Why did the Arkansas AG reject Ed Frizzell's 'Multi-Member Districts Amendment' ballot title in September 2017?

Plain-English summary

Ed Frizzell asked the Arkansas Attorney General to certify the popular name and ballot title of an amendment that would create legislative districts electing several members each. The proposed title described fewer Senate and House districts, five members elected from each district, straight district lines, and ballots showing candidates' names without party affiliations.

The AG rejected the submission because its title gave voters an uncertain account of how districts would be drawn. One part said the Board of Apportionment would use straight lines and adjust district size for equal numbers of voters. Another said the new system would provide for the expression of geographical, community and political interests. The AG said the amendment's text did not clearly show that redistricting would use any consideration other than population equality. She needed that uncertainty resolved before she could review the submission fully.

The AG reserved review of the proposed popular name until any resubmission. She also noted a continuing concern that the proposed districting process might be too difficult to summarize in a title that would let an average voter compare the proposed districts with existing ones. She did not reach a final decision on that separate concern.

Currency note

This is the AG's response to a 2017 proposal. It does not establish the current structure of Arkansas legislative districts or current ballot-title requirements. Check current law and the status of any later proposal before relying on this opinion.

Background and statutory framework

Ark. Code Ann. § 7-9-107 required AG review of a proposed popular name and ballot title before petitions circulated. The opinion says the title must give voters an intelligible idea of the scope and significance of a change in law. The AG had already discussed that standard in responses to Frizzell's earlier submissions, Opinions 2017-050 and 2017-070.

Under the existing apportionment approach described in the opinion, numerical equality was paramount. The Board could also consider county territory, voters' convenience, communities of interest, natural boundaries and other geographic factors. Frizzell's proposed title presented a different plan, but its description of how the new districts would account for community and political interests did not clearly match the proposal's text.

The AG's reasoning

The title first described straight lines producing rectangular districts adjusted to contain equal numbers of voters. The AG said that description appeared consistent with the proposal's text. The title then said the multi-member process would “provide the expression of geographical, community, and political interests.” That phrase suggested those interests would also guide reapportionment, while the AG could not find that direction clearly stated in the amendment itself.

The AG called this a threshold ambiguity. She rejected the title and instructed Frizzell to redesign the measure and title before resubmitting them. She said other ambiguities might surface on review of revisions. She made no merits judgment on the proposed districting system.

Common questions

Why did the AG reject this ballot title?

The title suggested that district lines would reflect community and political interests as well as equal population. The AG could not tell from the amendment's text whether those additional interests would guide drawing the districts. She said voters needed a clear account of the proposed change.

Did the AG rule that multi-member districts were unlawful?

No. She limited this review to whether the title accurately and impartially summarized the proposal. She expressly disclaimed any judgment on the measure's merits.

Did the AG approve the proposed popular name?

No. She reserved review of its sufficiency until a possible resubmission.

Could Frizzell revise and resubmit the measure?

Yes. The opinion instructs him to redesign the proposed measure and title and says he may resubmit them with a proposed popular name.

Was the district-line method otherwise acceptable as a ballot description?

The AG did not decide that question. A footnote repeats her concern that the process might not fit into a title that would let an average voter understand how the proposed district boundaries would compare with existing ones.

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLED GE

Opinion No. 2017-095

September 19, 201 7

Ed Frizzell, Sponsor
12 Meadow Creek
Conway, AR 72032

Dear Mr. Frizzell:

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 constitutional 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 proposed 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

323 CENTER STREET. SU ITE 200 · LI TTLE RO C K. ARKAN SAS 7220 1 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKAN SASAG.GOV

Ed Frizzell, Sponsor
Opinion No. 2017-095
Page 2

contrary to law," 1 this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities.2 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 honestlr, 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 Multi-Member Districts Amendment

Ballot Title

Amending the Arkansas Constitution changing the number of Arkansas Senate Districts from thirty-five to seven with five senators elected from each district; changing the number of representatives in the Arkansas House of Representatives from one hundred to one hundred and five; changing the number of Arkansas House of Representatives Districts from one hundred to twenty-one (three House Districts in each Senate District) with five representatives 1
See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931S.W.2d119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841S.W.2d139 (1992). 2 As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents. 3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).

Ed Frizzell, Sponsor
Opinion No. 2017-095
Page 3

elected from each district; changing the way the districts are drawn in irregular shapes based on natural boundaries, geographical interests, community boundaries, and political considerations as specified in Amendment 23 of the Arkansas Constitution to a system that requires the Arkansas Board of Apportionment to draw the districts using straight lines to create rectangular shapes adjusted in size to create districts with an equal number of voters; using the multi-member district election process to provide the expression of geographical, community, and political interests; change the ballot format so that only the candidate's name appears on the ballot.

