How did the Arkansas AG rule on the popular name and ballot title for a proposal to limit legislatively referred amendments?

Plain-English summary

Frederick N. Scott, speaking for the Little Red Hen Committee, submitted a proposed constitutional amendment that would change Arkansas Constitution Article 19, Section 22, which currently allows the General Assembly to propose up to three constitutional amendments per regular session for submission to voters. The proposal would cut that to one.

The AG had already certified a popular name and ballot title for substantively the same proposal in Opinion 2015-115. This was a re-submission with a slightly modified popular name. The sponsor's new popular name read: "REDUCING FROM 3 TO 1 THE NUMBER OF CONSTITUTIONAL AMENDMENTS ALLOWED THE GENERAL ASSEMBLY BY ARTICLE 19, SECTION 22."

The AG rejected that popular name. The word "allowed" was misleading because it suggested the General Assembly amends the Arkansas Constitution on its own. It doesn't. The General Assembly only proposes amendments that voters then approve or reject. The popular name needed to reflect the legislature's actual role (proposing, not adopting).

The AG substituted the following popular name: "REDUCING FROM 3 TO 1 THE NUMBER OF CONSTITUTIONAL AMENDMENTS THAT MAY BE PROPOSED BY THE GENERAL ASSEMBLY UNDER ARTICLE 19, SECTION 22." That phrasing matched the popular name already certified in Opinion 2015-115.

The ballot title was identical to the one already certified in Opinion 2015-115, and the AG approved it as submitted. The opinion enclosed instructions to canvassers and signers under § 7-9-108, including a warning about 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

Arkansas Constitution Article 19, Section 22 governs the General Assembly's role in proposing constitutional amendments: either branch may propose an amendment at a regular session, the proposed text is entered on the journals, published in newspapers for six months before the next general election, and then submitted to voters. The current constitutional language at the time of this opinion allowed up to three such amendments per cycle. The Little Red Hen Committee's proposal would change the constitutional ceiling from three to one.

Ark. Code Ann. § 7-9-107 governs AG certification of popular names and ballot titles, with substitution authority in § 7-9-107(b). The Arkansas Supreme Court has held repeatedly that popular names cannot mislead voters about what they are voting on (Pafford v. Hall, Chaney v. Bryant, May v. Daniels). Implying that the General Assembly amends the constitution itself was a misleading framing because the legislature only proposes amendments; voters approve them. The sponsor's "allowed the General Assembly" wording suggested unilateral legislative power that the Arkansas Constitution does not grant.

The AG's substituted popular name fixes the confusion by saying the amendment reduces the number of amendments "that may be proposed by the General Assembly." That correctly describes the legislature's role and matches the popular name already certified for the same substantive proposal in Opinion 2015-115.

The instructions to canvassers and signers attached to the opinion explain signature requirements and list petition-fraud acts under § 5-55-601(b). They say petition fraud is a Class A misdemeanor punishable by a fine of up to $1,000 and imprisonment for up to one year.

Common questions

Does the General Assembly amend the Arkansas Constitution by itself?

No. The General Assembly proposes amendments. Voters approve or reject them. The AG's substitution made that distinction explicit.

What does this proposal actually do?

If voters had approved it, Article 19, Section 22 would have been changed so that the General Assembly could propose only one constitutional amendment per regular session, down from up to three.

Why did the AG bother to rewrite just the popular name?

Because the popular name is what voters see on the ballot summary. Implying the legislature has unilateral amendment power is exactly the kind of "partisan coloring" or "misleading tendency" the Arkansas Supreme Court has identified as fatal to a popular name. The fix was small but consequential.

Did certification mean the proposal appeared on a ballot?

The AG certified the title as submitted and provided instructions to include in the petition before circulation. The opinion does not say whether the proposal later appeared on a ballot.

What was the Little Red Hen Committee?

