Can Arkansas voters use an initiated act to bar state colleges from requiring students to live in dorms or buy meal plans?

Plain-English summary

A Pine Bluff resident, David E. Dinwiddie, submitted a proposed initiated act that would have barred "State[-]owned" colleges and universities in Arkansas from requiring students to enroll in a dormitory or "cafeteria plan" as a condition of admission, with an exemption for students "in Athletic Programs." Under Ark. Code Ann. § 7-9-107, the Attorney General has to certify the popular name and ballot title before sponsors can circulate the petition for signatures.

Attorney General Leslie Rutledge rejected the submission. Her office concluded the underlying text of the proposed act was too ambiguous for any popular name or ballot title to fairly summarize it, so she could not substitute and certify cleaner language. Until the sponsor cleaned up the text of the initiated act itself, no ballot title would clear review.

Currency note

This opinion was issued in 2016. 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.

What the AG flagged

The opinion walked through six specific problems with the draft proposal:

1. No enacting clause. Amendment 7 to the Arkansas Constitution (now Ark. Const. art. 5, § 1) requires every initiated bill to begin with the precise formula "Be It Enacted by the People of the State of Arkansas." The Dinwiddie draft omitted it. Citing Mertz v. State, 318 Ark. 390 (1994), the AG noted Arkansas courts have read the enacting-clause rule strictly.
2. "Cafeteria plan" was undefined. In federal tax law, a "cafeteria plan" is a § 125 fringe benefit, not a campus meal plan. The AG observed that voters would likely confuse the two meanings, so the term needed a definition in the act itself.
3. "Admission" was unclear. The proposal forbade requiring dorm or cafeteria enrollment as a condition of "admission." The AG asked whether the bar ended once the student was admitted, or whether it also reached enrollment in classes, attendance, or continued enrollment, none of which the draft addressed.
4. "State-owned" college was not a recognized term. The Arkansas Code refers to "public" and "state-supported" institutions, never "state-owned." Beyond the drafting problem, the AG flagged that if the measure tried to restrict admissions policies of constitutionally chartered institutions, it could face an Amendment 33 challenge because Section 2 of that 1942 amendment protects the governance powers of certain higher-education boards.
5. "Athletic Programs" was ambiguous. The exemption did not say whether it applied only to intercollegiate athletes, also to intramural participants, only to scholarship athletes, or also to walk-ons.
6. "State Colleges" in the ballot title was ambiguous. The label did not tell voters whether the measure reached private institutions or only public ones.

Background on ballot-title review

Under Ark. Code Ann. § 7-9-107, every proposed initiative or referendum must have its popular name and ballot title certified before petitions are circulated for signature. The AG does not weigh the merits of a proposal. The job is narrow: decide whether the popular name and ballot title honestly and intelligibly summarize what voters would be approving.

The Arkansas Supreme Court has held that a ballot title must be "free of any misleading tendency whether by amplification, omission, or fallacy" (Bailey v. McCuen, 318 Ark. 277 (1994)), and must give the voter "a fair understanding of the issues presented" (Becker v. Riviere, 270 Ark. 219 (1980)). When the underlying text of a proposal contains internal inconsistencies or undefined terms, the court has held that those defects "would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself" (Roberts v. Priest, 341 Ark. 813 (2000)). In that situation the AG cannot rewrite the ballot title around the problem; the sponsor has to redraft the act.

The opinion declined to substitute alternative ballot-title language because the AG concluded the proposal's text had to be revised before any title could fairly summarize its effect.

Common questions

Was this proposal ever placed on a ballot?
The opinion only addressed the certification step at the time. AG rejection meant the sponsor could not collect signatures on this draft. The historical record beyond the AG's office would have to be checked separately to see whether a revised version was ever submitted or circulated.

Why didn't the AG just substitute corrected ballot-title language?
Ark. Code Ann. § 7-9-107(b) lets the AG substitute "a more suitable and correct" popular name and ballot title when practicable. The AG explained that when the underlying act is itself ambiguous, no substituted title can accurately summarize it. Fixing the title without fixing the act would not help voters.

Does Amendment 33 actually block voter-initiated regulation of state university boards?
The opinion noted this was an "open question" with no controlling Arkansas appellate decision. Section 2 of Amendment 33 (adopted in 1942) protects the powers of certain higher-education boards from legislative transfer or abolition. The AG raised the issue as a flag for the sponsor without holding the proposal unconstitutional.

Source

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

Original opinion text

Opinion No. 2016-017
March 9, 2016
David E. Dinwiddie
8608 Princeton Pike
Pine Bluff, AR 71602
Dear Mr. Dinwiddie:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
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 initiated act.
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, 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 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 law," this office 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 act.
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.

REQUEST

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

Popular Name
STATE COLLEGES PROHIBITED FROM REQUIRING ENROLLMENT IN DORMITORY AND CAFETERIA PLANS AS REQUIREMENT FOR ADMISSION

Ballot Title
State colleges prohibited from requiring enrollment in a dormitory or cafeteria plan as requirement for admission, with the exception of students in Athletic Programs.

RESPONSE

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 of any misleading tendency whether by amplification, omission, or fallacy, and 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 measure cannot be approved if the text of the proposal itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure. The Court has 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 (1) clarification or removal of the ambiguities in the proposed initiated act itself, and (2) conformance of the popular name and ballot title to the newly worded proposal.
It is my opinion, based on the above precepts, that a number of additions or changes to your ballot title are 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 in the text of your proposed act itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you may, if you wish, redesign the proposed measure and ballot title, and then resubmit for certification. In order to aid your redesign, I highlight below the more concerning ambiguities in the text of your proposed act.

1. The text of your initiated act does not contain the required enacting clause. Amendment 7 to the Arkansas Constitution (now codified at Ark. Const. art. 5, § 1), provides: "The style of all bills initiated and submitted under the provisions of this section shall be 'Be It Enacted by the People of the State of Arkansas (municipality or county, as the case may be).'" As stated by the Arkansas Supreme Court: "Simply put ... all bills initiated must be submitted in the following language set forth in Amendment 7: 'Be it enacted by the people of the State of Arkansas (municipality or county as the case may be).' Thus our constitution speaks, and thus our law requires."

Because the constitution clearly requires the inclusion of an enacting clause in a proposed initiated act, the absence of one from your measure creates an ambiguity as to the measure's ultimate effectiveness.

2. The use of the term "cafeteria plan" in your proposed act, and consequently in your ballot title, is undefined and ambiguous. I believe a "cafeteria plan" is generally understood as a type of employment fringe benefit whereby, under section 125 of the Internal Revenue Code, qualified employees may choose to allocate up to a set amount of their wages to two or more basic benefit options, and where such allocated amount is deducted from the employee's gross income for income tax purposes.

It seems likely from the context of your proposal, however, that the term "cafeteria plan" is meant to refer to some policy or requirement of colleges or universities in the State relating to student meals, although that is far from clear. In my opinion, the typical voter likely would have difficulty differentiating between the commonly understood meaning of the term "cafeteria plan" and whatever your proposal appears designed to have it mean. The substance of your proposed act in this regard must therefore be clarified for proper inclusion in a ballot title for the measure.

3. Your proposed act appears to prohibit colleges or universities in Arkansas from "requir[ing] enrollment in a dormitory or cafeteria plan, as a requirement for admission ..." (this language is also used in your proposed ballot title). This provision is unclear. The word "admission" implies the act of "entering or being allowed to enter a place, organization, or institution." But it is unclear whether the prohibition contained in your proposal is intended to end after the students have been admitted. One question that arises is whether, under your proposal, the institutions would be allowed to impose the requirements as a condition of students being allowed to enroll in classes, or as a condition of their actual attendance (as opposed to admittance) or continued attendance. Without clarification of these points, I cannot adequately summarize your proposal in a ballot title so that voters will have a fair understanding of the issues presented.

4. Your proposal refers to "State[-]owned" colleges or universities. This terminology is ambiguous. State law makes numerous references to public (as opposed to private) institutions of higher education, as well as to "state-supported institutions of higher education." But I can find no references to "state-owned" colleges or universities in the Arkansas Code. This terminology must be clarified before it can be adequately summarized in a ballot title.

This point, however, raises another potentially problematic aspect of your proposal. As noted above, as part of my review, I may address constitutional concerns to be taken in consideration by a measure's proponents. Accordingly, I should mention that a measure such as this, if it is meant to apply to "state-supported institutions of higher education" and is ultimately enacted by the voters, may well spur a legal challenge under Amendment 33 to the state constitution.

5. Your proposal purports to exempt "students in Athletic Programs." This terminology is ambiguous. Specifically, it is unclear whether this would exempt only those students who participate in intercollegiate sporting activities, or whether it would also apply to students who plan to take part in intramural sporting activities. It is further unclear whether the exemption would only apply to students who are admitted to an institution on a scholarship for the ancillary purpose of playing sports for the institution, or whether it might also apply to students who are admitted without such scholarships but who may later earn a roster spot as a "walk-on." These, and potentially other questions concerning the precise scope of the exemption for "students in Athletic Programs," must be addressed in the text of your proposal before the exemption can be adequately summarized for the voters in a ballot title.

6. Your ballot title's use of the term "State Colleges" is ambiguous. As written, the ballot title would not necessarily inform voters whether the measure is limited to public, that is state-supported, institutions of higher education, or whether it applies to all institutions of higher education, both public and private. This must be clarified so that voters will have a fair understanding of the scope of the measure when reading the ballot title.

CONCLUSION

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on review of any revisions of your proposal.

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