Did the Arkansas AG approve the 'Curtail Amendments' ballot title for the 2016 measure limiting the legislature to one proposed constitutional amendment per session?

Plain-English summary

Frederick Scott, sponsoring on behalf of the Little Red Hen Committee, submitted a proposed constitutional amendment called "Curtail Amendments." It would have amended Ark. Const. art. 19, § 22 to cut the number of constitutional amendments the legislature could propose at one time from three to one. It would also have required that "[t]he heading or ballot title" of any legislatively referred amendment begin with the sentence: "An amendment to the Arkansas Constitution as proposed by the Arkansas General Assembly." And it would have required that ballot title to be "written or approved by a committee composed of the Lieutenant Governor, the Speaker of the House and the Attorney General," with the Secretary of State doing it instead if the committee could not reach agreement in a timely manner.

The AG rejected the submission for five ambiguities:

1. The phrase "heading or ballot title" was unclear. It could mean a heading and a ballot title are alternatives, or it could mean the words are synonymous. The body of the proposal then referred only to "the ballot title," which deepened the confusion.

2. It was also unclear whether the proposal was trying to create a brand-new ballot title requirement for legislatively referred amendments. Under existing law (Becker v. Riviere), legislative referrals did not need a constitutional ballot title at all; the legislature could (but did not have to) designate one by statute under Ark. Code Ann. § 7-9-204.

3. There was a deeper question about what the new heading or ballot title would be for. Was it to identify the referred amendment so voters could recognize it on the ballot, mirroring the existing identification requirement for Article 19, § 22 measures? Or was it to inform voters with the same impartial-summary standard the courts apply to Amendment 7 citizen initiatives? The two functions have different legal standards, and the proposal did not say which it meant.

4. The phrase "written or approved" repeated the same alternatives-or-synonyms ambiguity. If "written" was distinct from "approved," then someone other than the named committee would draft the title and the committee would just sign off, but the proposal did not say who that initial drafter would be. The sponsor's own proposed ballot title for this measure used the word "writes" only, not "approves," which deepened the disconnect.

5. The submitted ballot title told voters the amendment would "establish that legislative amendments may not be proposed during the fiscal session or special sessions." That was misleading, because Ark. Const. art. 19, § 22 already limits legislatively proposed constitutional amendments to "regular session[s]" of the General Assembly. The proposal would not be changing that; it would be restating existing law in a way that suggested it was a new restriction.

Because the ambiguities lived in the text of the proposed measure itself, the AG could not substitute and certify a better ballot title under Ark. Code Ann. § 7-9-107(b); only the sponsor could fix the underlying text. The opinion invited the sponsor to redesign 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.

Common questions

What is Article 19, § 22 of the Arkansas Constitution?

It is the provision that lets either house of the General Assembly, at a regular session, propose amendments to the state constitution. As written in 2015, it capped the number of amendments the legislature could submit at the same time at three and required each to be submitted so the electors could vote on each separately. The Little Red Hen proposal would have cut that limit from three to one, leaving in place the existing "regular session" and "separate vote" requirements.

Do legislatively referred amendments currently need a ballot title?

Not constitutionally. Under Becker v. Riviere, 277 Ark. 252 (1982), the constitution only requires that proposed amendments under Article 19, § 22 be submitted so electors can vote on each separately. By statute, Ark. Code Ann. § 7-9-204, the General Assembly may designate a popular name and ballot title in the joint resolution that proposes an amendment, but it is not required to. The standard for identifying a legislatively referred amendment on the ballot is whether the identification distinguishes the proposed amendment from others and is recognizable as referring to the amendment previously published in the newspapers (Thiel v. Priest, Walmsley v. McCuen, Becker v. McCuen).

Why does it matter whether the proposal was creating a brand-new ballot title requirement?

Because the standard of review for a legislative referral's identification on the ballot is different from the standard for an initiated amendment's ballot title. For Amendment 7 initiatives, the title must inform the voter so the voter can mark the ballot with a fair understanding of the issues (Hoban v. Hall), and must be free from misleading tendency by amplification, omission, or fallacy (Bradley v. Hall). If "Curtail Amendments" was importing that informational ballot-title standard into legislative referrals, that was an important policy change that voters should have been told about clearly. The proposal's language did not make that clear.

What was wrong with saying legislative amendments may not be proposed during fiscal or special sessions?

It implied that legislative amendments currently could be proposed in fiscal or special sessions, which is wrong. Article 19, § 22 already limits the legislature to proposing amendments at a "regular session." So the proposal was not changing anything in that respect, but the ballot title made it sound like a substantive reform. The AG read that as misleading by amplification.

Why couldn't the AG just fix the ballot title?

Because under Ark. Code Ann. § 7-9-107(b) the AG's substitution power covers the title, not the underlying text. Roberts v. Priest holds that internal inconsistencies in the proposed amendment itself defeat any attempt to certify a popular name and ballot title. When the ambiguity is in what the proposal would actually do, only the sponsor can fix it.

Background and statutory framework

The opinion sat in the same framework the AG used for every initiative review of this era. Ark. Code Ann. § 7-9-107 sets the AG's role: certify, substitute and certify, or reject. Subsection (b) authorizes substitution where practicable; subsection (c) authorizes rejection where the title is sufficiently misleading or the underlying text is internally ambiguous. Ark. Code Ann. § 7-5-309's five-minute booth limit underpins the brief-and-concise requirement. Ark. Code Ann. § 7-9-204 provides the optional statutory mechanism by which the legislature can supply a popular name and ballot title for its own referrals.

The substantive case law applied here splits into two strands. One strand sets the general ballot-title sufficiency standard for Amendment 7 initiatives: Arkansas Women's Political Caucus v. Riviere, Pafford v. Hall, Chaney v. Bryant, Moore v. Hall, May v. Daniels, the Becker v. Riviere line, Bailey v. McCuen, Becker v. McCuen, Christian Civic Action Committee v. McCuen, Roberts v. Priest, and the Kurrus/Donovan/Plugge line on the "clearly contrary to law" carveout. The other strand, unique to legislative referrals, includes Becker v. Riviere (277 Ark. 252), Thiel v. Priest, Walmsley v. McCuen, and the older Hoban v. Hall and Bradley v. Hall cases that distinguished the constitutional identification standard for Article 19, § 22 measures from the informational ballot-title standard for citizen initiatives.

Citations

• Ark. Const. art. 19, § 22
• Ark. Const. art. 5, § 1 (Amendment 7)
• Ark. Code Ann. § 7-9-107 (Repl. 2013)
• Ark. Code Ann. § 7-9-107(b)
• Ark. Code Ann. § 7-9-107(c)
• Ark. Code Ann. § 7-9-204 (Supp. 2013)
• Ark. Code Ann. § 7-5-309
• 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)
• Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982)
• 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)
• Thiel v. Priest, 342 Ark. 292, 28 S.W.3d 296 (2000)
• Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994)
• Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952)
• Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958)

Source

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

Original opinion text

Opinion No. 2015-091
August 17, 2015

Frederick N. Scott

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Sponsor, Little Red Hen Committee
P.O. Box 13584
Maumelle, AR 72113

Dear Mr. Scott:

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 (Repl. 2013), of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name

CURTAIL AMENDMENTS

Ballot Title

To reduce the number of constitutional amendments permitted the legislature from three to one by modifying article 19, section 22.

To establish who writes the ballot title for legislative amendments.

To establish that legislative amendments may not be proposed during the fiscal session or special sessions.

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 (see Ark. Code Ann. § 7-9-107(b)); 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.

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 Ark. Code Ann. § 7-9-107(b).

I refer to the following ambiguities.

In addition to amending Article 19, Section 22 of the Arkansas Constitution to limit the General Assembly to one (1) constitutional amendment for submission to the electors, you propose to add the following language to art. 19, § 22:

The heading or ballot title shall state the beginning sentence as: "An amendment to the Arkansas Constitution as proposed by the Arkansas General Assembly."

The ballot title of the proposed amendment shall be written or approved by a committee composed of the Lieutenant Governor, the Speaker of the House and the Attorney General. In the event they are unable to reach an agreement in a timely manner, the Secretary of State shall do so.

This language gives rise to several ambiguities.

1. The first set of ambiguities involves the reference to "[t]he heading or ballot title." It is unclear whether this language authorizes alternatives — that is, whether there could be either a "heading" or a "ballot title" — or whether, instead, the words "heading" and "ballot title" are synonymous. I note that both the text of your measure following this language and your proposed ballot title refer only to "[t]he ballot title," suggesting that the terms "heading" and "ballot title" are intended to have the same meaning. But this is not clear and could be confusing for the voter. Clarification is necessary for proper inclusion in a ballot title for your measure.

