Did the Arkansas AG certify the first Arkansas Term Limits Amendment of 2016 proposal in June 2015?

Plain-English summary

Brenda Taylor submitted a proposed constitutional amendment called the “Arkansas Term Limits Amendment of 2016.” The proposed ballot title described limits of three two-year House terms, two four-year Senate terms, and ten years of combined legislative service. The Attorney General rejected the submitted ballot title because ambiguities in the measure and omissions from the title kept her from fairly summarizing its effect for voters.

The AG identified three ambiguities in the proposal. It used an enacting clause required for initiated bills but not for constitutional amendments, creating confusion about the type of measure. It said it would amend Article 5, section 2, while treating Senate language from Article 5, section 3 and term-limit language from Amendment 73 as though both were already in section 2. And its clause protecting terms obtained before January 1, 2017 did not say clearly which legislators it covered or when service would start counting.

The proposed ballot title also failed to describe significant changes the AG saw in the text. She pointed to the proposed removal of language added by Amendment 94, treatment of a future Senate term after apportionment as a four-year term, and a provision apparently limiting future changes to citizen-initiated amendments. She said voters needed a clear account of how these provisions would change current law.

The AG told Taylor to redesign the measure and title and said she could resubmit after clarification. This opinion records no later submission or certification.

Currency note

This opinion reviews a proposal as submitted in June 2015. It does not establish that a revised measure was certified or became law. Check the election record and current constitution for those questions.

Background and statutory framework

Ark. Code Ann. § 7-9-107 governs AG review of proposed popular names and ballot titles. The AG said she could substitute clearer wording when practicable, but the ambiguities here prevented her from certifying a substitute. A title must give voters an intelligible understanding of the proposed change from existing law.

The opinion distinguishes an initiated bill, which requires an enacting clause under Article 5, section 1, from an initiated constitutional amendment. It also explains that the proposed text aimed at the wrong constitutional location and left the effective reach of its term limits uncertain. These are problems in the measure itself, so the AG could not resolve them simply by rewriting the title.

Common questions

Why did the enacting clause matter?
The proposal was labeled a constitutional amendment but included wording required for an initiated bill. The AG said that could confuse voters about what they were being asked to approve.

What was wrong with the Article 5 reference?
The proposal purported to amend Article 5, section 2, yet included Senate language from section 3 and sought to strike term-limit language located in Amendment 73 after Amendment 94. The AG could not tell precisely what constitutional text would change.

Why was the January 1, 2017 clause unclear?
The clause protected a term obtained before that date but did not specify which legislators it covered or when terms and years of service would begin counting.

Did the AG reject the policy of stricter term limits?
No. She said her office did not judge the merits of proposed measures. The rejection concerned clarity of the text and the ballot title's explanation to voters.

Could the sponsor try again?
Yes. The AG expressly invited resubmission after the identified ambiguities were clarified. The opinion itself does not report what happened later.

Source

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

Original opinion text

Opinion No. 2015-065
June 25, 2015

Brenda V. Taylor, Esq.
Brenda Vassaur Taylor, P.A.
P.O. Box 8068
Fayetteville, AR 72703

Dear Mrs. Taylor:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Please note that 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 Ark. Code Ann. § 7-9-107 (Supp. 2013), of the popular name and ballot title for a proposed constitutional amendment. You have submitted the following popular name and ballot title for my review:

Popular Name

ARKANSAS TERM LIMITS AMENDMENT OF 2016

Ballot Title

A proposed amendment to Arkansas Constitution concerning term limits for the Arkansas General Assembly; to provide that service shall not exceed three (3) two-year terms in the House of Representatives, two (2) four-year terms in the Senate, or ten (10) years of combined service in the House of Representatives and Senate; to clarify that a person is ineligible for election to the Senate if the term would cause the person to exceed the ten-year limit; to exclude, from the computation of whether a limit has been reached, a partial term to fill a vacancy; to provide that this amendment will not cut short or invalidate a term to which a person was elected prior to January 1, 2017; to provide that Article 5, section 2 may be amended only by a constitutional amendment initiated by the people; to declare that if any provision in Article 5, section 2 should be held invalid, the remainder shall stand.

[The opinion then sets out the standard ballot-title framework (purpose of review, role of the popular name, requirements for the ballot title, the essential-fact rule, the brief-and-concise rule, the misleading-tendency standard, and Roberts v. Priest's rule on internal inconsistencies in the proposed measure).]

Having analyzed your proposed amendment, as well as your proposed popular name and ballot title in line with the above precepts, it is my conclusion that I must reject your proposed ballot title due to deficiencies in the text of your proposed measure, as well as a failure to summarize in your ballot title how your measure would change current law. A number of additions or changes 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 deficiencies. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b).

