What happens when an Arkansas ballot-title sponsor resubmits virtually the same proposal the AG already rejected?

Plain-English summary

Robert L. Reed of Dennard, Arkansas, submitted a 2018 cannabis legalization constitutional amendment. AG Leslie Rutledge rejected it, but on procedural rather than substantive grounds: the proposal was virtually identical to a 2016 proposal Reed had already submitted, which the AG had rejected in Op. Att'y Gen. 2016-110. The only changes from the earlier version were the effective date and the deletion of one section.

The AG's response was sharp. Section 7-9-107 of the Arkansas Code does not require the AG to relitigate identical proposals. Resubmitting language that had already been identified as problematic, without addressing the problems, is itself a defective submission. The AG declined to walk through the same analysis again, instead referring the sponsor back to Op. 2016-110, and stated explicitly that "[a]ny future submissions with similar defects will not be capable of summary in a ballot title giving voters a fair understanding of the issues presented."

This is a useful procedural opinion for sponsors of any Arkansas initiative: the AG can decline to do a full review when the submission ignores prior guidance.

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.

The Arkansas AG's standards for handling ballot-title resubmissions remain shaped by case law and Op. Att'y Gen. 2016-110, but a current sponsor should consult current AG guidance.

Common questions

What was the substance of the original 2016 proposal?

According to the version reproduced here, the proposed amendment would have legalized the cultivation, manufacture, distribution, sale, possession, and use of the cannabis plant in every county of Arkansas, defined "hemp" as containing 1% or less Delta-9-THC and "cannabis" as containing more than 1%, allowed legislative regulation but not prohibition, and overridden conflicting state laws. The 2016 version had been rejected for ambiguities the AG identified at length. (The 1% threshold also differs from the federal 0.3% threshold the 2018 Farm Bill would later adopt for industrial hemp.)

Why is this opinion so short compared to other rejections?

Because the AG had already done the long-form review in 2016. Repeating it would have wasted office resources without giving the sponsor anything new. The 2018 opinion is the AG saying: nothing has changed, so my answer has not changed.

What does it mean that the AG will not consider future submissions with similar defects?

It is a warning, not a binding bar. The AG is signaling that bringing back the same defective proposal is not a way around the 2016 rejection. To get the AG to engage substantively, the sponsor would have to draft the proposal differently to address the underlying problems, not just tweak the effective date.

Did the sponsor try again?

Yes. Robert Reed submitted a different cannabis amendment in May 2018 (see Op. Att'y Gen. 2018-051), which the AG also rejected, this time on substantive grounds (the proposal failed to explain how it would interact with Arkansas's Medical Marijuana Amendment 98). None of Reed's 2018 cannabis proposals reached the November 2018 ballot.

What is Op. 2016-110?

It is the 2016 AG opinion on the original version of this same proposal. Like 2018-037, AG opinions are searchable in the Arkansas AG's online opinions database. To understand exactly what was wrong with the 2016 version, look up that opinion directly.

Background and statutory framework

The standard rule is that each ballot-title submission gets reviewed on its own terms. The AG will identify ambiguities and explain the test. But the AG has no obligation to repeat the analysis when the same defective language returns. Section 7-9-107 imposes a duty on the AG to act, but not to relitigate; Roberts v. Priest and Bailey v. McCuen set the substantive standards for what kinds of ambiguities require rejection in the first place.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Op. Att'y Gen. 2016-110 (the original substantive review the AG referred the sponsor back to)
• Op. Att'y Gen. 2018-051 (a separate 2018 cannabis amendment from the same sponsor, also rejected)

Source

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

Original opinion text

Opinion No. 2018-037
April 23, 2018
Robert L. Reed
295 Elan Trail
Dennard, AR 72629
Dear Mr. Reed:
STATE OF ARKANSAS
ATTORNEY GENERAL
LES LI E RUTLEDGE
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.
Arkansas Code Annotated 7-9-107 authorizes my office to 1) certify the popular
name and ballot title of a proposed measure, 2) substitute and certify the popular
name and ballot title, 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 ENTrn STREET. SUITE 200 · LITTLE ROCK. ARKANSAS 7220 I
TELEPHONE (501) 682-2007 ·FAX (501) 682-8084
ARKANSASAG.GOV Robert L. Reed
Opinion No. 2018-037
Page 2
Importantly, crafting and accurately summarizing the measure are the sponsor's
responsibilities prior to submission to this office. While I am authorized to
substitute and certify a ballot title that is more suitable (in terms of affording
voters a fair understanding of the issues presented), 4 section 7-9-107 does not
require that I modify the proposed measure itself, in order to then summarize its
text in a suitable ballot title.
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 Hemp and Cannabis Amendment
Ballot Title
An Amendment proposed by the people to the Arkansas Constitution
to provide effective January 1, 2019, that the cultivation,
manufacturing, distribution, sale, possession and use of the cannabis
plant (genus cannabis) and all products derived from the cannabis
plant (genus cannabis) is permitted in every geographic area of each
and every county of this State; that for purposes of this Amendment,
"hemp [sic] is defined as any part of the cannabis plant (genus
cannabis), living or not, containing one percent or less, by dry
weight, Delta-9-Tetrahydrocannabinol (Delta-9-THC); "cannabis" is
defined as any part of the cannabis plant (genus cannabis), living or
not, containing greater than one percent, by dry weight, Delta-9-
Tetrahydrocannabinol (Delta-9-THC). That the cannabis plant
(genus cannabis) may be regulated but not prohibited by the General
Assembly; and, that all laws in conflict with this Amendment are
4 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994) (internal quotation omitted).
The Arkansas Supreme Court has explained that ballot titles are legally insufficient unless they
"adequately inform" voters and enable a "reasoned decision in the voting booth." Lange v.
Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2. Likewise, a ballot title cannot be approved ifthe
text of the proposal creates a disconnect between the ballot title and the content of the proposed
measure. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). This is because
"internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot
title, and to confusion in the ballot title itself." Id. Robert L. Reed
Opinion No. 2018-037
Page 3
repealed to the extent they conflict with his [sic] Amendment.
Preemptive federal law will remain in effect unless altered by
Congress.
RESPONSE
My statutory duty is to certify, substitute and certify, or reject the entire proposal
submitted. Your proposed measure as submitted has a threshold shortcoming that
requires me to reject the ballot title and popular name as drafted.
DISCUSSION
You previously submitted a popular name and ballot title for a proposed
constitutional amendment that is virtually identical to the current proposal. I
addressed that proposal in Attorney General Opinion 2016-110. The only
differences between the previous submission and the current proposal are the
amendment's effective date and the deletion of one section.
In my previous opinion, I summarized the Arkansas Supreme Court's guidelines
for determining the sufficiency of a measure's popular name and ballot; and I
highlighted a number of ambiguities in the text of your proposed measure that
prevented certification of a satisfactory popular name and ballot title. I explained
that without resolution of these ambiguities, I could not perform my statutory duty
to the satisfaction of the Court. I rejected your proposed ballot title, and I
instructed you to redesign the proposed measure and ballot title.
For whatever reason, you have now submitted for my approval a popular name
and ballot title for essentially the same proposal. It is insufficient, under section 7-
