Why did the Arkansas Attorney General reject the 2018 four-casino constitutional amendment ballot title?

Plain-English summary

This is one of several casino-amendment ballot-title rejections the Arkansas Attorney General issued in early 2018. Sponsor Alex T. Gray submitted a proposed constitutional amendment that would have authorized four casinos, one each in Crittenden, Garland, Pope, and Jefferson Counties, with detailed taxation and revenue-distribution rules. The AG rejected both the popular name and the 1,190-word ballot title.

The popular name was rejected for being far too long to serve its function as a short voter-friendly label. The ballot title was rejected for several substantive defects: it left the definition of "casino gaming" ambiguous on whether sports betting (then federally prohibited under PASPA) was included; it failed to disclose that the Crittenden and Garland County casinos would effectively be awarded to known franchise holders without an application process, and that those holders' identities would need to be disclosed; it failed to clarify what counted as the "Franchise holder's location as of December 31, 2017"; and it omitted requirements that applicants (but not franchise holders) would have to satisfy, leaving voters with a misleading impression of how the licenses would actually be granted.

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.

In particular, Arkansas voters subsequently approved a different casino amendment (Issue 4) in November 2018, which became Amendment 100 of the Arkansas Constitution and authorized four casinos by a different mechanism. The federal Professional and Amateur Sports Protection Act (PASPA) referenced in this opinion was struck down by the U.S. Supreme Court in Murphy v. NCAA, 138 S. Ct. 1461 (2018), shortly after this opinion issued.

What the AG flagged

Popular name length. The submitted popular name ran the full length of the proposed amendment's title, which the AG said could not function as a "useful legislative device" or a "label" voters could use to discuss the measure before the election. The Court's standard from Gaines v. McCuen requires a popular name to be "easy for voters to discuss the proposal prior to the election."

Ambiguity in "casino gaming" definition. The proposal defined casino gaming to include "wagers on sporting or other events if and when no longer prohibited by federal law." The AG observed that the federal Professional and Amateur Sports Protection Act (28 U.S.C. §§ 3701-3704) at the time prohibited Arkansas from authorizing sports gambling, citing Lange v. Martin. So a casino licensee could not accept sports wagers unless and until federal law changed. But the phrase "other events" was undefined and could swallow large categories of betting beyond sports. The ballot title needed to clarify what "other events" meant.

Hidden guarantee to franchise holders. Sections 4(n) and 4(u) of the proposal said that the Office of Casino Gaming "shall award" casino licenses to a franchise holder in Crittenden County and a franchise holder in Garland County, and that franchise holders "are not applicants and are not required to submit applications." Combined with the one-license-per-county cap in 4(m), this meant the measure was effectively guaranteeing the right to operate a casino to a known franchise holder in each of those counties. The AG cited Page v. McCuen (and a string of related cases) to say that when a casino amendment effectively designates a specific site or operator, the ballot title must disclose that fact, because "voters no doubt would pause for reflection if they were aware 'the' designated site had already been established."

"Franchise holder's location as of December 31, 2017." Section 4(n) tied the casino's location to "the Franchise holder's location as of December 31, 2017," but the proposal never explained whether that meant the corporate headquarters, a specific racing facility, or something else. The AG said this matters to voters and must be disclosed in the ballot title.

Asymmetric requirements omitted. The ballot title described various requirements casino license applicants had to meet (operational experience, $100M minimum investment, county-judge or quorum-court letter of support, mayoral letter), but did not flag that franchise holders were exempt from those requirements. That selective summary risked misleading voters about how the licensing scheme actually worked.

Length. As a parting observation, the AG noted that the 1,190-word ballot title likely exceeded what voters could absorb within the five-minute polling-booth limit set by Ark. Code Ann. § 7-5-309. Citing Bailey v. McCuen and Newton v. Hall, the AG warned that overly long ballot titles can be rejected as "complex, detailed, lengthy, misleading and confusing."

Common questions

What does it mean when the AG rejects a ballot title?
The sponsor cannot proceed to circulate petitions for the amendment with that title. The sponsor can revise the proposal and ballot title and resubmit. The AG cannot rewrite the proposal itself. Section 7-9-107(c) gives the AG three options: certify, substitute and certify a corrected title, or reject the entire submission.

