How does the Arkansas Attorney General certify a ballot title for a citizen-initiated casino amendment?

Plain-English summary

Cal McCastlain, on behalf of the sponsors, asked AG Leslie Rutledge under Ark. Code Ann. § 7-9-107 to certify the popular name and ballot title of a proposed initiated constitutional amendment to authorize three casinos in Arkansas, one each in Boone, Miller, and Washington counties, operated respectively by Arkansas Gaming and Resorts, LLC, Miller County Gaming, LLC, and Washington County Gaming, LLC.

The AG certified the popular name as submitted and substituted a revised ballot title to fix minor grammatical and typographical errors (notably the misspelling "authorzing" in the sponsors' submission). The opinion lays out the legal framework she applied. By statute, the AG must certify the popular name and ballot title before petitions can circulate. The AG can substitute a more suitable name or title if practical; if a proposed name or title is sufficiently misleading, the AG can reject the entire petition.

The AG does not pass on the merits of the proposal. The AG also does not (consistent with Arkansas Supreme Court precedent) require sponsors to acknowledge possible constitutional infirmities in the ballot title unless the measure is "clearly contrary to law." The review focuses on whether the popular name and ballot title accurately and impartially summarize the proposal. The opinion catalogues the Supreme Court's body of law on what makes a ballot title sufficient: it must give voters a fair understanding of the issues, disclose essential facts that would give voters serious ground for reflection, be brief enough to read in the five-minute voting-booth window under Ark. Code Ann. § 7-5-309, be free of misleading tendency by amplification or omission, be free of partisan coloring, and convey an intelligible idea of the scope and significance of the proposed change.

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.

Common questions

What does it mean for the AG to "certify" a popular name and ballot title?
Under Ark. Code Ann. § 7-9-107, sponsors of an initiated act or amendment must submit the popular name and ballot title to the AG before petitions can circulate. The AG either certifies (sometimes with substitutions to correct errors or improve clarity) or rejects. Certification is a procedural prerequisite; it does not signal AG endorsement.

Does certification mean the measure is constitutional or a good idea?
No. The AG expressly disclaims any view on the merits. The AG also generally does not require sponsors to flag potential constitutional infirmities in the ballot title, unless the measure is "clearly contrary to law" (Kurrus v. Priest, Donovan v. Priest, Plugge v. McCuen).

What makes a ballot title legally sufficient under Arkansas law?
Bailey v. McCuen is the workhorse case. The title must (1) impartially summarize the proposed amendment, (2) disclose essential facts that would give voters serious ground for reflection (omission of such a fact is fatal), (3) be brief enough to absorb in roughly five minutes (the Ark. Code Ann. § 7-5-309 voting-booth time limit), (4) be free of misleading tendency by amplification, omission, or fallacy, (5) avoid partisan coloring, and (6) convey an intelligible idea of the scope and significance of the change.

Can the AG fix typos and grammar without rejecting the whole submission?
Yes. The statute lets the AG "substitute and certify a more suitable and correct popular name and ballot title" if practicable. In this case the AG fixed the misspelled word "authorzing" in the sponsors' submitted ballot title and made other minor edits while certifying the substance.

What was the substance of this casino amendment?
Three casinos, one each in Boone, Miller, and Washington counties, operated by named LLCs; a new five-member Arkansas Gaming Commission appointed by the Governor; an 18% net casino gaming receipts tax to the state, 0.5% to the host county, and 1.5% to the host city; exemption from the Arkansas Gross Receipts Act of 1941 for casino gaming receipts; 24-hour operations; alcohol sales during operating hours; and a severability clause. The amendment did not pass; a different casino amendment (Issue 4 of 2018) was later enacted.

Why does it matter what the popular name and ballot title say if the full text is also part of the proposal?
Voters in the booth do not have the full text. They have the ballot title and the popular name. If those are misleading or omit something important, the Arkansas Supreme Court has been willing to throw measures off the ballot. The Court's "partisan coloring" doctrine reflects that the title is what voters actually decide on.

Background and statutory framework

Initiative-and-referendum process. Arkansas's direct-democracy mechanism comes from the constitution (the Initiative and Referendum Amendment) and is implemented through Title 7, Chapter 9 of the Arkansas Code. Sponsors must submit a popular name and ballot title to the AG for certification under Ark. Code Ann. § 7-9-107 before circulating petitions. The popular name is "primarily a useful legislative device" (Pafford v. Hall, 217 Ark. 734 (1950)) but must not be misleading or partisan-colored. The ballot title must impartially summarize the proposal (Becker v. Riviere, 270 Ark. 219 (1980)).

Standards for sufficiency. The leading case is Bailey v. McCuen, 318 Ark. 277 (1994). Bailey says a ballot title must include essential facts that would give voters "serious ground for reflection," be brief and concise, and be free of misleading tendency by amplification, omission, or fallacy. Crochet v. Priest, 326 Ark. 338 (1996), and Christian Civic Action Committee v. McCuen, 318 Ark. 241 (1994), describe "partisan coloring" as language with a "fatally misleading tendency" or that conveys only the proponents' impression of the activity. Becker v. McCuen, 303 Ark. 482 (1990), and Christian Civic Action Committee define impartiality and the need to convey scope and significance. Roberts v. Priest, 341 Ark. 813 (2000), addresses internal inconsistency in proposal text and its consequences for popular name and ballot title drafting.

