Why did the Arkansas AG reject the Arkansas True Grass recreational marijuana ballot title in 2017?

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. This was a follow-up to an earlier submission addressed in AG Opinion 2017-110.

The AG rejected the entire submission as too defective to review. Two specific shortcomings drove the rejection.

First, the proposed amendment included a Section 10 titled "Unlawful activities pursuant to this Amendment." That section had thirteen subsections describing activities that would be unlawful under the new amendment. None of the thirteen categories appeared anywhere in the proposed ballot title. That was a serious omission, made worse by the ballot title's affirmative statement that recreational marijuana activities "may not be prohibited under State law." Voters reading only the ballot title would have a fundamentally incomplete picture of what they were voting on.

Second, the text of the proposed measure used terms it never defined. The phrase "growing recreational marijuana plants" appeared in Section 10 but was never defined anywhere in the amendment. Yet the ballot title told voters that "the location with more than 12 growing marijuana plants [must be] registered with the county sheriffs office." Without a definition, what counted as "growing" was unclear, which made the ballot title incapable of conveying "an intelligible idea of the scope and import of the proposal" as required by Bailey v. McCuen.

The AG made a procedural point about the limits of the office's role. Under § 7-9-107, the AG can certify, substitute and certify, or reject. The AG can clean up a ballot title that has minor problems. But the office cannot rewrite the underlying measure to make a clean ballot title possible. Section 7-9-107 puts the drafting burden on the sponsor.

The AG was careful to note that this rejection was procedural, not a comment on the merits of recreational marijuana policy. The AG's role is to ensure ballot titles fairly inform voters, not to weigh whether a proposal is a good idea.

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 for a proposed initiated act or amendment: certify the submission, substitute and certify a corrected version, or reject the submission entirely if the issue is "presented in such manner that the ballot title would be misleading."

The Arkansas Supreme Court reads the statute against several substantive standards:

Becker v. Riviere requires the ballot title to "honestly, intelligibly, and fairly set forth the purpose of the proposed amendment" so that voters relying on the title alone have a fair understanding.

Bailey v. McCuen says a ballot title must be "complete enough to convey an intelligible idea of the scope and import of the proposal."

Lange v. Martin holds that ballot titles are insufficient unless they "adequately inform" voters of the amendment's content; an "omission" that prevents accurate reflection of what's in the amendment is "significant" and disqualifies the title.

Roberts v. Priest adds that internal inconsistencies in the proposal itself can prevent a workable ballot title from being drafted at all.

The AG's office cannot, under § 7-9-107, redraft the underlying measure to fix a defective title. That has to come from the sponsor.

Common questions

Why did the AG reject the Arkansas True Grass marijuana ballot title in November 2017?
Two reasons: (1) the proposed amendment's Section 10 listed 13 categories of unlawful activity that the ballot title did not summarize at all, and (2) the amendment used the phrase "growing recreational marijuana plants" without defining "growing," even though that phrase was central to a registration requirement in the ballot title.

Was this a comment on whether recreational marijuana should be legal in Arkansas?
No. The AG explicitly said the rejection had no relation to the merits of the underlying proposal. The role under § 7-9-107 is procedural review of how the proposal is presented to voters.

Could the AG have just rewritten the ballot title to fix it?
No. Section 7-9-107 lets the AG substitute a corrected ballot title in some circumstances, but not when the underlying measure itself creates the problem (undefined terms, missing sections in the summary). That's a sponsor problem, not an AG problem.

What were the 13 unlawful activities in Section 10?
They covered offenses including: minors cultivating, possessing, or selling; providing marijuana to minors; cultivation locations exceeding 12 plants without sheriff registration; growing in public view; growing or selling on property where the owner forbids it; using flammable solvents in residential areas; selling within 1,500 feet of a school, daycare, or church; selling to out-of-state ID holders beyond limits; selling improperly designed or labeled products; transporting in public view; consuming where alcohol is forbidden; and driving under the influence.

What standard did the ballot title have to meet?
Per Bailey v. McCuen, it had to "convey an intelligible idea of the scope and import of the proposal." Per Lange v. Martin, omissions of significant content disqualify a ballot title. Per Roberts v. Priest, internal inconsistencies between the title and the proposal can also be fatal.

Source

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

Original opinion text

Opinion No. 2017-117
November 8, 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 responding 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 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 a measure when making a decision to certify or reject.

Section 7-9-107 authorizes my office to 1) certify the popular name and ballot title of a proposed measure, 2) substitute and certify the popular name and ballot title, or 3) reject the entire submission if the "nature of the issue [] is presented in such manner that the ballot title would be misleading" to voters. The purpose of this review is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment. In this way, voters (by reference to the ballot title alone) will have a fair understanding of the issues presented.

But modifying the proposal's text and then accurately summarizing that text in a ballot title is the sponsor's responsibility prior to any submission to this office. While I am authorized to craft and certify a ballot title that is more suitable under these criteria, section 7-9-107 does not contemplate that I substitute a ballot title for one that is wholly deficient as submitted, or that I re-draft the proposed measure itself so that a suitable ballot title would then be possible. It also follows from my duty to reject misleading submissions that any ballot title submitted for review should represent the sponsor's impartial summary of her proposed amendment. In sum, the popular name and ballot title for all proposed amendments and initiated acts submitted under section 7-9-107 "should be complete enough to convey an intelligible idea of the scope and import of the proposal."

