Why did the Arkansas Attorney General reject the 2018 Independent Citizens Redistricting Commission ballot title?

Plain-English summary

Sponsor David A. Couch submitted a proposed constitutional amendment to create an Independent Citizens' Redistricting Commission for Arkansas's congressional and state legislative districts. The amendment would have replaced Article 8 of the Arkansas Constitution (which gave the Board of Apportionment, comprising the Governor, Secretary of State, and Attorney General, authority over legislative districts) and removed congressional redistricting from the General Assembly. The AG rejected the popular name and ballot title.

The rejection rested on five substantive defects:

1. Term length undefined. The proposal repeatedly referenced a commissioner's "term" without saying how long it lasted. Combined with a five-year prior-service ban and a three-year post-service ban, voters could face a hidden 18-year window of disqualification.

2. "Reasonably compact" potentially limits districts to four or six sides. The proposal defined reasonably compact as "square, rectangular, or hexagonal in shape, and not irregularly shaped." Read literally, this could invalidate any district with a different number of sides.

3. Population-deviation grammar is ambiguous. The "ideal population... determined by dividing the number of districts to be established into the population of the state" reference left unclear whether the dividing-clause modifies the actual districts or the ideal district.

4. Outside-counsel authority not flagged. Section 22 of the proposal would have let the commission hire outside counsel without the AG's involvement and without the legislative-council review currently required, and would have implicitly forced the legislature to appropriate funds for that counsel: raising separation-of-powers concerns the ballot title did not disclose.

5. The word "independent" carries partisan coloring. Voters typically read "independent" as free from political control, but commissioners would still be appointed by elected officials. The label suggests the current process is dependent and the new one is not, contrary to Bailey v. McCuen and Christian Civic Action Committee v. McCuen.

The AG also flagged the 971-word ballot title as approaching the Newton v. Hall limit of voter comprehension within a five-minute polling-booth visit.

Currency note

This opinion was issued in 2018. 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.

What the AG flagged in detail

Hidden 18-year service ban from undefined term length. The proposal said commissioners could not serve as elected officials, appointed officials, or paid lobbyists for five years before appointment and three years after their term ended. Section 25 said duties "expire upon the appointment of the first member of the next redistricting commission," which (since redistricting follows the decennial census) implied a ten-year term. Combined with the five-year prior ban and three-year post ban, that worked out to an 18-year disqualification window. The AG said voters needed that disclosed.

"Reasonably compact" geometry. Section 14(E) said reasonably compact districts are "those which are square, rectangular, or hexagonal in shape." That language could be read to invalidate districts of any other shape, even ones bounded by natural geography. The AG said voters needed to know that.

Population-deviation parsing. The text was "districts shall not vary by more than one percent of the ideal population for such districts, determined by dividing the number of districts to be established into the population of the State." The "determined by" clause could attach to either "districts" or "ideal population." That mattered because each reading produced different math.

Hiring outside counsel without the usual checks. Under Ark. Code Ann. § 25-16-702, the AG is the attorney for state agencies, and outside counsel requires the AG's approval, the Governor's approval, and Legislative Council review. Section 22 of the proposal would have given the commission sole authority to choose counsel. Section 20 required the legislature to appropriate "adequate redistricting expenses" but did not separately address outside-counsel costs, which the AG read as an implicit forcing of legislative appropriation. That collides with Ark. Const. art. 5, § 29, which gives the legislature alone the appropriation power. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979), holds that branches of state government cannot arrogate each other's powers. The ballot title did not flag any of this.

"Independent" as partisan coloring. The AG noted that Arkansas does have an existing apportionment process under Article 8, conducted by elected officials. Calling the new commission "independent" implies the current one is not, which the AG considered "tinged with partisan coloring" under Bailey v. McCuen and Christian Civic Action Committee v. McCuen. The AG cited his own Op. Att'y Gen. 2012-028 noting that words like "transparency" and "reform" similarly lend partisan coloring.

Length. The ballot title was 971 words. Citing Dust v. Riviere and Newton v. Hall, the AG observed that even though Amendment 7 places no hard length cap, the Court has rejected ballot titles around 706 words as "complex, detailed, lengthy, misleading and confusing."

