Did the Arkansas Attorney General certify the proposed Arkansas Cannabis Amendment for the ballot in 2016?

Plain-English summary

Sponsor Mary L. Berry submitted a proposed constitutional amendment to the Arkansas Attorney General, titled the "Arkansas Cannabis Amendment," that would have legalized both medical and recreational cannabis cultivation, sale, possession, and use, while expunging certain past convictions. AG Leslie Rutledge rejected the popular name and ballot title, concluding she could not impartially summarize the measure because the underlying text contained numerous unresolved ambiguities. She declined to substitute her own corrected version and instructed the sponsor to redesign and resubmit the proposal.

The opinion flagged ten specific problems, ranging from undefined terms ("lawful" paraphernalia, "products produced") to questions about whether the General Assembly retained any regulatory authority, whether a DEA registration had to be currently valid, whether an employer could permit some marijuana-related activities but not others, and several others.

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.

Arkansas has since adopted medical marijuana under a separate 2016 amendment (Amendment 98, the Arkansas Medical Marijuana Amendment, sponsored by a different group and certified by the AG that same cycle). The Berry proposal at issue here never made the ballot.

Background and statutory framework

Under Ark. Code Ann. § 7-9-107, the Arkansas Attorney General must certify the popular name and ballot title of every proposed initiated amendment or act before sponsors can circulate petitions for signature. The AG's role is narrow: she does not assess the merits or policy wisdom of the proposal. She only determines whether the popular name and ballot title fairly, intelligibly, and impartially summarize what the measure would do.

If the proposed wording is acceptable, the AG certifies it. If it is fixable, she may substitute a more suitable version. If the text of the proposal itself is internally inconsistent or unclear, the AG cannot write an accurate summary at all, and must reject.

The Arkansas Supreme Court precedents the opinion relies on (Bailey v. McCuen, Plugge v. McCuen, Roberts v. Priest, and others) hold that a ballot title must be free of misleading tendencies, must avoid partisan coloring, and must disclose essential facts that would give voters serious ground for reflection, while still being brief enough to be read inside the five-minute booth limit in Ark. Code Ann. § 7-5-309. When the underlying measure has internal contradictions, the Court has said the AG cannot draft around them.

The ten ambiguities the AG flagged

1. Whether the General Assembly could still make some cannabis equipment unlawful given the proposal's reference to "lawful" paraphernalia.
2. How a plant tag would be transferred when marijuana is converted into "products produced" rather than sold as a plant.
3. Whether a "physician" needed a currently valid DEA registration, or only one issued at some point in the past.
4. Whether "lawful items and substances manufactured from the cannabis plant" referred to state law or also federal law (which would gut the definition).
5. What level of "need" triggered an adult's ability to procure medical marijuana on behalf of a patient.
6. Whether the state could require some but not all persons handling industrial hemp to obtain a hemp license.
7. Whether "the regular sales tax" meant the state sales tax, local sales taxes, or both.
8. How paraphernalia would be treated for someone wishing to both manufacture and sell it.
9. Whether paraphernalia being "distributed" (as opposed to "sold") could contain marijuana.
10. Whether an employer could permit fewer than all of the listed marijuana-related activities in the workplace.

Common questions

Q: Did this cannabis amendment ever appear on the Arkansas ballot?
A: No. After this rejection, the sponsor would have needed to redesign the text and resubmit for a new certification. Separately, a medical-marijuana measure with different sponsors (Amendment 98) was certified that cycle and was adopted by Arkansas voters in 2016.

Q: Why did the AG not just fix the ballot title herself?
A: Ark. Code Ann. § 7-9-107(b) lets the AG substitute a more suitable title only if she can do so accurately. The opinion explains that ambiguities inside the proposal itself, not just the title, made an accurate summary impossible. Fixing the title alone would not have solved the underlying text problems.

Q: Does an AG rejection mean the amendment was unconstitutional or that the AG disapproved of cannabis legalization?
A: No. The opinion expressly states that certification is "in no way a reflection of my view of the merits of a particular proposal." The decision is purely procedural: can voters be given an honest summary of what they would be approving?

