Did the Arkansas AG approve the 2017 'Fairplay Holdings' ballot title proposal that would have given specific people exclusive rights to operate casino gambling?

Plain-English summary

Sponsor Barry Emigh submitted a proposed constitutional amendment that would have authorized members of the "Fairplay Holdings Ballot Question Committee" (and certain transferees) to apply to the Alcoholic Beverage Control Board for exclusive gambling licenses, allowing 24/7 casino operations in larger Arkansas cities, with a tiered gambling tax and other detailed regulatory machinery. AG Leslie Rutledge rejected the popular name and ballot title for the third time.

The AG identified two threshold defects she had flagged in earlier opinions on the same series (Op. Att'y Gen. 2017-016, 2017-029, 2017-042) but that the sponsor had not fixed. First, the proposal said "any person(s)" could initiate a municipal ballot measure "pursuant to Article Five Section 1," but the bare reference would not give voters any meaningful description of how the initiation worked. Second, the proposal granted exclusive gambling rights to a specific group, the "Fairplay Holdings Ballot Question Committee" members, without telling voters who those members were, how the BQC was formed, or whether the membership could be ascertained before the election. The Arkansas Supreme Court's decision in Page v. McCuen (1994), which struck a casino amendment for failing to disclose that "the" designated casino site was already pinned to a specific parcel, set the standard the proposal failed to meet.

The AG also flagged length and complexity. The 833-word ballot title (down from 990 in earlier drafts) was still too long and detailed for voters to absorb within Ark. Code Ann. § 7-5-309's five-minute booth limit. The popular name, as worded, was a "gallimaufry" that would not give voters a usable label.

Currency note

This opinion was issued in 2017. 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.

Historical context: the Page v. McCuen problem

Page v. McCuen, 318 Ark. 342 (1994), is the controlling Arkansas case on hidden beneficiaries in proposed gambling amendments. There the proposed amendment authorized a casino on a "designated site," but the legal description in the measure pinned the site to a particular parcel owned by specific individuals. The court held that the ballot title's "designated site" language misled voters into thinking the site was still to be selected, when in fact passage of the amendment would automatically vest casino rights in the parcel owner. That kind of omission, the court said, would give voters "serious ground for reflection" if disclosed.

The Fairplay Holdings proposal sat squarely in Page's shadow. The exclusive gambling licenses ran to a specific list of "Fairplay Holdings BQC Members" identified on a statement of organization filed under Ark. Code Ann. § 7-9-404. Voters had no way to learn who those members were before voting on whether to grant them an enormous exclusive privilege. The AG's instruction was that any redrafted ballot title would need to identify the members, or at least tell voters how to identify them.

Common questions

What is a "popular name" and why did this one fail?

A popular name is a short, descriptive label that lets voters discuss a measure before the election. Pafford v. Hall (1950) called it a "useful legislative device." The Fairplay Holdings popular name, "An Amendment to the Arkansas Constitution to License the Fairplay Holdings Ballot Question Committee Members to Operate Gambling as a Municipal Ballot Measure," tried to fit nearly the entire ballot title into the popular name. The AG called it "a gallimaufry, a confusing jumble" and noted that the literal wording was "nonsensical."

Why did the length matter so much?

Voters in Arkansas are limited to five minutes in the booth under Ark. Code Ann. § 7-5-309. The Arkansas Supreme Court has repeatedly held that ballot titles must be short enough to allow "intelligent considerate decision[s]" within that window (Dust v. Riviere). At 833 words, this title sat in territory the court had previously called "complex, detailed, lengthy, misleading and confusing" (in Dust the title at issue was 706 words and the court struck it).

Could the proposal ever have been certified?

The AG flagged a structural worry the sponsor had to confront. The proposal was so detailed (eleven sections covering licensing, taxation, hours of operation, controlled beverages, paraphernalia, ABC Board rulemaking deadlines, license transfers, criminal background checks, and more) that the AG suggested it might be impossible to draft a valid ballot title for it at all. As Page v. McCuen put it, some proposals are "so expansive" that they preclude an acceptable ballot title.

Was this related to other Arkansas casino measures?

Yes. The 2010s saw a series of proposed Arkansas casino measures, most of which were rejected at ballot-title review. The Emigh series (Opinions 2016-099, 2017-016, 2017-029, 2017-042, 2017-055) tracked one sponsor's repeated submissions. A separate line of casino-related opinions tracked competing proposals from other sponsors. The Arkansas Casino Gaming Amendment that ultimately passed in 2018 was the product of a different drafting effort.