RESPONSE

I am unable to proceed with a substantive review of your submission and again must reject the ballot title for your proposed constitutional amendment to redistrict the legislature. 4 The ballot title you have submitted creates uncertainty regarding the changes in current law under your proposed constitutional amendment. The ballot title is consequently deficient, and I cannot further assess your submission without clarification of this threshold ambiguity.

As I explained in my opinions regarding your previous submissions, 5 the ballot title must convey to the voters an intelligible idea of the scope and significance of the changes in current law they are being asked to approve. Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible to craft a popular name and ballot title that will satisfy the standards established by the Arkansas Supreme Court.

Your proposal would fundamentally change existing law governing the way legislative districts are drawn and the membership of the legislature is apportioned. Currently, "numerical equality of the districts" is the "paramount consideration" in the formation of reapportionment plans pursuant to Article 8 of the Arkansas Constitution. 6 But it is also proper for the apportionment authority to

4
I will reserve until resubmission, if any, reviewing the sufficiency of your proposed popular name. 5 Ops. Att'y Gen. 2017-070, 2017-050.
6
Wells v. White, 274 Ark. 197, 200, 623 S.W.2d 187, 189 (1981).

Ed Frizzell, Sponsor
Opinion No. 2017-095
Page 4

consider the "territorial area of counties," "convenience of electors,"7 and the "existing legislative districts, communities of interest, natural boundaries, incumbency and geographic interests. " 8

The ballot title you have submitted describes your proposed measure, in part, by stating that it would:

... chang[ e] the way districts are drawn ... to a system that requires the Arkansas Board of Apportionment to draw the districts using straight lines to create rectangular shapes adjusted in size to create districts with an equal number of voters.

This ballot title language indicates that population equality is the objective of redistricting under your proposed constitutional amendment. This appears to be consistent with the actual text of the measure. But the ballot title you have submitted also states that the proposed amendment would "[use] the multi-member district election process to provide the expression of geographical, community, and political interests." (Emphasis added). This will indicate to voters that reapportionment under your proposal will be guided by various considerations other than simply equal population-considerations that can factor into reapportionment under existing law. 9 However, it is not clear from the face of the actual text of your proposed amendment that redistricting will be based on any consideration other than population equality.

Your ballot title therefore creates uncertainty regarding the proposed change in law under your initiated measure. I am rejecting your submission at this time because of this confusion and disconnect between the language in your proposed ballot title and the language in the proposed measure. This fundamental ambiguity

7
Smith v. Board of Apportionment, 219 Ark. 611, 612, 243 S.W.2d 755, 756 (1951). See also Harvey v. Clinton, 308 Ark. 546, 548, 826 S.W.2d 236, 237 (1992) (noting that "[a]nother consideration in apportioning the members is insuring some voice to all political subdivisions[,]" citing Taylor v. Clinton, 284 Ark. 170, 680 S.W.2d 98 (1984)). 8 Wells, 274 Ark. at 201, 623 S.W.2d at 189 ("A review of the cases on this subject would indicate that the first consideration is that of equal population districts. The second guideline is the observation of local subdivision entities. A third guideline is that the reapportionment authority avoid multi-member districts whenever possible. Also, it is proper to consider existing legislative districts, communities of interest, natural boundaries, incumbency and geographic interests."). 9 Id.

Ed Frizzell, Sponsor
Opinion No . 2017-095
Page 5

must be resolved before I can undertake a thorough, studied review of your submission.

CONCLUSION

This review has been limited to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment. I have set out the basic guidelines in my responses to your previous submissions and will not restate them here. The threshold ambiguity noted above is not necessarily the only ambiguity attending your submission, but it is sufficiently serious to require me to reject your popular name and ballot title. Further, additional ambiguities may well come to light on review of any revisions to your proposal. 10

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. 11 You may resubmit your proposed amendment along with a proposed popular name and ballot title at your convenience.

Sincerely,

~ ?::::> /P
L ESLIE RUTLE~
Attorney General

10
I will note in particular my continued concern that the process you propose for constituting legislative districts is not capable of summation in a ballot title that will enable the average voter to fully recognize how district boundaries under your proposal will compare to existing districts. See Op. Att'y Gen. 2017-070. 11 Ark. Code Ann . § 7-9-107(c).

SEP O5 2017/'
ATTORt\i _::Y GEN.E;~.11.r
Arkansas Multi-Member Districts Amendment OF ARKANSAS
·~
.

