Why did the Arkansas AG reject the proposed Citizens' Redistricting Commission ballot title in April 2018?

Plain-English summary

David Couch asked Attorney General Leslie Rutledge to certify the popular name and ballot title of a proposed constitutional amendment changing how Arkansas draws congressional and state legislative districts. The measure would create a seven-member Citizens' Redistricting Commission and repeal Article 8 of the Arkansas Constitution. In her April 20, 2018 opinion, the AG rejected the submission because she could not fairly summarize the measure while its text and title remained unclear.

The AG listed nine concerns. She wanted the repeal of Article 8 placed more prominently in the long ballot title. The measure defined “immediate family member,” but included household residents and agents in a way that might reach unrelated people; the title did not explain that breadth. Two party-affiliation provisions left unclear how many commissioners could have party ties and during what part of the preceding five years. The selection process did not say what would happen if the first four commissioners deadlocked when choosing the other three.

The AG also questioned a confusing distinction inside the measure's definition of “Arkansas public office,” and asked for definitions of “geographic or political units” and “jurisdictions.” She found section 15's wording about districts discriminating or favoring groups unclear and inconsistent with its ballot-title summary. Finally, she said a provision suggesting the commission could be sued might alter the state's sovereign immunity and would need clear disclosure if intended. She separately cautioned that the measure's complexity could make a sufficiently clear ballot title difficult.

Currency note

This opinion was issued in 2018. Verify the current constitution, initiative statute, and any later opinions before relying on its analysis for a present proposal.

Common questions

Were “immediate family member” and “Arkansas public office” undefined? No. The proposal defined both. The AG objected to how the family definition could extend to household residents or agents who might not be relatives. She also found an unclear distinction within the public-office definition between an “appointed office” and “a public office which is filled by appointment.”

What could go wrong when choosing commissioners?
The proposal had four initial commissioners select three additional members by majority vote within 14 days. It did not say what would happen if the four split 2-2 and failed to agree. The AG said the measure and title needed to explain that process.

Did the AG identify only two concerns?
No. The discussion numbers nine concerns. It also flags placement of the Article 8 repeal, party-affiliation limits, terms for geographic units, wording of the districting standard, and a possible effect on sovereign immunity.

Why did the AG reject rather than rewrite the ballot title? She said some of the uncertainties were in the measure itself. Until they were resolved, she could not know precisely what changes would let the title fairly and completely describe it.

Did the AG rule on the merits of an independent commission? No. The opinion says the AG does not consider a proposed measure's merits when deciding whether to certify or reject its popular name and ballot title.

Background and statutory framework

Ark. Code Ann. § 7-9-107 authorizes the AG to certify a proposed popular name and ballot title, substitute and certify language if practicable, or reject a misleading submission. This opinion applied that review to the submitted measure and title; it did not decide how Arkansas should draw districts.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017)
• Ark. Const., art. 8 (proposed repeal identified by the AG)

Source

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

Original opinion text

STATE OF ARKA NSAS
ATTORN EY GE N ERA L
LES LI E RU TLEDGE

Opinion No. 2018-036

April 20, 2018

David A. Couch
Attorney at Law
1501 North University, 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 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. 1 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. 2 In this way, voters will have a fair understanding of the issues presented by referenced to the ballot title alone. 3

1
Ark. Code Ann . § 7-9-107(c) (Supp. 2017).
2
See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846, 848 (1948). 3 Becker v. Riviere , 270 Ark. 219, 226, 604 S. W.2d 555 , 558 ( 1980) (internal citations omitted).

323 C EN TE R STRE ET. SU ITE 200 · LI TTL E RO C K. ARKANSAS 7220 1 TEL EPH O N E (5 01 ) 682-200 7 · FAX (5 01) 682-8084 A l"l KAN SAS A G.GO V
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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 4 contrary to law," this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. 5 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

The Arkansas Citizens' Redistricting Commission Amendment of 2018

Ballot Title

This is an Amendment to the Arkansas Constitution that changes the manner for the decennial redistricting of Arkansas' [sic] congressional and state legislative districts. The Amendment establishes a Citizens' Redistricting Commission (the Commission) consisting of seven members. The Amendment provides that one of the members shall be appointed by the Majority Leader of the House of Representatives, one by the Minority Leader of the House of Representatives, one by the Majority Leader of the Senate, and one by the Minority Leader of the Senate. These four members of the Commission shall choose three additional members of the Commission by majority vote. No more than four of the members of the Commission shall have any political party affiliation as 4
See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). 5 As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents. David A. Couch, Esq. Opinion No. 2018-036 Page 3