The opinion identifies Frederick N. Scott as spokesperson for the Little Red Hen Committee, a Maumelle-based group that sponsored the proposal. The committee's broader goals are not addressed in the opinion text.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2015) (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)
• Ark. Code Ann. § 5-55-601(b) (petition fraud, Class A misdemeanor)
• Arkansas Constitution Article 19, Section 22 (legislatively referred amendments)
• 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) (popular name as legislative device)
• 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)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996) (partisan coloring as misleading)
• 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)
• Op. Att'y Gen. 2015-115 (prior certification of substantively same proposal)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/
• Official PDF: https://ag-opinions.s3.amazonaws.com/uploads/2015-124.pdf

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-124

November 2, 2015

Mr. Frederick N. Scott, Spokesperson
Little Red Hen Committee
P. 0. 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 (Supp. 2015), of the popular name and ballot title for a proposed constitutional amendment.

At the outset, I wish to make clear to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not, consider the merits of the measure when making my determination to certify or reject a popular name and ballot title.

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, ifpracticable, 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 this office 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

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Mr. Frederick N. Scott, Spokesperson
Little Red Hen Committee
Opinion No. 2015-124
Page 2

law," 1 this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. 2 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 honestl1, intelligibly, and fairly set forth the purpose of the proposed amendment or act.

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name

REDUCING FROM 3 TO 1 THE NUMBER OF CONSTITUTIONAL AMENDMENTS ALLOWED THE GENERAL ASSEMBLY BY ARTICLE 19, SECTION 22

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 (I) constitutional

1
See Kurrus v. Priest, 342 Ark. 434, 445 , 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931S.W.2d119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841S.W.2d139 ( 1992). 2 As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents. 3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984) .

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Mr. Frederick N. Scott, Spokesperson
Little Red Hen Committee
Opinion No. 2015-124
Page 3

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 No. 2015-115, wherein I substituted and certified a popular name and ballot title for 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 wording of the proposed popular name.

RESPONSE

The popular name is primarily a useful legislative device. 4 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. 5 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency. 6

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." 7 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." 8 At the same time, however, a ballot title must be brief and concise; 9 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. 10 The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate

4
Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
5
E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see infra note 12. 6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
7
Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
8
Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
9
See Ark. Code Ann.§ 7-9-107(b).
10
Bailey at 288, 884 S.W.2d at 944.

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Mr. Frederick N. Scott, Spokesperson
Little Red Hen Committee
Opinion No. 2015-124
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every possible legal argument the proposed measure might evoke. 11 The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." 12 The ballot title must be honest and impartial, 13 and it must conve(: an intelligible idea of the scope and significance of a proposed change in the law. 4

Popular Name

It is my conclusion that your proposed popular name does not satisfy the guidelines established by the Court. The popular name you have submitted characterizes constitutional amendments under Article 19, section 22 of the constitution as amendments that are "allowed the General Assembly." (Emphasis added.) This suggests to the voters that the General Assembly can amend the Arkansas Constitution on its own. But that is inaccurate. Article 19, section 22 instead authorizes the General Assembly to submit proposed constitutional amendments to the people for a vote. That is why the popular name I substituted and certified in Opinion No. 2015-115 referred to your proposed amendment as one "reducing constitutional amendments proposed by the General Assembly under Article 19, Section 22 of the Arkansas Constitution." (Emphasis added.)

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

REDUCING FROM 3 TO 1 THE NUMBER OF CONSTITUTIONAL AMENDMENTS THAT MAY BE PROPOSED BY THE GENERAL ASSEMBLY UNDER ARTICLE 19, SECTION 22

11
Id. at 293, 884 S.W.2d at 946-47.
12
Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by the Arkansas Supreme Court as language that "creates a fatally misleading tendency" (Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." (Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)). 13 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
14
Christian Civic Action Committee, 318 Ark. at 245, 884 S. W.2d at 607 (internal quotations omitted).