I refer to the following ambiguities:

1. [Misplaced enacting clause.] According to the text of your proposal, you are seeking to amend the Arkansas Constitution. However, your proposed constitutional amendment includes an "enacting clause" ("Be it enacted by the people of the State of Arkansas"). While Article 5, section 1 of the Arkansas Constitution requires the inclusion of an enacting clause for "bills" initiated by the people (that is, proposed initiated acts), there is no such requirement for constitutional amendments so initiated. The inclusion of an enacting clause that is required for a "bill" in a proposed constitutional amendment makes the proposal ambiguous as to what the voters are being asked to consider, a bill or a constitutional amendment. This could be confusing to the voters.

2. [Wrong constitutional location.] It is clear from the text of your proposal that you wish to amend the Arkansas Constitution with respect to term limits. However, the prefatory language in section 1 of your proposal states that the proposal would amend Article 5, section 2 of the constitution. This reference to this specific part of the constitution makes the text of your proposal ambiguous for the following reasons. You have included language that by virtue of its not being underlined suggests that it is already a part of Article 5, section 2 (your subsection (b) concerning the Arkansas Senate). That language is not found in Article 5, section 2, but is instead a part of Article 5, section 3. Similarly, the end of your text contains stricken language regarding legislators' years of service limitations in a way that suggests that it is subsection (c) of Article 5, section 2. However, there is no subsection (c) of Article 5, section 2, and thus no such language could be stricken from it. The years-of-service limitation language instead was made a part of Amendment 73, section 2 with the passage of Amendment 94 in 2014. This gives rise to uncertainty as to the precise changes in law under your proposal, including the part of the constitution actually being amended.

3. [Vague effective date.] Your ballot title states, as does the text in your proposed subsection (c)(3), that your proposal "will not cut short or invalidate a term to which a person was elected prior to January 1, 2017." I am uncertain what this is intended to convey or to whom it is meant to apply. It might be interpreted to refer only to those legislators who won re-election in November 2016 under the auspices of Amendment 94, but whose terms would run afoul of the terms of your proposal should it be adopted. Or, it might be interpreted to refer to any legislator seeking election after January 1, 1993, per the terms of section 6 of Amendment 73. Uncertainty arises in this regard because there is no language in your measure addressing when the counting of terms or the years of service is to commence, or to which class of legislators or former legislators your proposal applies. [Citing United States Term Limits, Inc. v. Hill, which addressed the analogous Amendment 73 ambiguity by reading the amendment to apply prospectively to periods of service commencing on or after January 1, 1993, citing Drennen v. Bennett.]

The above ambiguities must be clarified so that these important aspects of your proposed measure may be properly reflected in a ballot title that fully and fairly summarizes the measure. Clarifying these ambiguities is also critical to a ballot title that will sufficiently inform the voters about the changes in current law that they are being asked to approve.

In addition to the ambiguities above, I also note several significant changes to the law your proposal would make. As stated above, the ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law. [Citing Bradley v. Hall on the duty to describe changes in the law.] Your proposed ballot title contains no information about the changes brought about by your proposal. Your ballot title must, in my opinion, be redesigned to reflect the following significant changes:

1. As I have previously noted, Section 3 of Amendment 94 appears stricken at the very end of the text of your proposed measure. … This significant change in the law is not reflected in the ballot title you have proposed.

2. The text of your proposed subsection (c)(1)(C)(ii) regarding eligibility for election to the Senate states that a "a future term after apportionment will be considered to be a four-year term." This also represents a significant change in the law of which there is no mention in the ballot title. [Discussing the current Amendment 94 treatment of two-year Senate terms after reapportionment, citing Williams v. Elrod and Moore v. McCuen.]

3. Your proposed new subsection (d), titled simply "Amendment," states that "[t]his Section 2 may be amended only by a constitutional amendment initiated by the people under Arkansas Constitution Article 5, Section 1, as amended by Amendment 7." [P]resumably [this] is intended to prevent the General Assembly from submitting to the voters future proposed constitutional amendments regarding term limits. This too represents a significant change in the law of which the voters must clearly be made aware. … [Y]our proposal would seemingly represent an amendment by implication of Article 19, section 22 of the constitution. This significant change in the law must be adequately summarized for the voters and properly reflected in the ballot title.

Without the necessary information regarding the extent to which your proposal would change current law, it will be impossible for a voter to make an informed "choice between retention of the existing law and the substitution of something new." Your ballot title must be redesigned to reflect these significant changes in current law. I must therefore reject your ballot title as insufficient on this basis, as well as on the basis of the above ambiguities that prevent me from certifying a revised ballot title for your 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 Ark. Code Ann. § 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, after clarification of the matters discussed above, resubmit your proposed constitutional amendment along with a proposed popular name and ballot title at your convenience.

LESLIE RUTLEDGE
Attorney General
LR/cyh

[Enclosure: Popular name "Arkansas Term Limits Amendment of 2016" and the full proposed amendment text, including the misplaced enacting clause and the strikethrough text targeting nonexistent subsections of Article 5, § 2, as set out in the official PDF.]