AMENDING THE ARKANSAS CONSTITUTION CHANGING THE NUMBER OF ARKANSAS SENATE DISTRICTS FROM THIRTY-FIVE TO SEVEN WITH FIVE SENATORS ELECTED FROM EACH DISTRICT; CHANGING THE NUMBER OF REPRESENTATIVES IN THE ARKANSAS HOUSE OF REPRESENTATIVES FROM ONE HUNDRED TO ONE HUNDRED AND FIVE; CHANGING THE NUMBER OF ARKANSAS HOUSE OF REPRESENTATIVES DISTRICTS FROM ONE HUNDRED TO TWENTY-ONE (THREE HOUSE DISTRICTS IN EACH SENATE DISTRICT) WITH FIVE REPRESENTATIVES ELECTED FROM EACH DISTRICT; CHANGING THE WAY THE DISTRICTS ARE ORA WN IN IRREGULAR SHAPES BASED ON NATURAL BOUNDARIES, GEOGRAPHICAL INTERESTS, COMMUNITY BOUNDARIES, AND POLITICAL CONSIDERATIONS AS SPECIFIED IN AMENDMENT 23 OF THE ARKANSAS CONSTITUTION TO A SYSTEM THAT REQUIRES THE ARKANSAS BOARD OF APPORTIONMENT TO ORAW THE DISTRICTS USING STRAIGHT LINES TO CREATE RECTANGULAR SHAPES ADJUSTED IN SIZE TO CREATE DISTRICTS WITH AN EQUAL NUMBER OF VOTERS; USING THE MULTI-MEMBER DISTRICT ELECTION PROCESS TO PROVIDE THE EXPRESSION OF GEOGRAPHICAL, COMMUNITY, AND POLITICAL INTERESTS; CHANGE THE BALLOT FORMAT SO THAT ONLY THE CANDIDATE'S NAME APPEARS ON THE BALLOT.

Whereas the population of Arkansas is heterogeneous; Whereas all people require of their government an equal voice in who represents them; Whereas democracy holds intrinsic value; Whereas a state moves forward by tapping into the intelligence and energies of all its people; we set forth the Arkansas Multi-Member Districts Amendment.

§ 1. Definitions
(A) At-large - representing or being elected by the whole body of electors registered to vote within a given district.
(B) Arkansas House - Arkansas House of Representatives

(C) Containing District - The Arkansas Senatorial District that a given Arkansas House of Representative District is contained in shall be designated as that Arkansas House District's Containing District.
(D) Current Census- The most recent United States Census. (E) Distribution Quota - The number of electors to be assigned to a given district shall be called the Distribution Quota.
(F) Distribution Zone - Permanent distribution regions with fixed horizontal borders running latitudinally across the state that are to be used in creating and recreating districts.
(G) Height (of a Containing District)-The distance from the northern boundary of the Distribution Zone to the southern boundary of that zone. If a Containing District "wraps around" and is in two Distribution Zones, then the height shall be the larger of the two heights, but not the combined heights.
(H) Multi-Member District- electoral districts that send two or more members to a legislative chamber.
(I) Width (of a Containing District)-The distance from the western boundary of the Containing District to the eastern boundary of that Containing District. If a Containing District "wraps around" and is in two Distribution Zones, then the width shall be calculated by measuring the width of the Containing District separately in each zone and then adding the two widths together.

§ 2. Permanent Distribution Zones
(A) Permanent distribution zones are henceforth delineated to use when the districts for the Arkansas Senate and the Arkansas House are being established according to§ 3 and§ 4 of this amendment.
(B) The east and west boundaries of each zone shall be the boundary of the State of Arkansas at the east and west ends of each zone. The north and south boundaries of each zone shall be as follows:
(1) Zone one shall be between thirty-six (36) degrees, thirty (30) minutes north latitude (36°30'N) and thirty-five (35) degrees, forty-five (45) minutes north latitude (35°45'N).
(2) Zone two shall be between thirty-five (35) degrees, forty-five (45) minutes north latitude (35°45'N) and thirty-five (35) degrees, zero (0) minutes north latitude (35°0'N).
(3) Zone three shall be between thirty-five (35) degrees, zero (0) minutes north latitude (35°0'N) and thirty-four (34) degrees, twenty (20) minutes north latitude (34°20'N).
(4) Zone four shall be between thirty-four (34) degrees, twenty (20) minutes north latitude (34°20'N) and thirty-three (33) degrees, forty (40) minutes north latitude (33°40'N).

(5) Zone five shall be between thirty-three (33) degrees, forty (40) minutes north latitude (33°40'N) and thirty-three (33) degrees, zero (0) minutes north latitude (33°0'N).

§ 3. Establishing Districts for the Arkansas Senate - Thirty-five members (A) Section 3 of Article 8 to the Arkansas Constitution of 1874 shall be replaced with the following:
(1) ,The Arkansas Senate shall have seven (7) districts. Each Arkansas Senate District shall have five (5) at-large delegates.
(2) The total population of the state above the age of eighteen at the time of the Current Census shall be divided by seven (7) to determine the Distribution Quota for each Arkansas Senate District.
(3) Districts shall be established by moving a longitudinal border eastward or westward across a Distribution Zone until the population included in the district meets the Senate Distribution Quota.
( 4) Movement of the longitudinal border shall be eastward in Distribution Zones #1, #3, and #5. Movement of the longitudinal border shall be westward in Distribution Zones #2 and #4.
( 5) When an easternmost or a westernmost extreme of a zone has been reached and the Senate Distribution Quota has not been filled, distribution will continue in the zone to the south according to the direction set out above.
I

( 6) Distribution Quotas may be adjusted by plus or minus ten percent (+/-10%) to allow longitudinal borders to end at the state line.
(7) Each Arkansas Senate District shall contain three Arkansas House Districts.

§ 4. Establishing Districts for the Arkansas House - One hundred and five members (A) Section 2 of Article 8 to the Arkansas Constitution of 1874 shall be replaced with the following:
(1) The Arkansas House shall consist of one hundred and five members.
(1) The Arkansas House shall have twenty-one (21) districts, three (3) in each Arkansas Senate District. Each Arkansas House District shall have five (5) at-large delegates.
(2) After the Arkansas Senate Districts are finalized, the total population of each Containing District above the age of eighteen at the time of the Current Census shall be divided by three (3) to determine the Distribution Quota for each Arkansas House District in that Containing District.
(3) Arkansas House Districts within a Containing District with a Height greater than its Width shall be determined by moving latitudinal borders from north to south

down the Containing District until the population included in each Arkansas House District meets the House Distribution Quota for that Containing District.
(4) Arkansas House Districts within a Containing District with a Width greater than its Height shall be determined by moving longitudinal borders in the direction specified for each Distribution Zone across the Containing District until the population included in each Arkansas House District meets the House Distribution Quota for that Containing District.
(5) When an easternmost or a westernmost extreme of a zone has been reached and the House Distribution Quota has not been filled, distribution will continue in the zone to the south according to the direction set out above.
(6) Distribution Quotas may be adjusted by plus or minus ten percent (+/-10%) to allow longitudinal borders to end at the state line.

§ 5. Duties of Board of Apportionment
(A) Section 4 of Article 8 to the Arkansas Constitution of 1874 shall be replaced with the following:
(1) The 2020 Arkansas Senate, and Arkansas House Districts shall be established in accordance with this Amendment by the Arkansas Board of Apportionment prior to May 1, 2019 using population data from the 2010 United States Census.
(2) Thereafter, Arkansas Senate and Arkansas House Districts shall be established in accordance with this Amendment by the Arkansas Board of Apportionment using the Current Census on or before February I following the release of said census.
(3) In each instance said board shall file its report with the Secretary of State, setting forth the basis of population adopted for representatives; whereupon, after 30 days from such filing date, the apportionment thus made shall become effective unless proceedings for revision be instituted in the Supreme Court within said period.

§ 6. Multi-Member District Elections
(A) Section 6 of Article 8 to the Arkansas Constitution of 1874 shall be replaced with the following
( 1) Each voter shall cast one vote for a candidate for the Arkansas Senate and one vote for a candidate for the Arkansas House.
(2) In each district, the elected representatives shall be the five candidates who received the five largest number of votes.
(3) In 2020, all members of the Arkansas House and Arkansas Senate shall be elected according to the apportionment recorded in 2019. The terms of Senators from Districts 2, 4, and 6 will be for two years.
(4) At the next general election of State officers ensuing after each apportionment thereafter:

(a) All members of the Arkansas House shall be elected according to the latest apportionment;
(b) All members of the Arkansas Senate whose term is up at the time of such election shall be elected according to the latest apportionment;
(c) All remaining members of the Arkansas Senate shall be elected in the general election two years hence according to the latest apportionment.

§ 7. Ballot Format
(A) Only a candidate's name shall appear on any ballot for public office within the state of Arkansas. This shall include one given name, an initial when applicable, and surname or compounded surname.
(B) No title nor reference to any group shall be permitted on any ballot for public office in the state of Arkansas.