Why did the Arkansas Attorney General reject the 2016 proposed 'Arkansas Cannabis Restoration Amendment' ballot title?

Plain-English summary

Don Lane submitted a proposed constitutional amendment for AG certification under Ark. Code Ann. § 7-9-107. The amendment was titled "The Arkansas Cannabis Restoration Amendment" and would have legalized recreational marijuana for people 18 and older, established medical marijuana access for patients (including some under 21), regulated industrial hemp, and released and expunged the records of nonviolent marijuana offenders.

AG Leslie Rutledge rejected the popular name and ballot title. Her stated reason was not the policy of the proposal; it was that the underlying text contained ambiguities so serious she could not draft an accurate ballot title around them. Section 7-9-107 lets the AG substitute a better title when the underlying proposal is clear enough to summarize, but when the proposal itself is internally ambiguous, the AG cannot substitute. The proposal goes back to the sponsor for revision.

The AG identified eight specific ambiguities in the proposal text:

1. Section 2's "shall be lawful" language was misleading because federal law prohibited the listed acts, and a state amendment cannot override federal law. The proposal acknowledged this in passing but still asserted lawfulness.
2. Section 3's definition of "recreational marijuana" excluded alcoholic beverages produced from cannabis, leaving unclear whether the state retained regulatory authority over those beverages.
3. Sections 3 and 7's definition of "written recommendation" referred inconsistently to a "medical doctor, who is licensed in this state" and a "medical doctor holding a current valid license recognized by this state." That left open whether out-of-state doctors qualified, whether a doctor must currently be practicing, whether a doctor whose practice consisted only of recommending marijuana qualified, and whether a prior physician-patient relationship was required.
4. Section 3's definition of "usable marijuana" used the undefined terms "concentrate" and "consumable."
5. Section 4 on industrial hemp said hemp "may be regulated but not prohibited, similar [sic] to cotton, corn, or any other crops that are currently or shall be regulated by this state," which was ambiguous about how strictly hemp could be regulated and how the rule would adjust if cotton or corn regulation later changed.
6. Section 6's reference to "the weight of living, drying, or plants in the process of drying or curing" was simply unclear in meaning.
7. Section 9 said the amendment was "not intended to permit the consumption of marijuana in public" but did not prohibit it. The reader could not tell what status public consumption would have under the new amendment.

The AG noted the certification process is purely procedural; he was not addressing the merits, philosophy, or ideology of the proposal. The role is fixed by § 7-9-107: the AG's duty is to the electorate, to make sure that if Arkansas voters see this measure on a ballot, they will understand what they are voting on.

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.

Background and statutory framework

The AG's role in ballot-title certification

Under Ark. Code Ann. § 7-9-107, every proposed initiated act and constitutional amendment must have its popular name and ballot title certified by the Attorney General before the petition is circulated for signatures. The AG has three possible responses:

1. Certify as submitted if the popular name and ballot title accurately and impartially summarize the proposal.
2. Substitute a more suitable popular name and ballot title and certify the substituted versions, if the proposal itself is clear enough to summarize but the sponsor's title is not.
3. Reject the entire petition if the title is "sufficiently misleading" or if the underlying proposal contains ambiguities so serious that no fair summary is possible.

The third response sends the sponsor back to the drawing board. The AG cannot certify on a "fix the title, leave the text" basis when the text itself is the problem.

The ballot-title standard

The Arkansas Supreme Court built the standard through a long line of cases. The ballot title must "honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act" (Arkansas Women's Political Caucus v. Riviere). It must give voters "a fair understanding of the issues presented" (Becker v. Riviere). It cannot omit "an essential fact which would give the voter serious ground for reflection" (Bailey v. McCuen), but it also has to be brief enough to read inside Ark. Code Ann. § 7-5-309's five-minute voting-booth time limit. The title must be "free of any misleading tendency whether by amplification, omission, or fallacy, and . . . must not be tinged with partisan coloring" (Bailey and Crochet v. Priest).

The popular name is treated more loosely than the ballot title (Pafford v. Hall), but it still cannot be "misleading or give partisan coloring to the merit of the proposal" (Chaney v. Bryant; Moore v. Hall). Popular name and ballot title are considered together in evaluating the title's sufficiency (May v. Daniels).

When the proposal itself is the problem

The Supreme Court recognized in Roberts v. Priest that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." In that situation the AG cannot fix things by substituting a clearer title; the text has to be revised first. The AG applied this rule here.

The AG also flagged the limits of her review under Kurrus v. Priest, Donovan v. Priest, and Plugge v. McCuen: unless a measure is "clearly contrary to law," the AG will not require the sponsor to acknowledge possible constitutional infirmities in the ballot title. So in this opinion, the AG noted federal-law conflicts and the alcohol regulation issue, but framed them as drafting ambiguities, not as grounds for refusing to certify a clear proposal.

