Why did the Arkansas AG reject David Couch's first April 2018 minimum wage ballot title?
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This page answers the general question as of 2018. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
David Couch submitted the first April 26, 2018 draft of an initiated act that would have raised the Arkansas state minimum wage in steps from $8.50 to $9.25 (Jan 2019), $10.00 (Jan 2020), and $11.00 (Jan 2021). The proposed ballot title was short, but AG Leslie Rutledge concluded a number of ambiguities in the underlying measure made it impossible to draft a fair summary, and rejected the popular name and ballot title.
This was the first of several Couch attempts in 2018. By Opinion 2018-053 (May 14), Couch had ballooned the title to 967 words by trying to copy the statutory definitions of "employer" and "employee" verbatim, and the AG rejected that for length. By Opinion 2018-048 (May 4), Couch had added a local-option provision and the AG rejected that for ambiguity and omissions. The 2018 minimum-wage initiative that finally reached Arkansas voters as Issue 5 came from a different draft and was approved.
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 state minimum wage was raised by a different ballot measure approved in November 2018 and reached $11.00 per hour by January 2021 under that measure. Current Arkansas wage law should be checked against the present version of Ark. Code Ann. § 11-4-201 et seq., not this 2018 rejection.
Common questions
How does this draft compare to the version voters approved?
The Couch version reflected here did not reach the 2018 ballot. A different sponsoring effort produced the version that became Issue 5 and was approved by Arkansas voters. The wage steps and exemptions were broadly similar, but the actual ballot title that voters saw came from cleaner drafting.
What does it mean that the AG could not "substitute and certify"?
Section 7-9-107(b) gives the AG the option to fix small ballot-title problems by writing a substitute. But that only works when the underlying measure is sound and only the title needs work. When the measure itself is ambiguous, no substitute title is possible, because the AG cannot describe what the measure does if the measure is unclear. So the entire submission is rejected and bounced back to the sponsor.
Why did Couch keep submitting drafts?
Because Arkansas's initiative system requires the AG's certification of the popular name and ballot title before signature collection can begin. Without certification, the proposal cannot move toward the ballot. Each rejection forces a revision, and the sponsor either keeps working until they get certification or runs out of time before the deadline to qualify for the ballot.
What is the difference between an "initiated act" and a "constitutional amendment"?
An initiated act amends Arkansas statutory law and can be repealed or amended by the General Assembly later. A constitutional amendment changes the Arkansas Constitution itself and is harder to undo. Couch's 2018 minimum wage proposal was an initiated act, not a constitutional amendment, so any later legislative changes would be by ordinary statute.
Did Arkansas's minimum wage actually go up in 2018?
Yes. A different 2018 ballot initiative reached the November 2018 ballot as Issue 5 and Arkansas voters approved it. None of the Couch drafts (this one, 2018-048, or 2018-053) made it to the ballot.
Background and statutory framework
The relevant statutes:
- Ark. Code Ann. § 7-9-107 (the AG's certification authority).
- Ark. Code Ann. § 11-4-203 (statutory definitions of "employer" and "employee" the proposal would have left in place).
- Ark. Code Ann. § 11-4-210 (the state minimum wage statute the proposal would have amended).
The case-law backbone is the same applied throughout the 2018 ballot-title cluster: a ballot title must give voters a fair understanding of the issue (Becker v. Riviere); essential facts cannot be omitted (Bailey v. McCuen); ambiguities in the underlying measure prevent any honest title (Roberts v. Priest).
Citations
- Ark. Code Ann. § 7-9-107 (Supp. 2017)
- Ark. Code Ann. § 11-4-203 (statutory definitions of "employer" and "employee")
- Ark. Code Ann. § 11-4-210 (state minimum wage)
- Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
Source
Original opinion text
Opinion No. 2018-043
April 26, 2018
David A. Couch, Esq.
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
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 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
Section 7-9-107 neither requires nor authorizes this office to make legal
determinations concerning the merits of the proposed act or amendment, or
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 CENTER STREET. SUITE 200 · LITTLE ROCK. ARK/\NSAS 72201
TELEPHO N E (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG .GOV David A. Couch, Esq.
Opinion No. 2018-043
Page 2
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,"4 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 initiated act:
Popular Name
An Act to Increase the Arkansas Minimum Wage
Ballot Title
An Act to amend the Arkansas Code concerning the State minimum
wage; the Act would raise the current State minimum wage from
eight dollars and fifty cents ($8.50) per hour to nine dollars and
twenty-five cents ($9 .25) per hour on January 1, 2019, to ten dollars
($10.00) per hour on January 1, 2020, and to eleven dollars ($11.00)
per hour on January 1, 2021
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
4 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326
Ark. 353, 359, 931S.W.2d119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841S.W.2d139
(1992).
5 As part of my review, however, I may address constitutional concerns for consideration by the
measure's proponents.
6 Pajfordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). David A. Couch, Esq.
Opinion No. 2018-043
Page 3
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
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
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 v. Riviere, 270 Ark. at 226, 604 S.W.2d at 558 (internal citations omitted).
'0 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).
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. David A. Couch, Esq.
Opinion No. 2018-043
Page 4
"free of any misleading tendency whether by amplification, 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 initiated act 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 initiated act
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
It is my opinion, based on the above guidelines established by the Court, that a
number of additions or changes 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).
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. David A. Couch, Esq.
Opinion No. 2018-043
Page 5
DISCUSSION
I highlight below the more concerning ambiguities in the text of your proposal.
- Your ballot title states that your proposal would "amend the Arkansas Code
concerning the State minimum wage" by "rais[ing] the current State
minimum wage .... " I believe that such a bare and general reference to the
increase of the "State minimum wage" may lead to confusion amongst the
voters and may cause them to believe that every hourly wage earner will or
would be eligible to receive a raise in accordance with the terms of your
proposed ballot title. For example, before voting on your proposed
measure, voters would want to be informed as to whom the new minimum
wage act would apply, and in what circumstances it would apply.
Accordingly, the current law and the effects your proposed measure will
have on it must be explained in a manner in which voters will fully
comprehend what they are being asked to consider, and how the changes
will or will not affect them. - Related to the above, the text of your initiated measure refers to
"employers" and "employees." In my opinion, the Court would view the
terms "employers" and "employees" in the context of raising the minimum
wage as "technical terms," and as such the voters should not have to guess
as to their meanings in this context. 23 While those terms are defined in the
"Arkansas Minimum Wage" section of the Code, I believe the Court would
require at a minimum that your ballot title convey an understanding of these
terms as they relate specifically to the minimum-wage portion of the Code.
Otherwise, voters may be misled with respect to the application of your
proposed act.
Similarly, your proposed measure's text requires that the minimum-wage
increases apply "except as otherwise provided in this subchapter." This
exception language is not included in your proposed ballot title. In my
opinion, to be sufficient, your ballot title must include this exception
language, and some explanation regarding what exceptions currently exist,
and whether the proposed act has any effect on those exceptions. Voters
otherwise will not have the ability to make an informed choice between
current and proposed law.
23 See Wilson, supra note 12, 2016 Ark. 334 at *9, 500 S.W.3d at 167. David A. Couch, Esq.
Opinion No. 2018-043
Page 6 - The text of your measure includes the underlining of some, but not all, of
the language of your proposed amended act. Accordingly, there exist some
ambiguities with respect to the text of your proposal. You have labeled
what is under current law subsection (2) as subsection "(2)(A)." Because
the subdivision designation (A) is not underlined in your proposal, this
suggests that Code section 11-4-210 already contains a subsection "(2)(A)."
This is incorrect, and must be clarified. - Related to the foregoing, you have included and labeled subsections
"(2)(A)" and "(3)(A)" in the text of your proposal. To label a subsection as
"(2)(A)" or "(3)(A)" creates the presumption that there exists in current law
or that there will exist in the amended law a subsection "(2)(B)" or
"(3)(B)." But this is not the case under existing law, and does not appear to
be the case based on the text of your proposed initiated act. This must be
clarified so that the voters will be able to make an informed "choice
between retention of the existing law and the substitution of something
new."24
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. 5
Sincerely,
.c::::~.~~:::;~- ~ . //~..;#/~
LESLIE RUTLEDGE
Attorney General
24 Bradley v. Hall, 220 Ark. 925, 927, 251S.W.2d470, 471 (1952).
25 Ark. Code Ann.§ 7-9-107(c). POPULAR NAME
AN ACT TO INCREASE THE ARKANSAS MINIMUM WAGE
BALLOT TITLE
AN ACT TO AMEND THE ARKANSAS CODE CONCERNING THE STATE
MINIMUM WAGE; THE ACT WOULD RAISE THE CURRENT STATE MINIMUM
WAGE FROM EIGHT DOLLARS AND FIFTY CENTS ($8.50) PER HOUR TO NINE
DOLLARS AND TWENTY-FIVE CENTS ($9.25) PER HOUR ON JANUARY 1, 2019, TO
TEN DOLLARS ($10.00) PER HOUR ON JANUARY 1, 2020, AND TO ELEVEN
DOLLARS ($11.00) PER HOUR ON JANUARY 1, 2021
BE IT EN ACTED BY THE PEOPLE OF THE ST ATE OF ARKANSAS:
SECTION 1. Arkansas Code§ 11-4-210(a), concerning the state minimum wage,
is amended to read as follows:
(a)(l) Beginning October 1, 2006, every employer shall pay each of his or her
employees wages at the rate of not less than six dollars and twenty-five cents ($6.25) per
hour except as otherwise provided in this subchapter.
(2)(A) Beginning January 1, 2015, every employer shall pay each of his or her
employees wages at the rate of not less than seven dollars and fifty cents ($7.50) per
hour, beginning January 1, 2016 the rate of not less than eight dollars ($8.00) per hour
and beginning January 1, 2017 the rate of not less than eight dollars and fifty cents
($8.50) per hour except as otherwise provided in this subchapter.
(3)(A) Beginning January 1, 2019, every employer shall pay each of his or her
employees wages at the rate of not less than nine dollars and twenty-five cents ($9.25)
per hour, beginning January 1, 2020 the rate of not less than ten dollars ($10.00) per
hour and beginning January 1, 2021 the rate of not less than eleven dollars ($11.00) per
hour except as otherwise provided in this subchapter.
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