Why did the Arkansas AG rewrite the popular name for the proposed 'reduce 3 to 1' constitutional amendment limit on legislatively-referred amendments?

Plain-English summary

Frederick N. Scott, speaking for the Little Red Hen Committee, submitted a revised popular name for a proposed amendment that would reduce, from three to one, the number of constitutional amendments the General Assembly may propose at a regular session under Arkansas Constitution Article 19, Section 22. The sponsor's submitted popular name was: "Reducing from 3 to 1 the number of constitutional amendments allowed the General Assembly."

The AG rejected that popular name and substituted: "REDUCING CONSTITUTIONAL AMENDMENTS PROPOSED BY THE GENERAL ASSEMBLY UNDER ARTICLE 19, SECTION 22 OF THE ARKANSAS CONSTITUTION."

Why? The sponsor's wording was misleading in two ways:

1. It suggested the General Assembly's amendment power is limited to three. That is inaccurate. Article 19, Section 22 caps the General Assembly's power to refer proposed amendments to voters at three per regular session, but the legislature has additional, separate "direct amendment" powers over specific provisions of the constitution: Amendment 51, § 19 (sections 5 through 15 of Amendment 51, on voter registration); Amendment 89, § 19 (provisions of Amendment 89 on governmental bonds, interest rates, and energy efficiency); and Amendment 94, § 2 (ethical and salary-related provisions of §§ 28 through 31 of Article 19). The sponsor's popular name suggested that "three" was the General Assembly's total amendment authority, which is not true.

2. It implied the General Assembly amends the constitution by itself. The proposed amendment only modified Article 19, Section 22, which governs the legislature's power to submit proposals to voters. The sponsor's wording (amendments "allowed the General Assembly") suggested unilateral legislative amendment power. The legislature actually proposes amendments to voters, who approve or reject them.

The ballot title was identical to the one certified in Opinion 2015-107 and was approved as submitted. The AG enclosed the standard § 7-9-108 instructions to canvassers and signers, including the recitation of petition fraud under § 5-55-601(b).

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

Article 19, Section 22 of the Arkansas Constitution caps the General Assembly's referral of proposed amendments to voters at three per regular session. The constitution separately grants the General Assembly limited "direct amendment" powers over specific later constitutional amendments. Amendment 51, § 19 (1964) allows direct amendment of sections 5 through 15 of Amendment 51, dealing with voter registration. Amendment 89, § 19 (2010) allows direct amendment of Amendment 89, dealing with governmental bonds and loans, interest rates, and energy efficiency. Amendment 94, § 2 (2014) allows direct amendment of §§ 28 through 31 of Article 19, dealing with ethical and salary-related provisions.

Those direct-amendment powers are independent of Article 19, Section 22. The proposed amendment would not affect them. So describing the proposal as cutting the General Assembly's amendment power generally from three to one was both inaccurate and misleading: the legislature retains the direct-amendment authority over the listed provisions regardless of the proposed change.

The Arkansas Supreme Court's ballot-title cases (Pafford v. Hall, Chaney v. Bryant, May v. Daniels, Becker v. Riviere, Bailey v. McCuen, Crochet v. Priest, Christian Civic Action Committee, Becker v. McCuen) require the popular name to be honest and not misleading or partisan. The sponsor's framing violated those standards in two distinct ways, so the AG had to substitute.

The AG's substituted popular name made two changes: (1) added the specific reference to "Article 19, Section 22 of the Arkansas Constitution" so voters would know which legislative power was being affected, and (2) used "proposed" instead of "allowed" to make clear the legislature is in a proposal role, not an adoption role.

Common questions

What was the sponsor trying to say?

The Little Red Hen Committee wanted to make it harder for the General Assembly to put proposed amendments on the ballot by capping its referrals at one per regular session instead of three.

Why is "allowed" misleading?

It suggested the legislature has unilateral amendment power. It does not. The legislature proposes amendments; voters approve them.

Does the General Assembly have other ways to amend the constitution besides Article 19, Section 22?

Yes. The AG identified three: Amendment 51, § 19 (voter-registration sections); Amendment 89, § 19 (bonds and energy efficiency); and Amendment 94, § 2 (ethics and salary provisions). The proposed amendment did not affect those direct-amendment powers, which is why describing it as a cut "from 3 to 1" of overall legislative amendment power was inaccurate.

Why did this matter to voters?