Common questions

What was Arkansas's redistricting process at the time?
State legislative districts: the Board of Apportionment (Governor, Secretary of State, Attorney General) under Article 8. Congressional districts: the General Assembly under Ark. Code Ann. § 7-2-101 to -105.

Did this proposal eventually pass?
Sponsor Couch and similar groups continued working on redistricting reform in subsequent cycles. This 2018 submission was rejected at the AG-certification stage, before petition circulation.

Why is "independent" treated as partisan coloring?
Arkansas Supreme Court doctrine treats words that "give the voter only the impression that the proponents... wish to convey" as creating a "fatally misleading tendency." Words with built-in positive valence ("independent," "transparency," "reform") can prejudge the merits.

Could the AG just rewrite the ballot title?
Section 7-9-107(b) lets the AG "substitute and certify" a corrected title, but only when the proposal text is itself clear enough to summarize. Here, the AG said the ambiguities in the proposal text (term length, compact-district definition, population-variance parsing) made substitution impossible.

Background and statutory framework

Ark. Code Ann. § 7-9-107 implements Amendment 7 / Ark. Const. art. 5, § 1. The AG's role is gatekeeping: certify, substitute and certify, or reject. The Arkansas Supreme Court reviews ballot-title sufficiency challenges in original-jurisdiction proceedings under Article 5, Section 1.

The opinion repeatedly cited the Court's "fair-understanding" test from Becker v. Riviere, the "adequately inform" / "reasoned decision in the voting booth" test from Lange v. Martin, the materiality test from Bailey v. McCuen, and the partisan-coloring doctrine from Crochet v. Priest and Christian Civic Action Committee v. McCuen.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017)
• Ark. Code Ann. § 25-16-702 (AG as attorney for state agencies)
• Ark. Code Ann. § 7-2-101 to -105 (congressional redistricting authority)
• Ark. Const., art. 5, § 1 (Amendment 7)
• Ark. Const., art. 4, § 2 (separation of powers)
• Ark. Const., art. 5, § 29 (legislative appropriation power)
• Ark. Const., art. 8 (Board of Apportionment)
• Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
• Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938)
• Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982)

Source

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

Original opinion text

Opinion No. 2018-019
March 8, 2018
David A. Couch, Esq.
David A. Couch, PLLC
1501 North University Avenue, Suite 228
Little Rock, AR 72207

Dear Mr. Couch:

I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2017), of the popular name and ballot title for a proposed initiated 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 a decision to certify or reject.

REQUEST

Popular Name

The Independent Citizens' Redistricting Commission Amendment of 2018

Ballot Title

[The full 971-word submitted ballot title and the complete proposed amendment text follow in the original opinion. See the linked source for the verbatim text.]

GUIDELINES

The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency. The popular name is primarily a useful legislative device, and it need not contain detailed information or include exceptions that might be required of a ballot title. However, it must not mislead or give partisan coloring to the merit of the proposal.

The ballot title must include an impartial summary of the proposed amendment that gives the voter a fair understanding of the issues presented. A ballot title is legally insufficient if it does not "adequately inform" the voters of the contents of a proposed amendment so that they can make a "reasoned decision in the voting booth." And the title must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring."

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. Likewise, 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. It must be honest and impartial, however, 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 ballot title cannot be approved if the text of the proposed measure itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the 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.

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal submitted. Your submission has shortcomings that require me to reject the ballot title and popular name as drafted.

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).

DISCUSSION

I highlight below the more concerning aspects of the popular name, ballot title, and text of your proposal.

1. Your proposal contains numerous references to a member of your proposed redistricting commission's "term" or "term of office." However, your proposed measure is unclear as to the definition or duration of a commissioner's term of office. This will be important to the voters, in my opinion, and must be made clear, especially as your measure 1) prohibits people from serving on the commission if they have worked in government or served in a political capacity for five years prior to their appointment to the commission and 2) prohibits commissioners from serving as a lobbyist or an elected or appointed government official during their terms and for three years after their terms end. In my opinion, voters will want to quickly understand the length of the terms both for its own sake, and to understand the potential length for which they are barring various types of employment or other public service.