determined by statewide voter registration and the three members elected by the commissioner's [sic] shall not be affiliated with any political party as determined by statewide voter registration. Each member of the Commission shall be a registered voter in Arkansas for the five years preceding their appointment and has [sic] voted in each of the last two statewide general elections. A person is ineligible to serve as a commissioner if the person or his/her immediate family member currently or has at any time during the five years preceding his or her appointment served as an elected or appointed statewide or constitutional officer, a member of the United States Congress, the Arkanas [sic] General Assembly or as a city or county official. A person is ineligible to serve as a commissioner if the person currently or at any time during the five years immediately preceding his or her appointment has served as a federal, state or local lobbyist. A person is ineligible to serve as a commissioner if the person currently or at any time during the five years immediately preceding his or her appointment is [sic] an employee of the federal, state or local government, the United States Congress, the Arkansas General Assembly or a constitutional officer. A person who is retired from active duty in any branch of the United States Armed Forces or currently serves or has previously served in the United States Armed Forces Reserve is not ineligible as a result of such military service. A person is ineligible to serve as a commissioner if the person currently or at any time during the five years immediately preceding his or her appointment is [sic] an employee or compensated in any manner by the campaign committee of a candidate for the United States Congress, the Arkansas General Assembly or a statewide office or has been elected or appointed to a position with a national, state or local political party organization in the state, or has been employeed [sic] or has been compensated in any manner by a national, state, or local political party organization in this state. The appointments to the Commission shall be made between January 15 and February 1 in years ending in one. At a meeting called by the Secretary of State no later than February 15 [sic] the four members shall select within 14 days of the initial meeting by majority vote the three additional members. Five members of the Commission constitue [sic] a quorum and five or more affirmative votes are required for any official action. A commissioner may be removed from office by the Governor with the concurrence of two-thirds of the Senate for substantial neglect of duty, gross misconduct in office, or inability to discharge the duties David A. Couch, Esq.
Opinion No. 2018-036
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of the office. For any commissioner who does not complete his term, the replacement commissioner shall be appointed in the manner of the comm1ss10ners [sic] original appointment.
Commissioners shall have a term of office of ten years. In addition to the five-year restrictions on certain public service prior to becoming a commissioner, during the term of office and for three years thereafter a commissioner shall be ineligible for registration as a paid lobbyist or hold any Arkansas public office. The Commission shall establish single-member congressional and legislative districts using the following criteria in the following order of priority:
Districts shall be established on the basis of population and shall not vary by more than one percent of the ideal population for such districts, with the ideal population for each district determined by dividing the number of districts to be established into the population of the State, except as required to comply with the criteria following below, United States Constitution and the Federal Voting Rights Act; the districts shall be composed of contiguous territory; the geographic integrity of any city, county, local neighborhood, or community of interest shall be respected; districts shall be reasonably compact. In no case shall a district have a population that varies by more than five percent from the ideal district population nor shall a district have a population that varies by more than one percent from the average district population. The Amendment provides that no district shall discriminate against or favor a political party, incumbent legislator or member of Congress and not drawn to augment or dilute the voting strength of a language or racial minority group. The Amendment establishes the procedures the Commission must follow for establishing the legislative and congressional districts. The Amendment provides that the Commission shall have standing in all legal actions. The Amendment provides that the Department of Finance and Administration shall submit to the legislature a reccomendation [sic] for appropriation for adequate redistricting expenses and that the legislature shall make the necessary appropriations by majority vote.
The Amedment [sic] repeals Article 8 of the Arkansas Constitution that establishes a Board of Apportionment consisting of the Governor, the Secretary of State and the Attorney General. That Board currently establishes the State legislative districts. The Amendment repeals Arkansas Code Sections 7-2-101 - 105 and removes from the General Assembly the authority to establish the districts for the United States Congress. The Amendment provides David A. Couch, Esq.
Opinion No. 2018-036
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that original jurisdiction is vested in the Arkansas Supreme Court to compel the Commission to perform its duties.

GUIDELINES

The popular name is primarily a useful legislative device. 6 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. 7 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency. 8

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. 9 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." 10 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." 11 The Court has also disagproved the use of terms that are "technical and not readily understood by voters." 2 Without a definition of such terms in the ballot title, the title may be deemed insufficient. 13

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." 14 At the

6
Paffordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
7
See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see infra note 18. 8 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
9
Becker, 270 Ark. at 226, 604 S. W.2d at 558 (internal citations omitted).
10
Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
11
Id. at 9, 500 S.W.3d at 159.
12
Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167.
13
Id., 500 S.W.3d at 167.
14
Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
David A. Couch, Esq.
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same time, however, a ballot title must be brief and concise; 15 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. 16 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. 17 The title, however, must be "free of any misleading tendency whether by amrlification, omission, or fallacy, and it must not be tinged with partisan coloring." 1 The ballot title must be honest and impartial, 19 and it must convey an intelligible idea of the scope and significance of a proposed change in the law. 20

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. 21 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." 22 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.

15
See Ark. Code Ann. § 7-9-107(b).
16
Bailey, 318 Ark. at 284, 884 S. W .2d at 944.
17
Id. at 293, 884 S.W.2d at 946-47.
18
Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by the Arkansas Supreme Court as language that "creates a fatally misleading tendency[,]" Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996), or that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994). 19 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
2
°
Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted). 21 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).

22 Id.
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RESPONSE

It is my opinion-based on the above guidelines established by the Court-that 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 some 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 practicable, 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 ambiguities in the text of your proposal.

1. As an initial matter, your proposal represents a substantial change to long- standing Arkansas constitutional law by repealing Article 8 to the constitution, as well as statutory law. Although you clearly state that towards the bottom of your lengthy ballot title, in my opinion, the Court would want to see that language higher and more prominent in the ballot title. Otherwise, m my opinion, the ballot title does not sufficiently inform the voters.