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Mr. Frederick N. Scott, Spokesperson
Little Red Hen Committee
Opinion No. 2015-124
Page 5

The ballot title you submitted is identical to the one I substituted and certified in Opinion No. 2015-115. 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,

__;::;::> /:f<s?
LESLIE RUTLEDGE
Attorney General

LR/cyh

Enclosures

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Instructions to Canvassers and Signers

1. The Arkansas Constitution gives Arkansas citizens the power to (a) initiate legislation by petition of 8% of the legal
   voters or constitutional amendments by petition of 10% of legal voters, or ( b) order the referendum against any general act or any item of an appropriation bill or measure passed by the General Assembly by petition of 6% of legal voters. A proposed measure must be submitted at a regular election; referendum petitions may be referred at special elections on petition of 15% of the registered voters. Any measure submitted to the people becomes law when approved by a majority of the votes cast on the measure.

2. Only registered voters may sign . All signatures must be in the signer's own handwriting and in the presence of the
   person circulating the petition. The petition should contain only the signatures of voters residing in a single county.

3. Printed name, date of birth, residence, city or town of residence, and date of signing must be given as an aid to
   verification. If a petition signer needs assistance with this information due to disability, another person may print the signer's information and that person shall sign and print their name in the margin of the petition.

4. Do not attach additional sheets to this petition unless they contain the full language of the petition. The signature
   section of the petition must be formatted as prescribed by the Secretary of State.

5. Pursuant to section 5-55-601(b) of the Arkansas Code, each of the following activities constitutes "petition fraud ,"
   which is a Class A misdemeanor and is punishable by a fine of up to $1,000 and imprisonment for up to one year:

A person commits the offense of petition fraud:
(I) If the person knowingly:
(A) Signs a name other than his or her name to a petition;
(B) Signs his or her name more than one (1) time to a petition; or
(C) Signs a petition when he or she is not legally entitled to sign the petition;
(2) lfthe person acting as a canvasser, notary, sponsor as defined under§ 7-9-101, or agent of a sponsor:
(A) Signs a name other than his or her own to a petition;
(B) Prints a name, address, or birth date other than his or her own to a petition unless the signor requires
assistance due to disability and the person complies with§ 7-9-103;
(C) Solicits or obtains a signature to a petition knowing that the person signing is not qualified to sign the
petition;
(D) Knowingly pays a person any form of compensation in exchange for signing a petition as a petitioner;
(E) Accepts or pays money or anything of value for obtaining signatures on a petition when the person acting
as a canvasser, sponsor, or agent of a sponsor knows that the person acting as a canvasser's name or address
is not included on the sponsor's list filed with the Secretary of State under§ 7-9-601; or
(F) Knowingly misrepresents the purpose and effect of the petition or the measure affected for the purpose of
causing a person to sign a petition;
(3) lf the person acting as a canvasser knowingly makes a false statement on a petition verification form; [or]
***
(5) If the person acting as a sponsor files a petition or a part of a petition with the official charged with verifying
the signatures knowing that the petition or part of the petition contains one (1) or more false or fraudulent
signatures unless each false or fraudulent signature is clearly stricken by the sponsor before filing.

The Attorney General is by law required to certify the sufficiency of the popular name and ballot title of all initiative or referendum petitions. This certification does not necessarily indicate the approval or disapproval of the contents thereof.

                                                                            ~ --             --   L; .   //~~~
                                                                               LESLIE RUTLEDGE
                                                                               Attorney General of the State of Arkansas

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POPULAR NAME

Reducing from 3 to 1 the number of constitutional amendments allowed the General Assembly by Article 19, Section 22

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 rejecton 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.

Article 19, Section 22. Constitutional Amendments

Either branch of the General Assembly, at a regular session thereof, may propose amendments an amendment to this Constitution; and if the same be agreed to by a majority of all members elected to each house, such proposed amendments amendment shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State, for approval or rejection; and if a majority of the electors voting at such election adopt such amendments amendment, the same shall become a part of this Constitution. But no more than three amendments one amendment shall be proposed or submitted.:. at the same tfm&.- They shall be so submitted as to enable the electors to vote on each amendment separately.