The AG's role under the case law. Under Kurrus v. Priest, 342 Ark. 434 (2000), Donovan v. Priest, 326 Ark. 353 (1996), and Plugge v. McCuen, 310 Ark. 654 (1992), the AG generally does not require ballot-title disclosure of possible constitutional concerns unless the measure is "clearly contrary to law." The AG may, as part of review, raise constitutional concerns for sponsors' consideration (Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463 (1984)). The five-minute voting-booth time limit at Ark. Code Ann. § 7-5-309 figures into the brevity analysis under Bailey.

Other statutes. Ark. Code Ann. § 7-9-108 requires sponsors to include statutory instructions to canvassers and signers in every petition. Ark. Code Ann. § 5-55-601(b) makes petition fraud a Class A misdemeanor, listing specific prohibited acts including signing a name other than one's own, signing twice, knowingly soliciting signatures from people not entitled to sign, paying for signatures, and others. Ark. Code Ann. § 7-9-103 covers signer assistance for disabled persons. Ark. Code Ann. §§ 7-9-101 and 7-9-601 define "sponsor" and require canvassers to file with the Secretary of State.

Citations

Statutes: Ark. Code Ann. §§ 7-9-107, 7-9-107(b), 7-9-108, 7-5-309, 5-55-601(b), 7-9-103, 7-9-101, 7-9-601 (Supp. 2015).

Cases: 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 848 (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); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996); 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); Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000).

Source

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

Original opinion text

Opinion No. 2016-058
June 1, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Cal McCastlain, Esq.
Dover Dixon Horne PLLC
425 W. Capitol Avenue, Suite 3700
Little Rock, AR 72201-9151

Dear Mr. McCastlain:

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

AN AMENDMENT TO ALLOW THREE CASINOS TO OPERATE IN ARKANSAS, ONE EACH IN THE FOLLOWING COUNTIES: BOONE COUNTY, OPERATED BY ARKANSAS GAMING AND RESORTS, LLC; MILLER COUNTY, OPERATED BY MILLER COUNTY GAMING, LLC; AND WASHINGTON COUNTY, OPERATED BY WASHINGTON COUNTY GAMING, LLC

Ballot Title

An amendment to the Arkansas Constitution authorzing [sic] three casinos to operate in Arkansas, one in Boone County, Arkansas, operated by Arkansas Gaming and Resorts, LLC, an Arkansas Limited Liability Company, one in Miller County, Arkansas, operated by Miller County Gaming, LLC, an Arkansas Limited Liability Company, and one in Washington County, Arkansas, operated by Washington County Gaming, LLC, an Arkansas Limited Liability Company, all being subject to the laws enacted by the General Assembly in accord with this amendment and regulations promulgated by the Arkansas Gaming Commission in accord with laws enacted by the General Assembly; defining casino gaming and gaming as dealing, operating, carrying on, conducting, maintaining, or exposing for play any game played with cards, dice, equipment, or any mechanical, electromechanical, or electronic device or machine for money, property, checks, credit, or any representative value, as well as accepting wagers on sporting events or other events, including, without limiting the generality of the foregoing, any game, device, or type of wagering permitted at a casino operated within any one or more of the States of Louisiana, Mississippi, Missouri, Nevada, Oklahoma, Tennessee or Texas as of November 8, 2016, or as subsequently permitted thereafter; creating the Arkansas Gaming Commission to regulate casinos in accord with laws enacted by the General Assembly, with the Arkansas Gaming Commission comprised of 5 commissioners, each appointed by the Governor for staggered 5-year terms; providing for the General Assembly to appropriate monies to or for the use of the Arkansas Gaming Commission; requiring each casino to pay to the Arkansas State Treasury as general revenues a net casino gaming receipts tax equal to eighteen percent (18%) of its annual net casino gaming receipts; requiring each casino to pay to the county in which the casino is located a net casino gaming receipts tax equal to one-half of one percent (0.5%) of its annual net casino gaming receipts; requiring each casino to pay to the city or town in which the casino is located a net casino gaming receipts tax equal to one and one-half percent (1.5%) of its annual net casino gaming receipts; defining annual net casino gaming receipts as gross receipts for a 12 month period from casino gaming less amounts paid out or reserved as winnings to casino patrons for that 12 month period; subjecting each casino to the same income, property, sales, use, employment and other taxation as any for-profit business located in the county and city or town in which the casino is located, except that the Arkansas Gross Receipts Act of 1941 and local gross receipts taxes shall not apply to casino gaming receipts; allowing a casino to operate any day for any portion or all of any day; allowing the selling or complimentary serving of alcoholic beverages in casinos during all hours the casino operates but otherwise subject to all applicable Arkansas laws involving the distribution and sale of alcohol; permitting the shipment into Boone, Miller and Washington Counties, Arkansas, of gambling devices shipped and delivered in accordance with applicable federal law (15 USC §§ 1171-1178 and amendments and replacements thereto); rendering the provisions of this amendment severable; declaring inapplicable all constitutional provisions and laws to the extent they conflict with this amendment, but not otherwise repealing, superseding, amending or otherwise affecting Amendment 84 (bingo or raffles), Amendment 87 (state lottery) to the Arkansas Constitution or Arkansas Act 1151 of 2005 (Electronic Games of Skill).

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.

Applying the above precepts, it is my conclusion that the popular name is sufficient as proposed. It is necessary, however, to substitute a ballot title to correct minor grammatical and typographical errors in the ballot title as submitted. Accordingly, the following is hereby certified in order to ensure that, when construed together, the popular name and ballot title accurately set forth the purpose of the proposed measure:

[Certified popular name and revised ballot title follow in the official record. See the linked landing page for the complete certification, the canvassers' instructions enclosed under Ark. Code Ann. § 7-9-108, and the full text of the proposed amendment.]

Sincerely,
LESLIE RUTLEDGE
Attorney General