I note that in Section 25 of your proposed amendment, you state that each commissioner's "duties . . . expire upon the appointment of the first member of the next redistricting commission . . . ." Since apportionment and redistricting occur only after each federal decennial (ten-year) census, it appears that a commissioner's term of office is ten years, but this is not clear, nor is it stated plainly in your ballot title. This would need to be set out in a ballot title in a way that voters would understand its implications: that commissioners or potential commissioners would have an at most 18-year prohibition on government service or paid lobbying or political activity.

2. In Section 14(E) of your measure, you state that "[d]istricts shall be reasonably compact in form[,]" which you generally define as "those which [sic] are square, rectangular, or hexagonal in shape, and not irregularly shaped . . . ." This language suggests that districts, in general, can only have four or six sides and angles, implying that a district that has more or fewer sides and angles could be deemed unconstitutional as being irregularly shaped. If this is your intention, this needs to be clearly stated in your measure and in a ballot title.

3. Your proposed measure and ballot title mentions actual districts having a population nearly equal to the "ideal population . . . , determined by dividing the number of districts to be established into the population of the state . . . ." Under the phrasing you have used, it is unclear whether the "determined by" clause refers to the actual districts being established or the so-called ideal district. This will need to be clarified in your proposed measure and ballot title for voter understanding.

4. Section 22 of your measure gives the commission the sole authority, in case of any legal action, to choose whether to be represented by the Attorney General or by outside counsel selected and hired by the commission. This would represent a substantive change in Arkansas law, specifically section 25-16-702 of the Arkansas Code. That section states that the Attorney General shall be the attorney of all state agencies, officials, institutions, and departments. Additionally, state law gives the Attorney General the authority to decide if outside counsel is necessary and to hire such counsel, with the approval of the Governor and review by the Legislative Council. Your proposal would not subject the commission to those same checks and balances that the Attorney General is subject to. This substantial change in the law would need to be adequately explained to voters in a ballot title.

Moreover, while Section 20 of your proposal requires the General Assembly to make appropriations to the commission for "adequate redistricting expenses" (emphasis added), no mention is made in Section 22 of how any outside counsel hired on the commission's sole authority is to be paid. By giving the commission the sole authority to decide to hire and in fact hire outside legal services, your Section 22 appears, by implication, to enable an entity of the executive branch, which this commission certainly would be, to force the legislative branch to act in appropriating money. This would amount to a breach of the long-held and respected separation-of-powers doctrine, wherein the legislature alone has the authority to choose to appropriate funds or not. Any change in this area would need to be unmistakably stated in a ballot title such that voters have a clear choice of staying with current law or going with something very different.

5. Regarding the popular name and ballot title, it is entirely unclear what "independent" means in this context. Independent of what? Independent of whom? Moreover, the use of that word may suggest to voters that the current process is not independent. In my judgment, most people define "independent" as being free from another's control or authority or, in the political context, as not being associated with direct control by a particular political party. Nothing in current law suggests that the apportionment and redistricting processes are dependent upon anything other than the judgment of the public officials involved who were elected by the voters. And because members of your proposed commission would be appointed by public officials, or appointed by those appointed by public officials, I am unsure voters would believe they meet a common-sense definition of "independent." The use of the word "independent" also has an obvious positive ring to it that may well lend partisan coloring to the merits of your proposal, contrary to the legal standards of the Arkansas Supreme Court.

As a final note, and while not reason alone for me to reject your popular name and ballot title, I must mention that your ballot title appears overly long and highly detailed. Your ballot title contains 971 words and is quite comprehensive in attempting to summarize your proposed measure. Prudence dictates that you consider, based on the Court's precedents, whether a ballot title like the one you have submitted would meet the Court's standards for intelligent consideration by the voters in the allotted time.

The case of Page v. McCuen 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 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 went on to note: "Although Amendment 7 to the Arkansas Constitution does not specify a limit on the length of a proposal, the proposed measure must be of a size capable of having a ballot title which will not only convey the scope and import of the measure, but also impart a description of the proposal so voters can cast their votes intelligently and with a fair understanding on the issue." The Court concluded that the proposed measure in that case was "so expansive that it precludes the writing of an acceptable ballot title."

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, if you so choose, the proposed measure, popular name, and ballot title.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure