Did the Arkansas AG certify the popular name and ballot title for the proposed 2016 amendment shortening legislative term limits?

Plain-English summary

Brenda Taylor submitted a proposed constitutional amendment titled the "Arkansas Term Limits Amendment of 2016." It would have replaced the sixteen-year service cap in Amendment 94 with a stricter regime: no more than three two-year terms in the House, no more than two four-year terms in the Senate, and no more than ten years of total General Assembly service. It would have counted service back to January 1, 1993. It would have shielded any term to which a member was elected in November 2016 and any Senate term running at the effective date. It would have stripped the legislature of the power to propose constitutional amendments on legislative term limits, reserving that power to the people through Amendment 7's initiative process. And it would have included a severability clause.

The AG certified the popular name "Arkansas Term Limits Amendment of 2016" as submitted. For the ballot title, the AG used the statutory authority in Ark. Code Ann. § 7-9-107(b) to substitute a more accurate version. The substituted ballot title described the same six features but tightened the language around the ten-year cap (clarifying that no person could be elected "to any term that, if served, would cause the member to exceed a total of ten (10) years of service in the General Assembly") and around the treatment of partial terms served as a result of a vacancy special election under Ark. Const. art. 5, § 6.

The opinion stressed that certification did not endorse the policy. It also flagged that the longer and more complex an initiated amendment is, the more vulnerable its ballot title is to a court challenge, and warned the sponsor that any textual ambiguity could become a successful challenge.

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.

Common questions

What did Amendment 94 to the Arkansas Constitution do, and why was the sponsor trying to repeal part of it?

Amendment 94, adopted by Arkansas voters in 2014, set a cap of sixteen years of total combined service in the General Assembly. The sponsor of this 2016 proposal argued that sixteen years was too long and sought to bring Arkansas back closer to its earlier, stricter regime by reinstating per-chamber term limits plus a ten-year aggregate cap. The proposed amendment would have repealed Section 2(c) of Amendment 73 as added by Section 3 of Amendment 94, which contained the sixteen-year limit.

Why did the AG substitute a new ballot title instead of certifying the submitted one?

Under Ark. Code Ann. § 7-9-107(b) the AG may, if practicable, substitute a more suitable and correct ballot title. Here the AG kept the structure of the sponsor's title but tightened key phrases so the ten-year cap and the treatment of partial terms after a vacancy special election would be clearer to voters. The opinion did not say the original title was misleading, only that the substituted version was more accurate.

What is the ten-year cap, in plain terms?

A person could serve at most three two-year House terms (6 years), at most two four-year Senate terms (8 years), and at most ten years in the General Assembly overall, with House and Senate years added together. Full years of any partial term served because of a vacancy special election (when the partial term is longer than one year in duration) would count against the cap; shorter partial terms would not.

How did the proposed amendment treat sitting members at the time of adoption?

It would not have cut short or invalidated a term to which a legislator was elected in November 2016, or a Senate term that a senator was serving immediately before the effective date. The effective date in the text was January 1, 2017.

Why did the proposal try to lock the legislature out of touching term limits?

The sponsor wrote in Section 4 that, despite the legislature's general power under Ark. Const. art. 19, § 22 to propose constitutional amendments, the General Assembly could not propose any future amendment dealing with term limits for the House or Senate. That power was reserved to the people through Amendment 7's initiative process under Ark. Const. art. 5, § 1.

What did the AG say about the risk of a court challenge?

The opinion repeated the same cautionary note found across many Arkansas ballot-title opinions of this era: complex constitutional amendments tend to draw ballot-title challenges, and any ambiguity in the text can become the basis for a successful challenge in the Arkansas Supreme Court.

Background and statutory framework

The AG's review authority comes from Ark. Code Ann. § 7-9-107. Subsection (b) lets the AG substitute and certify a better title where practicable; subsection (c) lets the AG reject a sufficiently misleading proposal. Section 7-9-108 requires that canvasser instructions accompany the petition before circulation. Section 7-5-309 caps a voter at five minutes in the booth if others are waiting, which is the practical reason ballot titles must be brief.

The opinion applied the long line of Arkansas Supreme Court cases that frame ballot-title review. Pafford v. Hall described the popular name as primarily a useful legislative device. Bailey v. McCuen set the "essential fact which would give the voter serious ground for reflection" disclosure standard, the brief-and-concise requirement, and the not-required-to-be-perfect rule. Becker v. Riviere, Becker v. McCuen, May v. Daniels, and Christian Civic Action Committee v. McCuen developed the impartiality and intelligible-idea-of-scope requirements. Roberts v. Priest held that internal inconsistencies in the proposal can themselves defeat certification. Kurrus, Donovan, and Plugge supplied the "clearly contrary to law" carveout that excuses the AG from requiring proponents to acknowledge possible constitutional infirmities in the ballot title.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2013)
• Ark. Code Ann. § 7-9-107(b)
• Ark. Code Ann. § 7-9-107(c)
• Ark. Code Ann. § 7-9-108
• Ark. Code Ann. § 7-5-309
• Ark. Code Ann. § 5-55-601(b)
• Ark. Const. art. 5, § 1 (Amendment 7)
• Ark. Const. art. 5, § 6
• Ark. Const. art. 19, § 22
• Ark. Const. amend. 73 § 2(c)
• Ark. Const. amend. 94
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)

Source

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

Original opinion text

Opinion No. 2015-089
August 6, 2015

Brenda V. Taylor, Esq.
Attorney at Law
P.O. Box 8068
Fayetteville, AR 72703

Dear Ms. 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 following popular name and ballot title for a proposed initiated measure. You previously submitted a similar measure which I rejected in Opinion No. 2015-065. You have revised the ballot title and submitted the following proposed popular name and ballot title for my certification:

Popular Name

ARKANSAS TERM LIMITS AMENDMENT OF 2016

Ballot Title

A proposed amendment to the Arkansas Constitution concerning term limits for members of the Arkansas General Assembly; to provide that no person may be elected to more than three (3) two-year terms as a member of the House of Representatives, more than two (2) four-year terms as a member of the Senate, or more than ten (10) years as a member of the Arkansas General Assembly; to repeal the longer term limits of sixteen (16) years authorized by Amendment 94; to provide that the ten-year limit shall include two (2) and four (4) year terms, along with full years of partial terms of longer than one year in duration served as a result of a special election to fill a vacancy; to apply the limits to terms and service in the General Assembly on and after January 1, 1993; to provide that this amendment shall not cut short or invalidate a term for which a member of the General Assembly was elected in November 2016 or a term for which a member of the Senate was serving immediately prior to the effective date of the amendment; to provide that notwithstanding the General Assembly's authority to propose amendments to the Constitution, the General Assembly shall not have authority to propose an amendment to the Constitution on term limits for the House of Representatives or Senate, and to reserve that power to the people under Article 5, Section 1, as amended by Amendment 7; to declare that if any provision in this amendment should be held invalid, the remainder shall stand.

The Attorney General is required, pursuant to Ark. Code Ann. § 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.

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.

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, otherwise voters could run afoul of Ark. Code Ann. § 7-5-309'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 your popular name is certified as submitted, and that a more suitable, complete, and correct ballot title should be substituted for the one proposed. Thus, the following is hereby certified in order to ensure that, when construed together, the popular name and ballot title meet the legal requirements for a proposed constitutional amendment:

Popular Name

ARKANSAS TERM LIMITS AMENDMENT OF 2016

Ballot Title

A proposed amendment to the Arkansas Constitution concerning term limits for members of the Arkansas General Assembly; to provide that no person may be elected to more than three (3) two-year terms as a member of the House of Representatives, to more than two (2) four-year terms as a member of the Senate, or to any term that, if served, would cause the member to exceed a total of ten (10) years of service in the General Assembly; to repeal Section 2(c) of Amendment 73 that established a years-of-service limit on members of the General Assembly of sixteen (16) years; to provide that the ten-year service limit shall include all two (2) and four (4) year terms, along with full years of any partial term served as a result of a special election to fill a vacancy; to apply the limits to terms and service in the General Assembly on and after January 1, 1993; to provide that this amendment shall not cut short or invalidate a term to which a member of the General Assembly was elected in November 2016 or a term that a member of the Senate was serving immediately prior to the effective date of this amendment; to provide that notwithstanding the General Assembly's constitutional authority to propose amendments to the Constitution, the General Assembly shall not have the authority to propose an amendment to the Constitution regarding term limits for the House of Representatives or Senate, and to continue reserving that power to the people under Article 5, Section 1, as amended by Amendment 7; and to declare that if any provision of this amendment should be held invalid, the remainder shall stand.

I believe a cautionary note is warranted, however, in light of the significance and complexity of the subject matter undertaken, that is, the reinstitution of term limits for members of the General Assembly and the imposition of a stricter years-of-service limit than is allowed under current law. You should be aware that experience has shown that there is a direct correlation between the length and complexity of initiated constitutional amendments and their susceptibility to successful ballot title challenges. Any ambiguity in the text of a measure could lead to a successful challenge.

Pursuant to Ark. Code Ann. § 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: Instructions to Canvassers and Signers; full text of the proposed amendment as set out in the official PDF, including Section 1 (Term Limits), Section 2 (Temporary application), Section 3 (repealing Section 2(c) of Amendment 73), Section 4 (Amendment), Section 5 (Severability), and Section 6 (Effective date).]