Q: What does "partisan coloring" mean in this context?
A: The Arkansas Supreme Court has used the phrase to describe ballot language that creates a "fatally misleading tendency" or that frames the measure only as its proponents would like, rather than impartially. It is a long-standing test for ballot-title validity in Arkansas.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (Supp. 2015), certification of popular names and ballot titles
• Ark. Code Ann. § 7-5-309, five-minute time limit for voting in the booth

Cases on ballot title sufficiency:

• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), the "essential fact" disclosure standard
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), internal inconsistencies in proposal text
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992), and the related Kurrus and Donovan opinions, on the "clearly contrary to law" deference rule
• Walmsley v. Martin, 2016 Ark. 337, and Wilson v. Martin, 2016 Ark. 334, recent Court guidance on the "adequately informs" test and the disapproval of undefined technical terms

Source

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

Original opinion text

Opinion No. 2016-100
October 14, 2016
Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
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
Arkansas Cannabis Amendment

Ballot Title
An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of the cannabis plant and products produced therefrom may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; providing for the release from incarceration, probation, or parole of all persons whose current and only conviction(s) in which they are serving were of State laws pertaining to the cultivation, production, distribution, sale, and possession of marijuana or possession of marijuana paraphernalia, and the expungement of records relating to such conviction(s); dividing cannabis into industrial hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and sale of industrial hemp and products produced therefrom; providing that anyone 18 years of age or older may obtain an industrial hemp license permitting the person to cultivate industrial hemp; authorizing both medical and recreational use of marijuana; providing that anyone 21 years of age or older may obtain a marijuana license permitting the person to cultivate, produce, and sell marijuana and products produced therefrom; providing that a licensed person may cultivate up to 36 cannabis plants in a location not subject to public view without optical aid; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% excise tax; providing that the State shall not impose any tax on the retail sale of medical marijuana to patients; permitting medical use of marijuana by a person of any age whose physician has recommended such use in writing; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under State law; and providing that the amendment (a) is not intended to require employers to permit activities relating to marijuana in the workplace, (b) is not intended to permit driving under the influence of marijuana, (c) is not intended to permit the transfer of recreational marijuana to anyone under 21 years of age, (d) nor permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana.

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, a ballot title will not be legally sufficient unless it "adequately
inform[s]" the voters of the contents of a proposed amendment or act so that they
can make a "reasoned decision in the voting booth." A ballot title's failure to
"honestly and accurately reflect what is contained in the proposed [act or]
Amendment" may lead the Court to conclude that the "omission is significant."
The Court has also disapproved the use of terms that are "technical and not readily
understood by voters." Without a definition of such terms in the ballot title, the
title may be deemed insufficient.

Additionally, 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.

1. The term "marijuana paraphernalia" is defined in section 3(f) as any "lawful" equipment, etc., meeting the definition's description. Section 2 of the proposal provides that listed activities with respect to cannabis and "products produced" therefrom shall be regulated pursuant to the amendment. It is uncertain whether these provisions are intended to permit the General Assembly to make certain equipment, etc., unlawful. Similarly, section 2 provides that "products produced" are both regulated and made lawful, and section 3(j) limits "products produced" to "lawful" items. The General Assembly's permissible regulatory reach is unclear under these provisions.

2. Section 3(g) provides that a plant tag "is used for tracking the plants [sic] origin from cultivation to sale." It is unclear and ambiguous how and when a plant tag may lawfully be separated from marijuana that is not sold as a plant but rather is converted into "products produced" before sale.

3. Section 3(i) defines "physician" in part by reference to a "valid, unrestricted, and existing" state license, and a DEA registration that has been issued at some time in the past. The presence of "valid, unrestricted, and existing" with respect to the state license, and those words' absence with respect to the DEA registration make uncertain whether mere past issuance of a DEA registration is sufficient to satisfy that part of the definition, even if the registration is then invalid, restricted, and/or expired.

4. Section 3(j) refers to "lawful items and substances manufactured from the cannabis plant." It is uncertain which law is referred to. If the reference includes federal law, it may be that few if any items or substances will qualify as "products produced" under the proposal.

5. Section 3(l) refers to an adult who may procure medical marijuana for a patient "if needed." It is unclear what degree of necessity must be present for this provision to be triggered. It is also unclear whether the need must be ongoing or may merely be a one-time or occasional condition.

6. Section 4(d) provides that the state shall not require "all" persons who undertake certain activities to possess a hemp license. It is unclear whether the state may require some but not all persons to possess such a license.

7. Section 5(e) refers to "the regular sales tax." It is not clear whether this phrase refers to the state sales tax, local sales taxes, or both.

8. Section 7(a) provides that a person may manufacture, etc., marijuana paraphernalia "or" may distribute and sell the same. It is unclear how the proposal will treat a person who wishes both to manufacture and sell paraphernalia.

9. Section 7(a) provides that paraphernalia "being sold" may not contain marijuana. It is unclear whether paraphernalia being, for example, distributed must not contain marijuana.

10. Section 8(a) provides that an employer is not required to permit cultivation, production, distribution, sale, possession, and use of marijuana. It is unclear whether the proposal would be interpreted to require an employer to permit fewer than all of the named activities.

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