2. Your ballot title states that "[a] person is ineligible to serve as a commissioner if the person or his/her immediate family member" currently or within the preceding five years has served in various appointive or elected federal, state, county, or local offices (emphasis added). "Immediate family member" is not defined in the ballot title. In my opinion, most voters would interpret this term as meaning a close relative-whether by blood or by law- such as a parent, spouse, child, or sibling, and maybe also as including grandparents and grandchildren. 23

23
This definition of who constitutes an "immediate family member" is one commonly found in the Arkansas Code. See, e.g., Ark. Code Ann. §§ 1 l-10-513(b)(2)(B) ("'immediate family member' means a spouse, child, parent, brother, sister, grandchild, or grandparent of the individual"), 16-90-703(8) ("'Immediate family' means a person's spouse, children, parents or guardian, siblings, and grandparents, whether related by blood, adoption, or marriage"), 19-11- 701 ( l l) ('"Immediate family' means a spouse, children, parents, brothers and sisters, and grandparents"), and 2 l-4-206(b )(2) ("'immediate family' means the father, mother, sister, brother, husband, wife, child, grandmother, grandfather, grandchild, in-laws, or any individual acting as parent or guardian of an employee). David A. Couch, Esq. Opinion No. 2018-036 Page 8

Your proposal, in section 4(E)(vii), appears to define "immediate family member" in much the same way, but then it goes on to include "anyone living or residing in the same residence or household with the person or spouse, or anyone acting or serving as an agent of the person." In my opinion, these last two clauses broaden the definition to include people beyond what the average voter would consider to be an "immediate family member." Moreover, it is unclear whether the people included in those two clauses have to be family members (and if so, how closely related) or whether they could include people who are unrelated. For instance, "anyone living or residing in the same residence or household" could describe a roommate or a lodger, while "anyone acting or serving as an agent of the person" could describe the person's attorney. Additionally, it is unclear whether "anyone living or residing in the same residence or household with the person or the spouse" would include people who live with the spouse who is legally separated from the person. In short, the voters will need to know what constraints (if any) there are on those final two clauses of that definition, and this will need to be made clear in a ballot title. 24

3. In subsection 4(A), you state that "[n]o more than four members of the Commission shall have a political party affiliation . . . for the 5 years immediately preceding his or her appointment to the Commission." This statement is ambiguous. It is unclear whether those other commission members are prohibited from having a political party affiliation for the full five years prior to appointment or for any period during those preceding five years.
This same ambiguity also exists in subsection 4(B) of the measure. This aspect of your proposal must be clarified.

4. In subsection 4(B), you state that "[n]o more than two members of the Commission shall have the same political party affiliation . . . for the 5 years immediately preceding his or her appointment ... " (see my reference to this ambiguity in the above point). That subsection goes on to state that it "does not preclude more than two" commissioners from having no political party affiliation (emphasis added). This second sentence makes that subsection

24
I realize that your definition of "immediate family member" mirrors the definition in Amendment 94 (codified at Ark. Const. art. 19, § 31 (Supp. 2017)), which established the Independent Citizens Commission. However, that amendment was placed on the 2014 ballot by the General Assembly pursuant to Article 19, section 22, not by popular initiative pursuant to Amendment 7. Amendments proposed by the legislature are governed under a different standard than those proposed by the people, see Thiel v. Priest, 342 Ark. 292, 28 S.W.3d 296 (2000); Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433 (1960). And this office has no authority to review legislatively proposed amendments or their ballot titles. David A. Couch, Esq. Opinion No. 2018-036 Page 9

unclear, in that it would be difficult for a voter to read that subsection-or section 4 as a whole-and determine how many commissioners may have or have had a political party affiliation and how many may not have or have had.
This aspect of your proposal must be clarified in a way that voters can understand.

5. Section 5 of your measure states that the leader of the majority party and the leader of the minority party in each legislative chamber will select the initial four members of this redistricting commission. Section 6 then states that these four commissioners will select three additional members (who are not registered with any political party) by majority vote within 14 days of their initial meeting. Your measure, however, makes no provision for what happens if the initial commissioners become deadlocked 2-2 and cannot agree in their selection of one or more of the three additional commissioners in that allotted time. This will have to be clarified in your measure and ballot title so voters will have a full understanding of how that process will work in order to aid them in making a reasoned decision in the voting booth.

6. Section 11 defines "Arkansas public office" as "any elective or appointed office in the executive or legislative branch of the government of this state, any constitutional office, or a public office which is filled by appointment." (Emphases added.) It is unclear what the difference is or what distinction you are trying to draw between an "appointed office" and "a public office which is filled by appointment."

7. In my opinion, the Court likely would see such terms used in your measure such as "geographic or political units" (as used in section 12 and 13) and "jurisdictions" (as used in section 14) as terms "not readily understood by voters." 25 In my view, these terms need defining.

8. Section 15 states that a district shall not "unfairly or unduly discriminate or favor" a political party, an incumbent legislator or member of Congress, and so forth. This phrase makes no sense in that it is unclear how a district, a conceptual subdivision of the State's territory, could discriminate against or favor anyone or anything. Furthermore, the words "unfairly" and "unduly" are subjective terms that could mean different things to different voters, and thus could lead to voter confusion. These qualifying words are also omitted from that portion of your ballot title, which states only that districts "shall not discriminate against or favor .... " Using these words in your measure and

25
See Wilson v. Martin, supra note 12 (and accompanying text).
David A. Couch, Esq.
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omitting them from your ballot title leads to a disconnect between the measure and ballot title, and thus is misleading. Finally, that section states that "[n]o district ... shall be drawn for the purpose of augmenting or diluting the voting strength of a language or racial minority [sic] group." It is unclear how a language-a means of human communication-can vote or acquires a voting strength. This section will need to be written more clearly and precisely so that it can be adequately summarized and included in a ballot title.

9. Your measure, especially section 28, strongly suggests that the commission would be able to be sued. This appears to represent an amendment by implication or an implied exception to the State's constitutional right to sovereign immunity. 26 If this is your intention, this would need to be clearly stated so that voters would be fully informed of this change in constitutional law.

As a final note, I believe a cautionary note is warranted in light of the significance of the subject matter undertaken-apportionment and redistricting-and the complexity and far-reaching effects of your proposal. I have to question whether the Court would view your measure as one that the voters could readily understand so as to be able to make a considered and informed choice in the voting booth. Over the years, experience has shown a direct correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot title challenge. The case of Page v. McCuen 27 is exemplary of that point. 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." 28 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

26
Ark. Const. art 5, § 20 ("The State of Arkansas shall never be made defendant in any of her courts."). See also Bd. of Trustees of Univ. of Arkansas v. Andrews, 2018 Ark. 12, *5, 535 S.W.3d 616, 619 (2018). 27 318 Ark. 342, 884 S. W.2d 951 ( 1994 ).
28
Page, 318 Ark. at 347, 884 S.W.2d at 954 (citing Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982)).
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description of the proposal so voters can cast their votes intelligently and with a fair understanding on the issue. 29

The Court concluded that the proposed measure in that case was "so expansive that it preclude[ d] the writing of an acceptable ballot title. " 30

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 fore~oing reasons and instruct you to redesign the proposed measure and ballot title. 1

Sincerely,

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LESLIE RUTLEDGE
Attorney General

Enclosure

29 Id.

30 Id.

31
Ark. Code Ann.§ 7-9-107(c).
Popular Name

THE ARKANSAS CITIZENS' REDISTRICTING COMMISSION
AMENDMENT OF 2018

Ballot Title

THIS IS AN AMENDMENT TO THE ARKANSAS CONSTITUTION THAT CHANGES THE MANNER FOR THE DECENNIAL REDISTRICTING OF ARKANSAS' CONGRESSIONAL AND STATE LEGISLATIVE DISTRICTS. THE AMENDMENT ESTABLISHES A CITIZENS' REDISTRICTING COMMISSION (THE COMMISSION) CONSISTING OF SEVEN MEMBERS. THE AMENDMENT PROVIDES THAT ONE OF THE MEMBERS SHALL BE APPOINTED BY THE MAJORITY LEADER OF THE HOUSE OF REPRESENTATIVES, ONE BY THE MINORITY LEADER OF THE HOUSE OF REPRESENTATIVES, ONE BY THE MAJORITY LEADER OF THE SENATE, AND ONE BY THE MINORITY LEADER OF THE SENATE. THESE FOUR MEMBERS OF THE COMMISSION SHALL CHOOSE THREE ADDITIONAL MEMBERS OF THE COMMISSION BY MAJORITY VOTE. NO MORE THAN FOUR OF THE MEMBERS OF THE COMMISSION SHALL HAVE ANY POLITICAL PARTY AFFILATION AS DETERMINED BY STATEWIDE VOTER REGISTRATION AND THE THREE MEMBERS ELECTED BY THE COMMISSIONER'S SHALL NOT BE AFFILIATED WITH ANY POLITICAL PARTY AS DETERMINED BY STATEWIDE VOTER REGISTRATION. EACH MEMBER OF THE COMMISSION SHALL BE A REGISTERED VOTER IN ARKANSAS FOR THE FIVE YEARS PRECEDING THEIR APPOINTMENT AND HAS VOTED IN EACH OF THE LAST TWO STATEWIDE GENERAL ELECTIONS. A PERSON IS INELIGIBLE TO SERVE AS A COMMISSIONER IF THE PERSON OR HIS/HER IMMEDIATE FAMILY MEMBER CURRENTLY OR HAS AT ANY TIME DURING THE FIVE YEARS PRECEDING HIS OR HER APPOINTMENT SERVED AS AN ELECTED OR APPOINTED STATEWIDE OR CONSTITUTIONAL OFFICER, A MEMBER OF THE UNITED STATES CONGRESS, THE ARKANAS GENERAL ASSEMBLY OR AS A CITY OR COUNTY OFFICIAL. A PERSON IS INELIGIBLE TO SERVE AS A COMMISSIONER IF THE PERSON CURRENTLY OR AT ANY TIME DURING THE FIVE YEARS IMMEDIATELY PRECEDING HIS OR HER APPOINTMENT HAS SERVED AS A FEDERAL, STATE OR LOCAL LOBBYIST. A PERSON IS INELIGIBLE TO SERVE AS A COMMISSIONER IF THE PERSON CURRENTLY OR AT ANY TIME DURING THE FIVE YEARS IMMEDIATELY PRECEDING HIS OR HER APPOINTMENT IS AN EMPLOYEE OF THE FEDERAL, STATE OR LOCAL GOVERNMENT, THE UNITED STATES CONGRESS, THE ARKANSAS GENERAL ASSEMBLY OR A CONSTITUTIONAL OFFICER. A PERSON WHO IS RETIRED FROM ACTIVE DUTY IN ANY BRANCH OF THE UNITED STATES ARMED FORCES OR CURRENTLY SERVES OR HAS PREVIOUSLY SERVED IN THE UNITED STATES ARMED FORCES RESERVE IS NOT INELIGIBLE AS A RESULT OF SUCH MILITARY SERVICE. A PERSON IS INELIGIBLE TO SERVE AS A COMMISSIONER IF THE PERSON CURRENTLY OR AT ANY TIME DURING THE FIVE YEARS IMMEDIATELY PRECEDING HIS OR HER APPOINTMENT IS AN EMPLOYEE OR COMPENSATED IN ANY MANNER BY THE CAMPAIGN COMMITTEE OF A CANDIDATE FOR THE UNITED STATES CONGRESS, THE ARKANSAS GENERAL ASSEMBLY OR A STATEWIDE OFFICE OR HAS BEEN ELECTED OR APPOINTED TO A POSITION WITH A NATIONAL, STATE OR LOCAL POLITICAL PARTY ORGANIZATION IN THE STATE, OR HAS BEEN EMPLOYEED OR HAS BEEN COMPENSATED IN ANY MANNER BY A NATIONAL, STATE, OR LOCAL POLITICAL PARTY ORGANIZATION IN THIS STATE. THE APPOINTMENTS TO THE COMMISSION SHALL BE MADE BETWEEN JANUARY 15 AND FEBURARY 1 IN YEARS ENDING IN ONE. AT A MEETING CALLED BY THE SECRETARY OF STATE NO LATER THAN FEBRUARY 15 THE FOUR MEMBERS SHALL SELECT WITHIN 14 DAYS OF THE INITIAL MEETING BY MAJORITY VOTE THE THREE ADDITIONAL MEMBERS. FIVE MEMBERS OF THE COMMISSION CONSTITUE A QUORUM AND FIVE OR MORE AFFIRMITIVE VOTES ARE REQUIRED FOR ANY OFFICIAL ACTION. A COMMISSIONER MAY BE REMOVED FROM OFFICE BY THE GOVERNOR WITH THE CONCURRENCE OF TWO-THIRDS OF THE SENATE FOR SUBSTANTIAL NEGLECT OF DUTY, GROSS MISCONDUCT IN OFFICE, OR INABILITY
TO DISCHARGE THE DUTIES OF THE OFFICE.
FOR ANY
COMMISSIONER WHO DOES NOT COMPLETE HIS TERM, THE
REPLACEMENT COMMISSIONER SHALL BE APPOINTED IN THE
MANNER OF THE COMMISSIONERS ORIGINAL APPOINTMENT.
COMMISSIONERS SHALL HAVE A TERM OF OFFICE OF TEN YEARS. IN ADDITION TO THE FIVE-YEAR RESTRICTIONS ON CERTAIN PUBLIC SERVICE PRIOR TO BECOMING A COMMISSIONER, DURING THE TERM OF OFFICE AND FOR THREE YEARS THEREAFTER A COMMISSIONER SHALL BE INELIGIBLE FOR REGISTRATION AS A PAID LOBBYIST OR HOLD ANY ARKANSAS PUBLIC OFFICE. THE COMMISSION SHALL ESTABLISH SINGLE-MEMBER CONGRESSIONAL AND LEGISLATIVE DISTRICTS USING THE FOLLOWING CRITERIA IN THE FOLLOWING ORDER OF PRIORITY: DISTRICTS SHALL BE ESTABLISHED ON THE BASIS OF POPULATION AND SHALL NOT VARY BY MORE THAN ONE PERCENT OF THE IDEAL POPULATION FOR SUCH DISTRICTS, WITH THE IDEAL POPULATION FOR EACH DISTRICT DETERMINED BY DIVIDING THE NUMBER OF DISTRICTS TO BE ESTABLISHED INTO THE POPULATION OF THE STATE, EXCEPT AS REQUIRED TO COMPLY WITH THE CRITERIA FOLLOWING BELOW, UNITED STATES CONSTITUTION AND THE FEDERAL VOTING RIGHTS ACT; THE DISTRICTS SHALL BE COMPOSED OF CONTIGUOUS TERRITORY; THE GEOGRAPHIC INTEGRITY OF ANY CITY, COUNTY, LOCAL NEIGHBORHOOD, OR COMMUNITY OF INTEREST SHALL BE RESPECTED; DISTRICTS SHALL BE REASONABLY COMPACT. IN NO CASE SHALL A DISTRICT HAVE A POPULATION THAT VARIES BY MORE THAN FIVE PERCENT FROM THE IDEAL DISTRICT POPULATION NOR SHALL A DISTRICT HAVE A POPULATION THAT VARIES BY MORE THAN ONE PERCENT FROM THE AVERAGE DISTRICT POPULATION. THE AMENDMENT PROVIDES THAT NO DISTRICT SHALL DISCRIMINATE AGAINST OR FAVOR A POLITICAL PARTY, INCUMBENT LEGISLATOR OR MEMBER OF CONGRESS AND NOT DRAWN TO AUGMENT OR DILUTE THE VOTING STRENGTH OF A LANGUAGE OR RACIAL MINORITY GROUP. THE AMENDMENT ESTABLISHES THE PROCEDURES THE COMMISSION MUST FOLLOW FOR ESTABLISHING THE LEGISLATIVE AND CONGRESSIONAL DISTRICTS. THE AMENDMENT PROVIDES THAT THE COMMISSION SHALL HAVE STANDING IN ALL LEGAL ACTIONS. THE AMENDMENT PROVIDES THAT THE DEPARTMENT OF FINANCE AND ADMINSTRATION SHALL SUBMIT TO THE LEGISLATURE A RECCOMENDATION FOR APPROPRIATION FOR ADEQUATE REDISTRICTING EXPENSES AND THAT THE LEGISLATURE SHALL MAKE THE NECESSARY APPROPRIATIONS BY MAJORITY VOTE. THE AMEDMENT REPEALS ARTICLE 8 OF THE ARKANSAS CONSTITUTION THAT ESTABLISHES A BOARD OF APPORTIONMENT CONSISTING OF THE GOVERNOR, THE SECRETARY OF STATE AND THE ATTORNEY GENERAL. THAT BOARD CURRENTLY ESTABLISHES THE STATE LEGISLATIVE DISTRICTS. THE AMENDMENT REPEALS ARKANSAS CODE SECTIONS 7-2-101-105 AND REMOVES FROM THE GENERAL ASSEMBLY THE AUTHORITY TO ESTABLISH THE DISTRICTS FOR THE UNITED STATES CONGRESS. THE AMENDMENT PROVIDES THAT ORIGINAL JURISDICTION IS VESTED IN THE ARKANSAS SUPREME COURT TO COMPEL THE COMMISSION TO PERFORM ITS DUTIES. ARKANSAS CITIZENS' REDISTRICTING COMMISSION AMENDMENT