Why does the AG examine the proposal's text and not just the ballot title?
Roberts v. Priest held that an ambiguous proposal text contributes to confusion in the ballot title and is independent grounds for rejection. The AG cannot certify a clear ballot title that summarizes an ambiguous measure.

What was the difference between this 2018 casino proposal and Amendment 100?
This 2018 proposal from sponsor Gray was rejected. A different sponsor's proposal eventually made the November 2018 ballot as Issue 4 and passed, becoming Amendment 100. The two proposals had different revenue-distribution percentages and different licensing mechanisms.

What if a sponsor disagrees with the AG's rejection?
The sponsor can revise and resubmit, or seek judicial review. The Arkansas Supreme Court has original jurisdiction over ballot-title sufficiency challenges under Amendment 7 / Article 5, Section 1 of the Arkansas Constitution.

Background and statutory framework

Ark. Code Ann. § 7-9-107 implements Article 5, Section 1 of the Arkansas Constitution (Amendment 7), which authorizes citizen-initiated constitutional amendments. The AG's role is limited to reviewing whether the popular name and ballot title accurately summarize the proposal in a way that gives voters a fair understanding. The AG does not pass on the merits of the proposal.

The Arkansas Supreme Court has built up an extensive body of case law on ballot-title sufficiency. Key principles applied here:

• A ballot title must be "free of any misleading tendency whether by amplification, omission, or fallacy" and must not be "tinged with partisan coloring" (Bailey v. McCuen).
• Material facts that would give a voter "serious ground for reflection" must be disclosed (Bailey v. McCuen).
• A ballot title must be brief enough for the average voter to consider within the five-minute polling-booth limit (Dust v. Riviere, Newton v. Hall).
• Ambiguities in the underlying proposal independently doom the ballot title (Roberts v. Priest).

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017) (AG ballot-title certification authority)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth time limit)
• 28 U.S.C. §§ 3701-3704 (PASPA, federal sports-gambling prohibition then in effect)
• Ark. Const., art. 5, § 1 (Amendment 7, citizen-initiated amendments)
• Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994) (designated-site disclosure)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154 (PASPA preempts state sports-gambling authorization)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (materiality standard)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (proposal-text ambiguity)
• Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982) (length as factor)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2018-021
March 12, 2018
Alex T. Gray, Attorney at Law
Steel, Wright, Gray & Hutchinson, PLLC
400 West Capitol Avenue, Suite 2910
Little Rock, AR 72201

Dear Mr. Gray:

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 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 a decision to certify or reject.

Section 7-9-107 of the Arkansas Code 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, if practicable, or 3) reject the entire submission if "the ballot title, or the nature of the issue, is presented in such manner that the ballot title would be misleading" to voters. The purpose of my review under section 7-9-107 is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act. In this way, voters will have a fair understanding of the issues presented by reference to the ballot title alone.

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 contrary to law," this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. 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.

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 Authorize Four Casinos, One Each in Crittenden, Garland, Pope, and Jefferson Counties; to Regulate Such Casinos Under Statutes to be Passed by the General Assembly and Rules Created and Administered by the Office of Casino Gaming or the Arkansas Racing Commission, as the case may be; and to Tax Such Casinos with the Proceeds of Such Taxes to be Distributed to the State Highway and Transportation Department Fund, Purse Support for Live Horse and Greyhound Racing, the Arkansas Racing Commission, the Office of Casino Gaming, and the City and or County in Which the Casino is Located

Ballot Title

[The submitted 1,190-word ballot title and the full proposed amendment text follow in the original opinion. See the linked source for the verbatim ballot title and amendment text.]

GUIDELINES

Popular Name

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

Ballot Title

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. According to the Court, a ballot title will not be legally sufficient unless it "adequately inform[s]" the voters of the contents of a proposed amendment or act so that they can make a "reasoned decision in the voting booth." 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.

