Why did the Arkansas AG reject the Arkansas True Grass recreational marijuana ballot title in October 2017?
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This page answers the general question as of 2017. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
The Arkansas True Grass Ballot Question Committee submitted a popular name and ballot title for "The Arkansas Recreational Marijuana Amendment" to the AG for certification under Ark. Code Ann. § 7-9-107. The AG rejected the entire submission, not because of anything wrong with the marijuana policy in it, but because the underlying text was so internally inconsistent that no accurate ballot title could be drafted from it.
Two specific problems drove the rejection.
The first was a tangle of overlapping definitions. Section 3(c) defined "carry on" or "carrying on" as "to have possession of an item on one's body." Section 3(k) defined "personal effect" as "an item that a person has in his or her possession that he or she wears or carries." Section 4 then used the phrase "carrying on one's personal effect," combining the two terms. If you substitute the definitions back in, you get nonsense: "having possession of an item on one's body on one's item that one has in one's possession that one wears or has possession of on one's body." The AG also flagged a logical problem with the "personal effect" definition itself: a personal effect could either be an item that someone could wear or carry (like a jacket they own) or an item they're actually wearing or carrying right now. The text didn't pick one.
The second was a tangle of cultivation rules. Section 4(a) said an adult or business could "cultivate up to twenty-five (25) mature marijuana plants and up to twenty-five (25) non mature marijuana plants." Section 4(a)(2) said any "location where more than twelve (12) marijuana plants is being cultivated" had to be registered with the county sheriff. Section 4(a)(2)(B) said no more than four adults or four business entities could register at the same location. Section 4(a)(2)(C) said the number of cultivation locations registered per county "shall not be limited."
These provisions don't fit together cleanly. If 25 mature plants is the cap, are 26 plants illegal? Section 10 (penalties) didn't say so. What about a cultivator with 25 mature and 25 non-mature plants whose non-mature plant matures, putting them at 26 mature? The 12-plant registration trigger was unclear: per cultivator or per location, mature only or both? The "four adults or four business entities" rule could mean up to eight cultivators total, or just four. The "shall not be limited" rule about cultivation locations could conflict with the four-cultivator-per-location cap.
Because § 7-9-107 lets the AG substitute a corrected ballot title in some cases but does not authorize the AG to redraft the underlying measure, these textual ambiguities required outright rejection. The sponsors could redesign and resubmit. The True Grass committee did just that, with the resulting opinion reviewing the redesign at AG Op. 2017-110, and again at 2017-117 with the same family of measures.
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.
Background and statutory framework
Ark. Code Ann. § 7-9-107 gives the AG three options when reviewing a popular name and ballot title: certify, substitute and certify, or reject. Substitute-and-certify is for fixing problems with the ballot title language while leaving the underlying measure intact. It cannot be used to fix internal contradictions in the proposed measure itself.
The substantive standards come from Arkansas Supreme Court precedent:
Becker v. Riviere (Ark. 1980) and Arkansas Women's Political Caucus v. Riviere (Ark. 1984) require ballot titles to "honestly, intelligibly, and fairly set forth the purpose of the proposed amendment" so voters relying only on the title get a fair understanding.
Lange v. Martin (Ark. 2016) requires titles to "adequately inform" voters of the proposal's content. Significant omissions disqualify a title.
Wilson v. Martin (Ark. 2016) prohibits "technical" terms in ballot titles unless they are defined.
Bailey v. McCuen (Ark. 1994) requires that "essential facts giving the voter serious ground for reflection" must be disclosed in the title, and that the title remain "free of any misleading tendency whether by amplification, omission, or fallacy" without "partisan coloring." Bailey also notes that ballot titles must be brief and concise to comply with Ark. Code Ann. § 7-5-309's five-minute voting-booth limit.
Roberts v. Priest (Ark. 2000) is the foundational case for this kind of rejection: a measure cannot be approved if the text of the proposal itself contributes to "confusion and disconnect" between the popular name/ballot title and the proposed measure. "Internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." That is exactly the diagnosis the AG made for the True Grass submission.
Common questions
Why did the AG reject this submission?
Because the proposed amendment's text was internally inconsistent in two key areas: the carry/personal-effect definitions and the cultivation/registration rules. No ballot title can fairly summarize a measure that contradicts itself.
Was this a comment on whether recreational marijuana should be legal?
No. The AG explicitly said the rejection had nothing to do with the merits of the policy.
Could the AG just have fixed the ballot title?
No. The AG can substitute a corrected ballot title under § 7-9-107 only when the underlying measure is workable. When the measure itself has unresolved ambiguities, no clean ballot title is possible.
What was wrong with the carry/personal-effect definitions?
They were circular. "Carry on" was defined as having something on one's body. "Personal effect" was defined as something one possesses and wears or carries. When both were combined in section 4 ("carrying on one's personal effect"), the resulting phrase was redundant and incoherent.