(1) The Senate shall consist of thirty-five members elected from each

of the thirty-five senatorial districts established pursuant to this

Amendment. Each district shall have one member.

(2) The House of Representatives shall be composed of one hundred

members elected from each of the one hundred representative districts

established pursuant to this Amendment. Each district shall have one

member.

(3) On or before March 1 of each year that ends in one, a Citizens'

Redistricting Commission ("The Commission") shall be established to

provide for the redistricting of congressional and state legislative

districts. The Commission shall conduct the state's decennial

congressional and legislative redistricting, including, but not limited to,

preparing and adopting redistricting plans and conducting public

hearings on proposed plans.

(4) The Commission shall consist of seven private citizens who meet

the requirements of this section.

A. No more than four members of the Commission shall have a

political party affiliation as determined by statewide voter registration for

the 5 years immediately preceding his or her appointment to the

Commission.

B. No more than two members of the Commission shall have

the same political party affiliation as determined by statewide voter

1 registration for the 5 years immediately preceding his or her appointment

to the Commission. This subsection does not preclude more than two

members of the Commission from having no political party affiliation as

determined by statewide voter registration records.

C. Of the seven members of the Commission, no more than two

members shall reside in the same congressional district.

D. Each member shall be a registered Arkansas voter who has

been continuously registered with the same political party or registered

as unaffiliated with a political party for five or more years immediately

preceding appointment, who has voted in each of the last two statewide

general elections immediately preceding his or her appointment to the

Commission, and who is committed to applying the provisions of this

section in an honest, independent and impartial fashion and to

upholding public confidence in the integrity of the redistricting process.

E. A person is ineligible to serve on the Commission if the

person or his or her immediate family member:
i. Has served, at any time during the 5 years

immediately preceding his or her appointment to the Commission, or

currently serves as an elected or appointed statewide or constitutional

officer, as a member of the United States Congress or the General

Assembly, or as a city or county official.

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 IL Has served, at any time during the 5 years

immediately preceding his or her appointment to the Commission, or

currently serves as a federal, state, or local lobbyist.
iii. Has served, at any time during the 5 years

immediately preceding his or her appointment to the Commission, or

currently serves as an employee of one of the following:

1. The Federal, State, or local Government.

2. The United States Congress.

3. The General Assembly.

4. A constitutional officer.

For purposes of this paragraph, a person who has

retired from active duty in any branch of the United States Armed Forces

or currently serves or has previously served in the United States Armed

Forces Reserve is not ineligible as a result of such military service.
iv. Has been employed or compensated, at any time

during the 5 years immediately preceding his or her appointment to the

Commission, or is currently employed or compensated in any manner by

the campaign committee of a candidate for United States Congress, the

General Assembly, or statewide office.
v. Has been elected or appointed to a position with a

national, state, or local political party organization in the state.

3 vi. Has been employed or has been compensated in any

manner by a national, state, or local political party organization in the

state.
vii. For purposes of this subsection, the term "immediate

family member" means a person's spouse, a child of the person or

spouse, a child's spouse, a parent of the person or the spouse, a brother

or sister of the person or the spouse, anyone living or residing in the

same residence or household with the person or the spouse, or anyone

acting or serving as an agent of the person.

(5) Appointments to the Commission shall be made in the order and

manner set forth below. Between January 15 and February 1 of years

ending in one, the majority party leader of the Arkansas House of

Representatives shall make one appointment to the Commission,

followed by one appointment made in turn by each of the following: the

minority party leader of the Arkansas House of Representatives, the

majority party leader of the Arkansas Senate, and the minority party

leader of the Arkansas Senate. Any official who fails to make an

appointment within the specified time period will forfeit the appointment

privilege and the privilege will go to the next highest-ranking member of

the party whose member failed to make the appointment. In the event

that there are two or more minority parties within the House or the

Senate, the leader of the largest minority party by statewide party

registration shall make the appointment. Each of the officials making

4 appointments to the Commission according to Section 5 shall appoint an

individual who has the same political party affiliation, determined by

statewide voter registration, as the respective official making the

appointment.