Citations

• Ark. Code Ann. § 7-9-107 (AG ballot-title certification)
• Ark. Code Ann. § 7-9-404 (BQC statement of organization)
• Ark. Code Ann. § 7-5-309 (five-minute booth limit)
• Ark. Code Ann. § 25-15-203 (Arkansas Administrative Procedure Act)
• Ark. Const. art. 5, § 1 (citizen-initiated amendments)
• Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994) (hidden beneficiary)
• Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982) (length and complexity)
• Walker v. Priest, 342 Ark. 410, 29 S.W.3d 657 (2000)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Lange v. Martin, 2016 Ark. 337
• Wilson v. Martin, 2016 Ark. 334

Source

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

Original opinion text

Opinion No. 2017-055
May 19, 2017

Barry Emigh, Sponsor
[address redacted]
Hot Springs, AR 71913-4225

Dear Mr. Emigh:

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.

[General ballot-title standards summarized: brevity, impartiality, "free of any misleading tendency whether by amplification, omission, or fallacy," "honestly and accurately reflect" the measure, technical terms must be defined, omitted "essential facts" must be disclosed, must allow a "reasoned decision in the voting booth" within Ark. Code Ann. § 7-5-309's five-minute limit.]

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 THE ARKANSAS CONSTITUTION TO LICENSE THE FAIRPLAY HOLDINGS BALLOT QUESTION COMMITTEE MEMBERS TO OPERATE GAMBLING AS A MUNICIPAL BALLOT MEASURE.

Ballot Title: [833 words describing a proposed constitutional amendment that would authorize "any person(s)" within municipalities of more than 20,000 people to initiate a local ballot measure to authorize "Fairplay Holdings BQC members" or transferees to be issued a gambling license by the Alcoholic Beverage Control Board to operate gambling 24 hours a day, 7 days a week, with the sale and complimentary service of controlled beverages on site during gambling hours; setting an 18% gambling tax with additional 2%, 3%, and 4% step-ups at $14M, $28M, and $56M annual gross income thresholds; an annual $75,000 license fee; a 1/3 share of gambling tax to the host city and 1/3 to the host county; a personal income tax withholding on winnings over $2,500; preserving Oaklawn Race Track and Southland Race Park; requiring ABC Board rulemaking under the Arkansas Administrative Procedure Act; severability and self-executing clauses; and an effective date of January 1, 2019.]

SUMMARY RESPONSE

Your popular name again cannot be certified primarily because its wording is very confusing to the point of being nonsensical. In its current form, it could not be viewed as a short, descriptive label that would enable voters to easily identify your proposal for discussion purposes. Your ballot title is impermissibly misleading in failing to fairly or completely summarize the substance of your lengthy and complex proposal in a way such that voters will be able to understand the proposal within the allotted time in the voting booth.

Based on what has been submitted, my statutory duty is to reject your proposed popular name and ballot title.

[Discussion of legal standards on popular name and ballot title.]

DISCUSSION

1. Popular Name

Your popular name, in my opinion, is too long and confusing to be considered a "useful legislative device." As I have previously explained in response to your prior submissions [Ops. Att'y Gen. 2017-042, 2016-099], the popular name must be a short, descriptive reference for your proposed measure. As quoted above, the Court has described the popular name as something "designed to make it easy for voters to discuss the proposal prior to the election, by giving them a label to identify it."

Your most recent proposed popular name wholly fails to meet this standard. Instead, it is a gallimaufry, a confusing jumble of certain features of your proposed measure. The literal wording is nonsensical. As worded, the popular name indicates that the Fairplay Holdings Ballot Question Committee members would "operate gambling as a municipal ballot measure." This makes no sense, owing to clear syntactical problems. In my opinion, the Court would not view this proposed popular name as a sufficiently descriptive label that will enable voters to easily identify the measure for discussion purposes. In light of this fundamental problem, I cannot at this point substitute a more suitable and appropriate popular name.

2. Ballot Title

In my last opinion to you, I pointed out two critical, threshold problems with the text of your measure that precluded me from crafting a suitable substitute ballot title. These threshold problems have not been satisfactorily addressed.

The first problem again concerns the initiation of gambling ballot measures under your proposed constitutional amendment. You have changed your proposal to now state that "any person(s)" (sic) (within certain jurisdictions) may initiate a municipal ballot measure "pursuant to Article Five Section 1" (sic) to authorize only a "Fairplay Holdings Ballot Question Committee" member or members to be issued a gambling license. I presume you intend to reference Article 5, section 1 of the Arkansas Constitution, but this is not clear from your proposal. Additionally, as I mentioned to you in my previous opinion, such a mere reference, without more, would not be sufficient clarification to tell the voters how this "initiation" process takes place.

The second threshold problem again concerns your reference to the "Fairplay Holdings Ballot Question Committee" and its members. As I mentioned in my previous opinion, your proposal (and thus its ballot title) lacks any specifics about who comprises, or would comprise, the membership of this "Fairplay Holdings Ballot Question Committee," how this committee is formed, and who has the authority to form it or amend its organizing documents. Nor does your proposal or ballot title give any hint as to how, or even if, the voters would be able to ascertain who those "members" are prior to casting their votes on a constitutional amendment that would grant those "members" an enormous and exclusive privilege. I believe the Court would see this as a serious omission that, if included, would give voters "serious ground for reflection."