Because a misleading popular name can mislead voters about the actual reach of the proposal. The Arkansas Supreme Court's ballot-title cases require popular names to be honest. A name that overstated the proposal's effect would tend to attract support from voters who think they are restricting the legislature more broadly than they actually would be.

Did this proposal eventually pass?

The opinion does not say. The AG's role was to certify language, not to predict outcomes.

Citations

• Ark. Code Ann. § 7-9-107 (AG certification authority)
• Ark. Code Ann. § 7-9-107(b) (substitution authority)
• Ark. Code Ann. § 7-9-108 (canvasser/signer instructions)
• Ark. Code Ann. § 7-5-309 (five-minute voting booth limit)
• Arkansas Constitution Article 19, Section 22 (legislatively referred amendments)
• Arkansas Constitution Amendment 51, Section 19 (direct amendment of voter-registration provisions)
• Arkansas Constitution Amendment 89, Section 19 (direct amendment of bond and energy-efficiency provisions)
• Arkansas Constitution Amendment 94, Section 2 (direct amendment of ethical and salary provisions)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950) (popular name as legislative device)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976) (no partisan coloring)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004) (popular name and ballot title read together)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts and partisan coloring tests)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996) (fatally misleading tendency)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990) (honest and impartial)
• Op. Att'y Gen. 2015-107 (prior certification of substantively similar proposal)

Source

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

Original opinion text

Opinion No. 2015-115
October 5, 2015
Frederick N. Scott
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Sponsor, Little Red Hen Committee
P. O. Box 13584
Maumelle, AR 72113
Dear Mr. Scott:
I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Repl. 2013), of the popular name and ballot title for a proposed constitutional amendment.

You have requested certification of the following popular name and ballot title:

Popular Name: Reducing from 3 to 1 the number of constitutional amendments allowed the General Assembly

Ballot Title: Article 19, Section 22 of the Arkansas Constitution currently authorizes the Arkansas General Assembly at a regular legislative session to propose up to three (3) constitutional amendments to be submitted to the people for approval or rejection at the next general election. This amendment would change this number from three (3) to one (1), so that the General Assembly would be authorized at a regular session to propose no more than one (1) constitutional amendment pursuant to Article 19, Section 22, for submission to the people at the next general election.

This submission is a follow-up to Attorney General Opinion 2015-107, wherein I substituted and certified a popular name and ballot title for substantially the same proposed constitutional amendment that is the subject of your current request. You have made no substantive changes to the proposed amendment, but have instead slightly modified the measure to accurately track the proposed amendments to Ark. Const. art. 19, § 22.

RESPONSE

Popular Name: It is my conclusion that your proposed popular name does not satisfy the guidelines established by the Court. The name you have proposed suggests to the voters that the General Assembly is currently "allowed" three (3) constitutional amendments, and that your proposed amendment would reduce that number to one (1). This is inaccurate and potentially misleading in several respects. First, the General Assembly currently has the power to amend more than three constitutional provisions (what I will call "direct amendments" by the General Assembly): Amendment 51, § 19 (permitting the General Assembly to amend sections 5 through 15 of Amendment 51, which deals with voter registration); Amendment 89, § 19 (permitting the General Assembly to amend the provisions of Amendment 89 dealing with governmental bonds and loans, interest rates, and energy efficiency projects); and Amendment 94, § 2 (to be codified at Ark. Const. art. 19, §§ 28-31) (permitting the General Assembly to amend the ethical and salary-related provisions of §§ 28 through 31 of article 19). Second, and most important, your proposed amendment does not affect these "direct amendments." Rather, your measure would only amend Ark. Const. art. 19, § 22, which deals exclusively with the General Assembly's power to submit constitutional amendments to the people for a vote. That is why the popular name I substituted in Opinion No. 2015-107 referred to your proposed amendment as one that would reduce amendments proposed by the General Assembly under art. 19, § 22.

It is therefore my conclusion that I must reject the popular name you submitted. I hereby substitute and certify the following popular name for your proposed amendment.

Popular Name (substituted): REDUCING CONSTITUTIONAL AMENDMENTS PROPOSED BY THE GENERAL ASSEMBLY UNDER ARTICLE 19, SECTION 22 OF THE ARKANSAS CONSTITUTION

Ballot title: The ballot title you submitted is identical to the one I substituted and certified in Opinion No. 2015-107. In my opinion, this title is sufficient to meet the above guidelines. It is therefore approved as submitted and hereby certified.

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 are instructions that should be incorporated in your petition prior to circulation.

Sincerely,
LESLIE RUTLEDGE
Attorney General