Why did the Arkansas AG reject David Couch's proposed minimum wage ballot title in April 2018?

Plain-English summary

David Couch asked Attorney General Leslie Rutledge to certify a popular name and ballot title for an initiated act raising Arkansas's stated minimum wage from $8.50 to $9.25 in 2019, $10 in 2020, and $11 in 2021. The AG rejected this submission in her April 26, 2018 opinion because the title and proposed text left important questions unclear. She instructed the sponsor to redesign the measure and title.

The proposed title's general reference to raising the “State minimum wage” might lead voters to think every hourly worker would receive a raise. The AG said voters needed to understand whom the existing law covered and when the proposed increases would apply. “Employer” and “employee” had defined meanings in the wage law, but the title did not convey their relevant scope. It also omitted the measure's “except as otherwise provided in this subchapter” language and failed to explain existing exceptions or whether the act would change them.

The text of the measure itself had drafting problems. It underlined some but not all apparently new language, making the proposed changes unclear. It relabeled a current subsection as “(2)(A)” without underlining that change and used “(2)(A)” and “(3)(A)” even though there were no corresponding “(B)” subsections. The AG said these ambiguities prevented her from substituting a fair title.

Currency note

This opinion was issued in 2018 and rejected this particular proposal. Verify current Arkansas wage law and any later ballot measures before relying on the proposed rates or dates.

Common questions

Did the AG object to increasing the minimum wage? No. She said her ballot-title review did not address a measure's merits, philosophy, or ideology. Her objections concerned whether voters could understand the submitted text and its effect on existing law.

Why was “State minimum wage” too general for the title? The AG said it might suggest that every hourly worker would receive the listed increases. She wanted the title to explain which employers and employees the current law covered and how the proposal would affect them.

What exception did the title leave out?
The proposal said the increases would apply “except as otherwise provided in this subchapter.” The AG said the title needed that language and an explanation of the existing exceptions and any effect the act would have on them.

Why did the underlining and subsection labels matter? The measure used underlining inconsistently, so readers could not clearly identify the proposed changes. Its “(2)(A)” and “(3)(A)” labels also suggested corresponding “(B)” provisions that did not appear to exist.

Could the AG write a replacement title?
She said no. Ambiguities in the measure meant she could not tell precisely what a complete and accurate substitute would need to say.

Background and statutory framework

Ark. Code Ann. § 7-9-107 lets the AG certify a popular name and ballot title, substitute and certify language where practicable, or reject a submission that would mislead voters. The opinion applies that process to this proposed change to Ark. Code Ann. § 11-4-210(a). It does not report what happened to any later wage proposal.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017)
• Ark. Code Ann. § 11-4-210(a) (section the proposal would amend)

Source

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

Original opinion text

STATE O F ARKAN SAS
ATTO RN EY G ENERAL
LE SLI E RUT LE DG E

Opinion No. 2018-043

April 26, 2018

David A. Couch, Esq.
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 Wom en '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 CE NTER STREET. SU IT E 200 · L ITT LE ROC K. ARK/\N SAS 72201 TELEPH O N E (5 01) 682-2007 · FA X (501) 682-8084 ARKAN SA SA G .GO V
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Opinion No. 2018-043
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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).
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Opinion No. 2018-043
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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 11 significant." 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.
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Opinion No. 2018-043
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"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.
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DISCUSSION

I highlight below the more concerning ambiguities in the text of your proposal.

1. 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.

2. 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.
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3. 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.

4. 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.