(6) At a meeting called by the Secretary of State no later than

February 15 the four Commission members shall select by majority vote

three additional members who shall not be registered with any political

party (or have been in the previous 5 years). The appointments shall be

made within 14 days of the initial meeting called by the Secretary of

State.

(7) The seven Commission members shall select, by majority vote, one

of the seven commissioners to serve as chair of the Commission. The

seven commissioners shall then select by majority vote one of their

members to serve as vice-chair.

(8) After having been served written notice and provided with an

opportunity for a response, a member of the Commission may be

removed by the governor, with the concurrence of two-thirds of the

senate, for substantial neglect of duty, gross misconduct in office, or

inability to discharge the duties of office.

(9) If a commissioner or chair does not complete the term of office for

any reason ("outgoing commissioner"), a replacement commissioner shall

be appointed in the manner of the outgoing commissioner's original

appointment as prescribed in Sections 5 or 6. The appointment of a

5 replacement commissioner or chair shall be made within fourteen days.

The newly appointed commissioner shall serve out the remainder of the

original term.

(10) Five comm1ss10ners, including the chair or vice-chair,

constitute a quorum. Five or more affirmative votes are required for any

official action. Where a quorum is present, the Commission shall conduct

business in meetings open to the public, with at least 72 hours public

notice provided. The Commission is subject to all aspects of Arkansas

open meetings and freedom of information law.

(11) A commissioner, during the Commissioner's term of office

and for three years thereafter, shall be ineligible for registration as a paid

lobbyist or to hold any Arkansas public office, meaning any elective or

appointed office in the executive or legislative branch of the government

of this state, any constitutional office, or a public office which is filled by

appointment. The General Assembly shall make such laws as are

necessary to enforce this restriction and to punish violations.

(12) The Commission, or the Department of Finance and

Administration acting on the Commission's behalf, shall acquire, as soon

as practicable, appropriate information and develop programs and

procedures in preparation for drawing congressional and legislative

redistricting plans on the basis of each federal census. The Commission,

or the Department of Finance and Administration acting on the

Commission's behalf, shall obtain, as soon as practicable, from the

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United States bureau of the Census information regarding geographic

and political units in this state for which federal census population data

has been gathered and will be tabulated. The Commission, or the

Department of Finance and Administration acting on the Commission's

behalf, shall use the data so obtained to:

A. Prepare necessary descriptions of geographic and political

units for which census data will be reported, and which are suitable for

use as components of legislative districts.

B. Prepare maps of counties, cities and other geographic units

within the state, which may be used to illustrate the locations of

legislative district boundaries proposed in plans drawn in accordance

with section 14.

(13) As soon as possible after February 1 of each year ending in

one, the Commission, or the Department of Finance and Administration

acting on the Commission's behalf, shall obtain from the United States

Bureau of the Census the population data needed for congressional and

legislative districting which the census bureau is required to provide this

state under United States Pub. L. No. 94-171, and shall use that data to

assign a population figure based upon certified federal census data to

each geographic or political unit described pursuant to subsection 12(A)

Upon completing that task, the Commission shall begin the preparation

of congressional and legislative districting plans.

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 (14) The Commission shall establish single-member

congressional and legislative districts using the following criteria as set

forth in the following order of priority:

A. Legislative, or "senatorial" and "representative" districts, and

congressional districts shall be established on the basis of population.

Legislative and congressional districts, respectively, shall have a

population as nearly equal as practicable to the ideal population for such

districts. Ideal population is determined by dividing the number of

districts to be established into the population of the state reported in the

federal decennial census.
i. Legislative districts shall have a population which

vanes by no more than one percent from the applicable ideal district

population, except as required to comply with 14(B) through 14(G).

Before adopting a redistricting plan, the Commission shall issue a report

justifying any deviation of a district's population in excess of one percent

of the applicable ideal district population. In no case shall a district have

a population which varies by more than five percent from the applicable

ideal district population, nor shall the quotient, obtained by dividing the

total of the absolute values of the deviations of all district populations

from the applicable ideal district population by the number of districts

established, exceed one percent of the applicable ideal district

population. No senatorial district shall have a population which exceeds

that of any other senatorial district by more than five percent, and no

8 representative district shall have a population which exceeds that of any

other representative district by more than five percent.
ii. No congressional district shall have a population

which varies by more than one percent from the applicable ideal district

population, except as necessary to ensure that a congressional district

with more than one county shall not be separated entirely by a county

belonging to another congressional district.

B. Districts shall adhere to the United States Constitution and

the federal Voting Rights Act.

C. Districts shall be composed of contiguous territory. Areas

which meet only at the points of adjoining corners are not contiguous.

Contiguousness means that a person can reach any point in a district

without having to cross that district's boundary.

D. The geographic integrity of any city, county, local

neighborhood, or community of interest shall be respected in a manner

that minimizes their division to the extent possible without violating the

requirements of any of the preceding subdivisions. A community of

interest is a contiguous population which shares common social, ethnic,

or economic interests that should be included within a single district for

purposes of its effective and fair representation. Communities of interest

shall not include relationships with political parties, incumbents, or

political candidates.

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 E. Districts shall be reasonably compact in form. In general,

reasonably compact districts are those which are not irregularly shaped,

to the extent permitted by natural or political boundaries, and the

compactness of a district is greatest when the length of the district and

the width of the district are equal, and when the distance needed to

traverse the perimeter boundary of a district is as short as possible.