In Page v. McCuen, the Arkansas Supreme Court looked at a proposed gambling amendment that would have permitted a casino on a specific piece of property owned by unknown individuals. The Court stated that even though the legal description of the property to be granted exclusive casino rights was in the proposed amendment, "[a]ny voter reading the ballot title ... would unwittingly be led to believe that 'a designated site' is yet to be selected. Not so." The Court held that this was a serious omission from the ballot title:

Before casting their ballots, voters no doubt would pause for reflection if they were aware "the" designated site had already been established in the proposed constitutional measure itself, thereby guaranteeing the site's owner whatever benefits that would result from the measure's passage.

In my opinion, the exclusive gambling privileges guaranteed under your proposed measure are analogous to those in Page. In fact, the privileges are more specific than the rights that would have been guaranteed in that case. I believe the Court would undoubtedly, in the event of a ballot title challenge, require your ballot title to identify, or at the very least inform the voters how they could identify, the membership of this "Fairplay Holdings Ballot Question Committee."

I also note, as with your two most recent submissions [Ops. Att'y Gen. 2017-029 and 2017-016], that your ballot title again appears overly long and complicated. As I have previously explained, despite the Court's willingness to give Amendment 7 a liberal construction when determining the sufficiency of a ballot title, "that does not mean that liberality knows no bounds or [that] common sense has no place in the matter." The Court explained:

While neither the length nor complexity of the ballot title should be a controlling factor, it is a consideration. The great majority of Arkansas voters are limited, as a practical matter, in the amount of time that can be spent considering such a proposal. Furthermore, common sense requires that we ask whether the average voter can make an intelligent considerate decision based on the ballot title.

I take note that you have shortened your ballot title, 833 words this time, down from the 845 words and 990 words in your previous two submissions. But it remains my opinion that the ballot title you have submitted would not meet the Court's standards for intelligent consideration by the voters in the allotted time. This continues to be a consequence of the confusing nature of your proposal's text.

Page v. McCuen, discussed above, serves as an example of just the kind of dilemma faced by the sponsors of lengthy and complex measures. In Page, the Court pointed out that the casino measure at issue there was so all-encompassing that to include every important factor of the measure in the ballot title would render the title "so complex, detailed and lengthy that the Arkansas voter could not intelligently make a choice on the title within the five minutes allowed in the voting booth."

The Court concluded that the proposed measure in that case was "so expansive that it preclude[d] the writing of an acceptable ballot title."

Accordingly, should you choose to revise and resubmit your measure and ballot title to address the above concerns, your ballot title must thoroughly but judiciously recite the proposed amendment's important features in an effort to avoid the problem that the sponsors in Page faced. The ballot title for any measure of such length and complexity as yours must avoid both being too lengthy and omitting important matters. In other words, the title cannot be so long that it causes voters to violate the voting booth time limitations, yet it must not omit any of the proposed measure's important features.

These fundamental, threshold issues must be significantly clarified and set out in your proposal with specificity so that they may be adequately summarized in a ballot title that will meet the Court's standards. Until these matters are addressed, I cannot proceed with a more thorough review of your proposed amendment.

I must once again reiterate that any revision of your proposal must be seriously undertaken with a studied effort to thoroughly clarify, and ideally simplify, your proposed amendment so that a legally sufficient ballot title may be crafted. Amending the Arkansas Constitution is a very serious matter, and the Supreme Court holds popular names and ballot titles of proposed constitutional amendments to a standard that is commensurate with this seriousness.

CONCLUSION

The problems noted above are not necessarily all that are contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. They render me unable to substitute language in a ballot title for your measure. Further, additional issues 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 popular name and ballot title for the foregoing reasons.

Sincerely,
LESLIE RUTLEDGE
Attorney General

Enclosure: [Full text of the proposed Fairplay Holdings amendment, including Sections 1 through 13: gambling as a local ballot measure; Fairplay Holdings BQC member roster transferred from Arkansas Ethics Commission filings; issue and transfer of gambling licenses; ABC Board regulation of gambling and controlled beverages including 240-day rulemaking deadlines, zoning, equipment registration, criminal background checks, and license revocation; tiered gambling tax (18% base plus 2%/3%/4% at $14M/$28M/$56M thresholds), $75,000 annual license fee, 1/3 host-city and 1/3 host-county tax shares; General Assembly funding obligation; preservation of Oaklawn Race Track in Garland County and Southland Race Park in Crittenden County; waiver of criminal offenses relating to gambling under Ark. Code Ann. §§ 5-66-103, 110, 112; severability; self-executing; effective January 1, 2019.]