Common questions

Q: Did the AG decide whether the policy of legalizing marijuana was a good idea? A: No. The AG was explicit that this is not the AG's role under § 7-9-107. The role is to make sure the title accurately tells voters what the underlying measure does. A perfectly drafted amendment legalizing marijuana would have to be certified regardless of the AG's personal views; a poorly drafted amendment had to be rejected regardless of its policy merits.

Q: Could the sponsor fix the proposal and resubmit? A: Yes. § 7-9-107(c) lets the sponsor revise the measure and resubmit. The AG flagged the ambiguities specifically so the sponsor would know what to address. The AG also cautioned that additional ambiguities might come to light on review of any revisions.

Q: Why did federal law matter for a state constitutional amendment? A: The amendment as drafted said certain acts "shall be lawful." Federal law made those same acts illegal. The state amendment could not actually make conduct "lawful" in the everyday sense if federal law forbade it; at most the amendment could insulate the conduct from state-law prosecution. The AG read the "shall be lawful" language as creating a false impression for voters about what the amendment would accomplish.

Q: What about the constitutional amendment that Arkansas voters actually adopted that year? A: Arkansas voters approved a separate Medical Marijuana Amendment (Issue 6) in November 2016. That measure was the product of a different sponsor and went through its own certification process. This opinion addressed the Cannabis Restoration Amendment, a broader recreational-and-medical proposal that did not make the ballot.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (Supp. 2015) (AG certification of ballot titles)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth time limit)

Cases:

• Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000)
• Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984)
• Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950)
• 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)
• May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004)
• Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980)
• Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994)
• Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)
• Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990)
• Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000)

Source

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

Official summary

Request for certification of the popular name and ballot title of a constitutional amendment proposed to provide for regulation of industrial hemp, allow the purchase, possession and cultivation of recreational and medical marijuana, and other purposes. RESPONSE: Rejected due to ambiguities in the proposal's text.

Original opinion text

The full text of the rejection letter, including the AG's detailed enumeration of textual ambiguities in the proposed amendment, follows the same form as the AG's standard ballot-title rejection. The complete original is preserved in the repository's prior raw scrape; due to length (the proposal itself ran more than 12 pages of constitutional text), the substantive rejection analysis is summarized in the sections above. See the linked landing page for the official source.

Opinion No. 2016-034
April 11, 2016
Don Lane, Sponsor
1408 Central Boulevard
Bull Shoals, AR 72619
Dear Mr. Lane:
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 measure. 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 proposal. 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 constitutional amendment: Popular Name The Arkansas Cannabis Restoration Amendment Ballot Title Shall there be an amendment to the Arkansas Constitution concerning the cannabis plant and, in connection therewith, providing for the regulation of marijuana and the regulation of industrial hemp; permitting a person 18 years of age or older to purchase and possess recreational marijuana, and to cultivate and produce limited amounts of marijuana for his or her own personal use; permitting the use of medical marijuana to assure that patients, including those under 21 years of age, may have access to medical marijuana to treat any disease, injury, or illness as recommended by their doctor; requiring the release of nonviolent marijuana offenders in this state from incarceration, probation, and parole and expunging such convictions from all criminal records in this state? 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 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 proposal 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 the measure 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 proposal. Section 2 and other provisions state that certain acts with respect to cannabis "shall be lawful." So long as federal law prohibits any of those acts, however, the acts will not be "lawful" within the state. Statements to the contrary are inherently misleading notwithstanding your addition of an acknowledgement that certain acts are unlawful under federal law. Section 3 defines "recreational marijuana" to exclude alcoholic beverages produced from cannabis. The provision makes unclear the state's regulatory or prohibitory authority with respect to such beverages. Section 3 defines "written recommendation" as a document provided by a "medical doctor, who is licensed in this state." Section 7 refers to a "medical doctor holding a current valid license recognized by this state." The difference in language creates ambiguity with respect to whether such a doctor must currently be practicing, whether an out-of-state doctor licensed in Arkansas or elsewhere (to the extent "recognized by this state") is included, and whether a doctor whose practice is limited to recommending marijuana is included. The sections also refer to a "patient" of the doctor. The provisions are unclear with respect to whether a prior physician-patient relationship is required and with respect to whether the doctor must examine the patient before the recommendation is made. Section 3 defines "usable marijuana" as "any part of the dried vegetation, concentrate, and consumable ready for use by the consumer." The meanings of the words "concentrate" and "consumable" are unclear. Section 4 states that hemp "may be regulated but not prohibited, similar
[sic] to cotton, corn, or any other crops that are currently or shall be regulated by this state." The provision is ambiguous with respect to the extent of regulation permissible in the event such other crops are currently regulated differently. It is also ambiguous with respect to how hemp may be regulated in the event a crop may be subjected to a different level of regulation after adoption of the proposal. Section 6 refers to "the weight of living, drying, or plants in the process of drying or curing." The meaning of the phrase is unclear. Section 9 provides that the proposal is not intended to permit the consumption of marijuana in public. The proposal does not, however, prohibit such consumption. It is therefore uncertain and ambiguous how such consumption would be treated under law following adoption of the proposal. 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