REQUEST

You have requested certification of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name
The Arkansas Recreational Marijuana Amendment

Ballot Title
An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of marijuana and products produced therefrom for recreational purposes by adults, 18 years of age or older may not be prohibited under State law; recognizing that such activities remain unlawful under federal law; providing for the expungement of marijuana related convictions(s) from all criminal records in the State; providing for the release of persons from incarceration, probation, or parole whose current and only convictions were for violating State law in regards to marijuana related offenses; defining recreational marijuana containing more than 0.3% THC; providing that a business entity or an adult may cultivate, produce, distribute, sell, purchase, transport, and use recreational marijuana and products produced therefrom; providing that a person 18 years of age or older, or business entity may cultivate marijuana plants in a location not subject to public view without optical aid; providing that the location with more than 12 growing marijuana plants is registered with the county sheriffs office; permitting the transport of recreational marijuana out of public view; permitting the consumption of recreational marijuana by adults wheresoever the consumption of alcohol is permitted; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% recreational marijuana excise tax and a local sales tax of 2%; permitting any adult or business entity that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana and products produced therefrom to any adult person 18 years of age or older with proof of age; providing that the recreational marijuana that is sold in the form of edibles or drinkables (a) shall not be designed to appeal to children; (b) shall not exceed 10 milligrams of THC per serving, and (c) labeling or packaging must provide product information; 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 affect the ability of employers to have policies restricting the use of recreational marijuana by employees, (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 18 years of age, (d) does not permit anyone under 18 years of age to cultivate, produce, sell, purchase, transport, or use recreational marijuana and; (e) is not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or, any license [sic] entity pursuant to the Arkansas Medical Marijuana Amendment of 2016.

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. As you are aware, my office attempts in the usual course to identify problems associated with the text of a proposed measure that will prevent certification of a satisfactory ballot title. In this case, however, there are fundamental, threshold shortcomings in your submission that preclude any detailed review under section 7-9-107(c).

First and foremost, the text of your proposed measure contains entire sections that are unrepresented in the ballot title. Section 10 ("Unlawful activities pursuant to this Amendment") did not appear at all in your previous submission (addressed in Op. Att'y Gen. 2017-110). This section has no fewer than 13 subsections, all of which purport to describe activities related to recreational marijuana that will be "unlawful" (despite language in the ballot title stating that marijuana-related activities "may not be prohibited under state law"). Yet the ballot title you submitted makes no attempt to enumerate or summarize the 13 ways in which marijuana-related activities will be (or will remain) unlawful under your proposed amendment.

Additionally, the text itself of your proposed measure does not in any way define terms like "growing recreational marijuana plants," which appears in Section 10. What it means for a recreational marijuana plant to be "growing" is completely unclear, yet the proposed ballot title (required by statute to "convey an intelligible idea of the scope and import of the proposal") states that the "location with more than 12 growing marijuana plants [must be] registered with the county sheriffs office."

For at least these reasons, your submission falls short of the minimum criteria under section 7-9-107. Sponsors must undertake themselves to craft (with at least some degree of care) submissions meeting the standards for certification that section 7-9-107 obligates my office to verify. In other words, sponsors must make the necessary efforts to ensure that their proposed measures, popular names, and ballot titles have been thoroughly vetted for compliance with the high standards established by the Court prior to their submission to my office. Because your submission does not meet these baseline requirements, I cannot undertake the review contemplated by section 7-9-107.

CONCLUSION

Your submission is defective to the point that I cannot begin to analyze whether the ballot title, or the nature of the issue, is presented in such a way that the ballot title would be misleading. The deficiencies noted above are not necessarily all of the issues preventing certification of a popular name and ballot title for your proposed amendment, but they are sufficiently serious that I am unable to further review your submission pursuant to Ark. Code Ann. § 7-9-107(c).

The Arkansas Constitution does not charge my office with any role in drafting initiated acts or amendments. Nor can I advise or advocate for a private, individual sponsor. My duty in reviewing submissions under section 7-9-107 is not to a given sponsor, but to the electorate as a whole. Under the circumstances, I must reject your entire ballot title, popular name, and proposed measure.

Sincerely,

LESLIE RUTLEDGE
Attorney General
Enclosure

[Full proposed measure text was attached as an enclosure to the original opinion. The proposed Arkansas Recreational Marijuana Amendment included sections defining adult, business entity, cultivation location, cultivator, driving under the influence (using a 14 ng/mL Δ9THC blood threshold), marijuana, marijuana paraphernalia, marijuana related offenses, minor, products produced from recreational marijuana, recreational purposes, remuneration, and use; lawful cultivation and sale provisions with a 1,500-foot setback from schools, churches, and daycares; product design and labeling requirements (including a 10 mg THC per-serving limit on edibles); marijuana paraphernalia provisions; carve-outs preserving employer policies, DUI laws, restrictions on minors, other controlled substance laws, and medical marijuana rights; expungement and release provisions for prior marijuana-only convictions; a tax structure adding a 5% excise tax and 2% local sales tax atop the state sales and use tax; thirteen subsections of unlawful activities (the omission flagged in this opinion); a tiered penalty schedule; and a severability clause.]