F. To the extent practicable, district boundaries shall use

visible geographic features, coincide with the boundaries of political

subdivisions of the state, and include undivided census tracts. The

Commission shall minimize the number of divided counties, cities, and

census tracts in that order. If a district is entirely contained within a

single jurisdiction, that district shall not be considered to divide that

jurisdiction. If a city is in more than one county, the city shall not be

considered divided so long as all portions of that city within a county are

contained entirely within a single district. Where feasible, no jurisdiction

shall be divided more than once.

(15) No district shall unfairly or unduly discriminate or favor a

political party, incumbent legislator or member of Congress, or other

person or group, nor be drawn for the purpose of augmenting or diluting

the voting strength of a language or racial minority group, except as

required to comply with federal law.

(16) The Commission shall establish the legislative and

congressional districts according to the following procedures:

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 A. At any time pnor to finalizing a redistricting plan, the

Commission shall conduct at least one
public hearing in each

congressional district in this state, after providing adequate advance

notice to the public so that any interested citizens have a reasonable

opportunity to express their views with regard to redistricting plans.

B. The Commission shall develop and maintain a public website

making available all data used or considered by the Commission and

containing the following: copies of all proposed plans or maps, with

population and demographic data for each district; transcripts of all

meetings of the Commission; and copies of all written reports or other

materials required by this Amendment to be prepared by the Commission

or the department of finance and administration.

C. The Commission shall develop at least three (3) draft maps of

congressional districts and at least three (3) draft maps of legislative

districts based on the parameters set forth in Section 14 to this

Amendment, and present, including publishing on the internet, such

draft districts to the public for comment, which comment shall be taken

for at least thirty (30) days. In establishing these draft districts, the

Commission shall not use any of the following data:

i. Addresses of incumbent legislators or members of

Congress.

ii. Political affiliations of registered voters.

iii. Voting history

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 iv. Previous election results.

D. Upon presenting the draft maps of districts to the public for

comment, the Commission shall use and make public the data listed in

Section (16)(A)(ii)-(iv) to evaluate compliance of the draft districts with

Section 15 and any applicable criteria in Section 14. The Commission

shall then establish final district boundaries.

(17) If a challenge is filed with the supreme court alleging

excessive population variance among districts established in a plan

adopted by the Commission, the Commission has the burden of

justifying any variance in excess of one percent between the population

of a district and the applicable ideal district population.

(18) The provisions regarding this section are self-executing. The

Commission shall certify to the Secretary of State the establishment of

congressional and legislative districts on or before October 31 in years

ending in one (1).

(19) Consistent with Article 5, Section 3 of the Arkansas

Constitution, after establishment of legislative districts, the qualified

electors of each senate district shall elect a senator in the next election in

the year ending in two (2), and at the first session of the newly elected

senate, the senators shall divide themselves into two classes, by lot, and

the first class shall hold their places for two years only, after which all

shall be elected for four years.

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 (20) The Department of Finance and Administration or its

successor shall submit to the legislature, prior to each regular session of

the General Assembly beginning with January 2019, a recommendation

for an appropriation for adequate redistricting expenses, including for

necessary software and other materials, and shall make available

adequate office space for the operation of the Commission. The

legislature shall make the necessary appropriations by a majority vote.

(21) The Commission, with fiscal oversight from the Department

of Finance and Administration or its successor, shall have procurement

and contracting authority, may buy materials, including software, and

may hire staff and consultants for the purposes of this section, including

legal representation.

(22) The Commission shall have standing in legal actions

regarding the redistricting plan and the adequacy of resources provided

for the operation of the Commission.

(23) Members of the Commission are eligible for reimbursement

of expenses pursuant to law including a per diem of up to $200.00. This

amount may be increased by the General Assembly by a majority vote.

(24) Employees of the Department of Finance and Administration

or its successor shall not influence or attempt to influence the district-

mapping decisions of the Commission.

(25) Each commissioner's term of office shall be either ten years

from the date of the commissioner's appointment or until the date of

13 appointment of the first member of the next redistricting commission.

Each commissioner's duties established by this section expire upon

completion of the commissioner's ten-year term or upon the appointment

of the first member of the next redistricting commission; however,

commissioners may be reappointed following the procedures in Sections

4 or 5 herein. The Commission shall not meet or incur expenses after the

redistricting plan is completed, except if litigation or any government

approval of the plan is pending, or to revise districts if required by court

decisions or if the number of congressional or legislative districts is

changed.

(26) Article 8 of the Arkansas Constitution is hereby repealed in

its entirety.

(27) The authority for apportionment and redistricting of districts

for U.S. Congress is hereby removed from the General Assembly and

vested in the Commission. Arkansas Code Annotated sections 7-2-101 -

105 are hereby repealed in their entirety.

(28) Original Jurisdiction (to be exercised on application of citizen

and taxpayer) is hereby vested in the Supreme Court of this State to

compel (by mandamus, contempt, or otherwise) the Commission to

perform its duties, including but not limited to the adoption of a plan

according to Sections 10 and 18 of this Amendment.

(29) In the event any section, subsection, subdivision, paragraph,

subparagraph, item, sentence, clause, phrase, or word of this

14 amendment is declared or adjudged to be invalid or unconstitutional,

such declaration or adjudication shall not affect the remaining portions

of this amendment, which shall remain in full force and effect as if the

portion so declared or adjudged invalid or unconstitutional was not

originally a part of this amendment.

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