9-107, to simply bring back language previously identified as problematic. Doing
so results in a fundamentally flawed submission. At a minimum, the problems
identified in Opinion 2016-110 must be addressed before this office will consider
any further submissions. Any future submissions with similar defects will not be
capable of summary in a ballot title giving voters a fair understanding of the issues
presented.
Under these circumstances, I will not restate the Court's guidelines or the
problems identified in Opinion 2016-110, but instead refer you to that opinion for
the analysis. The Arkansas Constitution does not charge my office with any role
in drafting initiated constitutional amendments or acts. My duty in reviewing
5 This opinion is available on this office's website at www.ArkansasAG.gov/opinions. Robert L. Reed
Opinion No. 2018-037
Page 4
submissions under section 7-9-107 is to the electorate as a whole. I cannot advise
or advocate for individual sponsors. 6 Amending the Constitution is a serious
matter that demands great attention to detail. Sponsors must make the necessary
efforts to ensure that their proposed measures, popular names, and ballot titles
have been thoroughly vetted for compliance with the high standards that have been
established by the Court prior to their submission to my office.
Based on what has been submitted, my statutory duty is to reject your proposed
ballot title for the foregoing reasons and instruct you to redesign the proposed
measure and ballot title, should you choose to resubmit. 7
Sincerely,
~~
LESLIE RU;~~
Attorney General
Enclosure
6 See Op. Att'y Gen. 2017-032 (citing Ark. Code Ann. § 25-16-70 I, which prohibits the Attorney
General from engaging in the private practice of law).
7 Ark. Code Ann. § 7-9-107( c ). Popular Name
The Arkansas Hemp and Cannabis Amendment
Ballot Title
AN AMENDMENT PROPOSED BY THE PEOPLE TO THE ARKANSAS CONSTITUTION TO
PROVIDE EFFECTIVE JANUARY 1, 2019, THAT THE CULTIVATION, MANUFACTURING,
DISTRIBUTION, SALE, POSSESSION AND USE OF THE CANNABIS PLANT (GENUS
CANNABIS) AND ALL PRODUCTS DERIVED FROM THE CANNABIS PLANT (GENUS
CANNABIS) IS PERMITTED IN EVERY GEOGRAPHIC AREA OF EACH AND EVERY COUNTY
OF THIS STATE; THAT FOR PURPOSES OF THIS AMENDMENT, "HEMP IS DEFINED AS ANY
PART OF THE CANNABIS PLANT (GENUS CANNABIS), LIVING OR NOT, CONTAINING
ONE PERCENT OR LESS, BY DRY WEIGHT, DELTA-9-TETRAHYDROCANNABINOL (Delta-9-
THC); "CANNABIS" IS DEFINED AS ANY PART OF THE CANNABIS PLANT (GENUS
CANNABIS), LIVING OR NOT, CONTAINING GREATER THAN ONE PERCENT, BY DRY
WEIGHT, DELTA-9-TETRAHYDROCANNABINOL (Delta-9-THC). THAT THE CANNABIS
PLANT (GENUS CANNABIS) MAY BE REGULATED BUT NOT PROHIBITED BY THE
GENERAL ASSEMBLY; AND, THAT ALL LAWS IN CONFLICT WITH THIS AMENDMENT ARE
REPEALED TO THE EXTENT THEY CONFLICT WITH HIS AMENDMENT. PREEMPTIVE
FEDERAL LAW WILL REMAIN IN EFFECT UNLESS ALTERED BY CONGRESS.
Section 1. This is an Amendment to the Arkansas Constitution that shall be called "The Arkansas
Hemp and Cannabis Amendment."
Section 2. Effective January 1, 2019, the cultivation, manufacturing, distribution, selling, possessing
and use of the cannabis plant (genus cannabis)and all products derived from the cannabis plant (genus
cannabis) is lawful within the entire geographic area of each and every county of this State.
Section 3. "Hemp" is defined for purposes of this amendment as any part of the cannabis plant (genus
cannabis), living or not, containing one percent or less, by dry weight, Delta-9-tetrahydrocannabinol
(Delta-9-THC).
Section 4. "Cannabis" is defined for purposes of this amendment as any part of the cannabis plant
(genus cannabis), living or not, containing greater than one percent, by dry weight, Delta-9-
tet~ahydrocannabinol (Delta-9-THC).
Section 5. The the cultivation, manufacturing, distribution, sale, possession and use of "Hemp" for
personal, industrial, or commercial use may be regulated, but the number of plants cultivated or the
products derived from manufacturing, shall not be limited or prohibited, by the General Assembly.
Section 6. The the cultivation, manufacturing, distribution, sale, possession and use of "Cannabis" for
personal, industrial, or commercial use may be regulated, but not prohibited, by the General Assembly.
Section 7. All laws which conflict with this amendment are hereby repealed to the extent that they
conflict with this amendment.