2. It is also unclear from this reference to "[t]he heading or ballot title" whether your measure, if approved, would establish either a "heading" or a "ballot title" requirement for constitutional amendments submitted to the people by the General Assembly pursuant to art. 19, § 22. Under current law, no ballot title is required by the constitution for proposed constitutional amendments submitted to the people by the General Assembly. As stated by the Arkansas Supreme Court, all the constitution requires is that "the proposed amendments under Art. 19, § 22 'be so submitted as to enable the electors to vote on each amendment separately.'" A statute provides that the General Assembly may, in the joint resolution proposing an amendment, designate a popular name and ballot title for the election ballot. But there is no ballot title requirement under either the constitution or statutes. If you intend to establish such a requirement, this important aspect of your proposal must be clarified before I can ensure that your proposal's ballot title properly reflects the substance of the measure.

3. The "heading or ballot title" language also gives rise to a question regarding the purpose for requiring either a "heading" or a "ballot title" for a legislatively referred constitutional amendment (assuming that is your intent). On the one hand, the word "heading" might suggest that the purpose is to simply identify the referred amendment so that the voters can recognize it on the ballot. If that is the case, the proposed amendment would not change current law in this respect. The Arkansas Supreme Court has held that absent fraud, a legislatively crafted constitutional amendment referred to the people pursuant to Ark. Const. art. 19, § 22 need only be identified to an extent that "distinguishes the proposed amendment from others and is recognizable as referring to the amendment that was previously published in the newspapers."

On the other hand, the word "ballot title" under your proposal could suggest that the purpose is to inform the voters, similar to the ballot title requirement for constitutional amendments proposed by the people pursuant to Amendment 7 to the Arkansas Constitution (codified at Ark. Const. art. 5, § 1). The purpose of such a ballot title is to "inform the voter so that he can mark his ballot with a fair understanding of the issues presented." The standard of review for determining the sufficiency of such a ballot title was explained above. In sum, the court looks to see if the ballot title is "free from any misleading tendency, whether of amplification, of omission, or of fallacy." This standard of review does not apply to the identification of an art. 19, § 22 measure on the ballot.

Because of the different standards for identifying measures proposed under Amend. 7 and art. 19, § 22, it is important to make clear what is meant precisely by "[t]he heading or ballot title" language of your proposal. Otherwise, uncertainty may result, giving rise to a potential basis for a challenge to the ballot title for your proposed amendment.

4. The words "written or approved" also create ambiguity, similar to the first point addressed above regarding the "heading or ballot title" language. Specifically, it is unclear whether "written" is distinct from "approved." The use of the disjunctive "or" suggests that the ballot title is to be either written or approved by the named "committee," in which case a question arises as to the initial crafting of a ballot title for a legislatively referred amendment. I note in this regard that your proposed ballot title states that the purpose is to "establish who writes the ballot title …." (Emphasis added.) There is no mention of a ballot title being "approved." This disconnection between your proposed ballot title and the text of your measure introduces additional uncertainty.

If your measure is intended to require a ballot title for legislatively proposed amendments, the ballot title procedure is an important aspect of your measure that may give voters serious ground for reflection. As it stands, however, I cannot determine the precise role of either the "committee" or the Secretary of State under your proposal. It is impossible to summarize these important points in a certified ballot title for your measure without clarification of these ambiguities.

5. The ballot title you have proposed for your amendment identifies as one of the amendment's purposes: "to establish that legislative amendments may not be proposed during the fiscal sessions or special sessions." A voter would unwittingly be led by this ballot title language to believe that the General Assembly may currently propose constitutional amendments during fiscal or special sessions. To the contrary, however, the constitution currently limits legislatively proposed constitutional amendments to regular sessions: "Either branch of the General Assembly, at a regular session thereof, may propose amendments to this Constitution …." Your proposed ballot title is therefore misleading in this respect.

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 resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/cyh

[Enclosure: Popular name "Curtail Amendments" and the full proposed amendment text to Article 19, Section 22, including the proposed "heading or ballot title" provision and the proposed Lieutenant Governor / Speaker / Attorney General committee mechanism, as set out in the official PDF.]