What was wrong with the cultivation rules?
Multiple things. The 25-plant-each cap (mature and non-mature) didn't have a corresponding penalty for going over. The 12-plant registration trigger was ambiguous as to whether it was per location or per cultivator. The four-adult-or-four-business-entity rule could be read as four total or as eight (four of each). And the "no limit on cultivation locations" rule could conflict with the per-location caps.
Was this the same family of measures the AG also rejected at 2017-110 and 2017-117?
Yes. The True Grass committee resubmitted similar measures multiple times. Each iteration drew its own AG opinion analyzing the new defects.
Source
Original opinion text
Opinion No. 2017-103
October 6, 2017
Mary L. Berry, Officer
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Arkansas True Grass Ballot Question Committee
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
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 constitutional amendment.
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.
[Standards-of-review discussion citing Becker v. Riviere, Lange v. Martin, Wilson v. Martin, Bailey v. McCuen, Crochet v. Priest, Christian Civic Action Committee v. McCuen, Becker v. McCuen, and Roberts v. Priest preserved in the original opinion.]
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.
- Your proposed amendment states in section 3(c) that "'carry on' or 'carrying on' means to have possession of an item on one's body." Likewise, section 3(k) states that "'personal effect' means an item that a person has in his or her possession that he or she wears or carries." And sections 4(c) and 4(c)(1) refer to "carrying on one's personal effect."
It is unclear how the terms "carry on," "carrying on," and "personal effect," as used in your proposed amendment, are meant to interact. First, "carry/carrying on" and "personal effect" are defined more or less interchangeably, which makes them ambiguous when they are used together. If the definitions for these terms are substituted for the terms as they appear in section 4 ("carrying on one's personal effect"), the result would be: "having possession of an item on one's body on one's item that one has in one's possession that one wears or has possession of on one's body." This phrase is nonsensical and redundant.
Likewise, there is a logical inconsistency in the definition of "personal effect," which is given as "an item that a person has in his or her possession that he or she wears or carries." A person could reasonably possess an item that he or she wears or carries, such as a jacket. But at any given time, the person may not be wearing or carrying the item. Thus, it is unclear if a "personal effect" is (1) an item that can be worn or carried that a person possesses, or (2) an item that is worn or carried that a person possesses.
Because the activities that your proposed amendment purports to legalize are of great interest to Arkansas voters, these ambiguities must be clarified before I can certify an accurate ballot title.
- Section 4(a) of your proposed amendment states that it is not an offense for an adult or business to "cultivate up to twenty-five (25) mature marijuana plants and up to twenty-five (25) non mature marijuana plants." Section 4(a)(2) states that the "location where more than twelve (12) marijuana plants is being cultivated" must be recorded with the county sheriff in the county where the plants are grown. Section 4(a)(2)(B) states that "not more than four adults or four business entities may be registered at the same location." And section 4(a)(2)(C) states that the "number of cultivation locations registered per county shall not be limited."
If your proposed amendment intends to legalize the growth of "up to twenty-five" mature marijuana plants, it is reasonable to conclude that growing 26 or more mature plants would be illegal. This cut-off would also apply to non-mature plants. But section 10 of your proposed amendment ("Penalties") does not mention growing 26 or more plants as a prohibited activity. And if growing 26 or more plants is in fact an offense under your proposed amendment, it is unclear how section 8 ("Expungement of Convictions for Marijuana Offenses") would apply to convictions for that offense. It is likewise unclear what would be required of a cultivator who has 25 mature plants and 25 non-mature plants. Once any of the non-mature plants became a mature plant, this cultivator would be out of compliance with section 4(a) (under one interpretation of the text).
It is unclear if the requirement to register a location where "more than twelve (12) marijuana plants [are] being cultivated" applies to cultivators of mature plants, of non-mature plants, or of either. And it is unclear if the 12-plant limit applies per location, or per cultivator, for example, in the instance of a location where one cultivator grows 11 plants and a second cultivator grows one plant.
Moreover, the maximum number of persons and businesses who can register is ambiguous. On the one hand, section 4(a)(2)(B) could be interpreted to mean that up to eight cultivators (four persons and four businesses) can be registered at one location. On the other hand, section 4(a)(2)(B) could be interpreted to mean that only four cultivators (four persons or four businesses) can be registered at one location.
Finally, there is an inconsistency between sections 4(a)(2)(B) and 4(a)(2)(C), which states that the "number of cultivation locations registered per county shall not be limited." It is conceivable that the maximum number of people and businesses (whatever that number is) could register in all available cultivation locations. But an additional cultivator might wish to register under 4(a)(2)(C). It is unclear, in this situation, how the requirement that locations "not be limited" would apply. These ambiguities must be clarified before I can certify a ballot title that accurately summarizes the cultivation activities discussed in section 4(a) of your proposed amendment.
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
Enclosure
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