Additionally, 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. The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." The ballot title must be honest and impartial, 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 guidelines established by the Court, that a number of additions or changes to your popular name and 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 some ambiguities in the text of the measure itself. And thus I cannot determine precisely what changes to the popular name and 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 popular name is much too long, in my opinion, to be considered a "useful legislative device." The popular name must be a short, descriptive reference for your proposed measure. "The popular name is designed to make it easy for voters to discuss the proposal prior to the election, by giving them a label to identify it." Your submission fails to meet this standard. 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.

2. The definition of "casino gaming" under subsection 2(e) of your proposal includes "wagers on sporting or other events if and when not prohibited by federal law." As the Court noted in Lange v. Martin, the federal Professional and Amateur Sports Protection Act (28 U.S.C. §§ 3701-04) "prohibits Arkansas, and other states, from authorizing sports gambling." Under your proposal, therefore, a casino licensee cannot accept wagers on sporting events unless and until this federal law changes. However, your measure's reference to "other events" is less clear. The term "events," in this context, is ambiguous. Read literally, "events . . . not prohibited by federal law" could considerably expand the "casino gaming" definition. This must be clarified for proper inclusion in the ballot title so that voters will have a clear understanding of the "casino gaming" definition's scope.

3. Under subsection 4(n) of your proposal, a "Franchise holder located in Crittenden County" and a "Franchise holder located in Garland County" will each be awarded a casino license "for a casino to be located at or adjacent to the Franchise holder's location [in the respective county] as of December 31, 2017 . . . ." "Franchise holder" is defined by subsection 2(i) as any entity "holding a franchise to conduct horse racing . . . or greyhound racing . . . as of December 31, 2017." Under subsection 4(u), these Franchise holders "are not applicants and are not required to submit applications for casino licenses in order to be issued a casino license."

It thus appears that the only entities that will qualify for casino licenses in Crittenden and Garland Counties under your proposed amendment are Franchise holders with locations in these counties "as of December 31, 2017." These qualifying entities will seemingly be guaranteed the right to operate a casino. What is left unclear, however, is whether there could be more than one qualifying Franchise holder in each county. We know that in accordance with subsection 4(m), there can be "no more than one casino license per county." We also know that Franchise holders don't apply for a license. This information, taken together, would seem to indicate that there is one, known qualifying Franchise holder in each of the two counties. However, neither the measure nor the proposed ballot title states as much. If it is true that the measure, if approved, guarantees a known Franchise holder the right to establish and operate a casino, then I believe the Court would require that the identity of this known Franchise holder be disclosed in the ballot title, and possibly in the popular name.

4. A related ambiguity concerning subsection 4(n), discussed above, involves the casino's location. The subsection ties the location to "the Franchise holder's location as of December 31, 2017." This obviously assumes there is one such "location." But without more information, there is no way to tell what this means or what is relevant to determining "the Franchise holder's location" for this purpose. Whether, for instance, it refers to a corporate entity's principal business location, or perhaps the location of a specific facility. Compare this with your subsection 4(j)(3), which requires that the "physical address of the casino" be included in a casino license application. The location of a Franchise holder's casino will undoubtedly give a voter serious ground for reflection. It must therefore be properly disclosed in the ballot title to comply with the Court's guidelines.

5. Your proposed ballot title accurately states that the newly-created "Office of Casino Gaming" shall award four casino licenses in the noted locations; and it details some of the requirements that are applicable to casino license applicants. But the ballot title does not mention the fact that Franchise holders do not apply for their licenses, and are not subject to these requirements. And notably absent from the ballot title are the various other requirements that must be met by casino applicants as contained in subsections 4(j), (k), and (t) of your proposal. Consequently, the ballot title is likely to mislead a reasonable voter in this regard, and may thwart a fair understanding of the issues. The Court has observed that most voters will look to the ballot title to derive information about the proposed measure.

As a final note, and while not reason alone for me to reject your popular name and ballot title, I must mention that while your ballot title (as noted above) appears under-inclusive in certain respects, it also appears overly long and may be unnecessarily detailed in other respects. Your ballot title contains 1,190 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.

CONCLUSION

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they (together with the other stated problems) are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a popular name or 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 popular name and ballot title for the foregoing reasons and instruct you to redesign the proposed measure, popular name, and ballot title.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure