The ballot title quotes the statutory text and lets voters draw their own conclusions about its impact.
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2015-036
April 23, 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 APPROVE OR REJECT THE ARKANSAS INTRASTATE COMMERCE IMPROVEMENT ACT
Ballot Title
A referendum to approve or reject 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 opinion's body sets out the standard ballot-title sufficiency principles from Arkansas Women's Political Caucus v. Riviere, Pafford v. Hall, Chaney v. Bryant, Moore v. Hall, May v. Daniels, Becker v. Riviere, Bailey v. McCuen, Becker v. McCuen, Christian Civic Action Committee v. McCuen, and Roberts v. Priest.]
Applying the above precepts, it is my conclusion that your proposed popular name is sufficient and it is therefore certified as submitted. In my judgment, however, a more suitable, complete, and correct ballot title should be substituted for that proposed. The following ballot title is hereby certified in order to ensure that, when construed together, the popular name and ballot title accurately set forth the purpose of the proposal:
Popular Name
A REFERENDUM TO APPROVE OR REJECT THE ARKANSAS INTRASTATE COMMERCE IMPROVEMENT ACT
Ballot Title
This referendum enables the people to vote for or against the Arkansas Intrastate Commerce Improvement Act, enacted by the 90th General Assembly as Act 137 of 2015 (the "Act"). A vote "FOR" will approve the Act; a vote "AGAINST" will reject the Act.
The Act provides:
(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.
(b) This section does not apply to a rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.
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 of 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.
Sincerely,
LESLIE RUTLEDGE
Attorney General
LR/cyh
Enclosures
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