Why did the Arkansas AG reject the 2018 ballot title for the Citizens' Redistricting Commission constitutional amendment?

Plain-English summary

David Couch was sponsoring a 2018 constitutional amendment that would have created a seven-member independent Citizens' Redistricting Commission to draw Arkansas's congressional and state legislative districts every ten years. The amendment would have stripped that authority from the existing Board of Apportionment (the Governor, Secretary of State, and Attorney General) and the General Assembly. AG Leslie Rutledge rejected the popular name and ballot title.

The AG's reasoning was practical: voters reading the ballot title alone could not tell what some of the proposal's most important terms actually meant. The amendment required commissioners to be "committed to applying the provisions of this section in an honest, independent, and impartial fashion," and allowed a commissioner to be removed for "substantial neglect of duty" or "gross misconduct in office." Those phrases are subjective, and the proposal did not define how anyone would measure them. The AG also faulted the proposal for failing to clarify, for the second time, ambiguities about who counts as an "immediate family member" and what counts as "Arkansas public office."

This was not the AG's first review of this measure. Footnote 27 references Op. 2018-036, an earlier rejection of the same effort that flagged some of the same problems. The proposal did not make it to the November 2018 ballot.

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.

Arkansas's redistricting framework is still set by Article 8 of the constitution and by the General Assembly for congressional districts. Independent-commission proposals have continued to surface in subsequent cycles. Anyone working on a current Arkansas redistricting initiative should consult current law and current AG opinions, not this 2018 review.

Common questions

What is the Arkansas Board of Apportionment?

Under Article 8 of the Arkansas Constitution, the Board of Apportionment consists of the Governor, the Secretary of State, and the Attorney General. The Board draws state legislative districts every ten years. Couch's proposal would have repealed Article 8 and replaced the Board with an independent citizens' commission.

Why does the AG say "honest, independent, and impartial" is too vague?

Eligibility for office is normally tied to facts that are easy to check, such as whether someone is a registered voter or has lived in the state for a certain number of years. Requiring a "commitment to applying provisions in an honest, independent, and impartial fashion" is a values statement, not a factual qualification. The AG's concern was that voters could not tell from the ballot title how a commissioner's commitment would actually be tested, or by whom, and so the meaning of the eligibility rule was hidden.

What happens to a sponsor after a rejection like this?

The sponsor can revise the measure to address the AG's points and resubmit. Each successive submission can also surface new ambiguities that earlier rounds did not flag, because the AG can identify problems on any review (the AG explained that explicitly). Sponsors often need multiple rounds before they get a certifiable title.

Did the proposal ever make it to the ballot?

This particular Couch redistricting amendment did not qualify for the November 2018 Arkansas ballot. Independent-commission proposals have been part of the broader Arkansas redistricting debate since.

Could the AG just rewrite the title?

The statute lets the AG substitute a clearer title where the measure itself is sound but the title is sloppy. Where the underlying measure has ambiguities (as the AG found here), no substitute title can be honest. Acting as the proponent's drafter would also exceed the AG's statutory role.

Background and statutory framework

Arkansas's initiative-and-referendum process is grounded in Amendment 7 (now codified at Article 5, Section 1 of the Arkansas Constitution). Ark. Code Ann. § 7-9-107 sets out the AG's certification role. The Arkansas Supreme Court's case law treats the ballot title as the primary information source for voters, since most voters do not read the full text of a proposed amendment before voting.

Key principles applied in this opinion:

• A ballot title cannot use technical or value-laden terms that voters would have to guess at without definitions (Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160).
• A ballot title is insufficient if it omits an "essential fact which would give the voter serious ground for reflection" (Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)).
• Where the measure's text is internally inconsistent or ambiguous, no ballot title can be approved (Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)).

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017)
• Ark. Const., art. 8 (Board of Apportionment, the provision the proposal would have repealed)
• Ark. Const., art. 15, § 1 (impeachment standard, cited as a comparison to the proposal's "substantial neglect" and "gross misconduct" terms)
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Op. Att'y Gen. 2018-036 (the earlier rejection of the same measure)

Source

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

Original opinion text

Opinion No. 2018-050
May 7, 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. 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 (I 948). 3 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted). 323 CENTER STREET, SUll E 200 · LITTLE ROCK. ARKANSAS 72201 TELE PH ONE (50 I) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV David A. Couch, Esq. Opinion No. 2018-050 Page 2 Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of a proposed act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to law,"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 constitutional amendment: Popular Name The Arkansas Citizens' Redistricting Commission 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 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 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. David A. Couch, Esq. Opinion No. 2018-050 Page 3 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 or if the Commission is deadlocked by blind selection from a pool of individuals nominated by each comm1ss10ner. No more than four of the members of the Commission shall have any political party affiliation as determined by statewide voter registration and the three members elected by the commissioners 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 have 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 Arkansas 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 has been 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 has been 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 employed or has been compensated in any manner by a national, state, or local political party organization in this state. The David A. Couch, Esq. Opinion No. 2018-050 Page 4 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 15th [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 constitutes [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 of the office. For any commissioner who does not complete his term, the replacement commissioner shall be appointed in the manner of the commissioner's 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 be drawn to discriminate against or favor a political party, incumbent legislator or Member of Congress nor be drawn to augment or dilute the voting strength of a group of individuals speaking the same 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 David A. Couch, Esq. Opinion No. 2018-050 Page 5 Department of Finance and Administration shall submit to the Legislature a recommendation for appropriation for adequate redistricting expenses and that the Legislature shall make the necessary appropriations by majority vote. The Amendment provides that original jurisdiction is vested in the Arkansas Supreme Court to compel the Commission to perform its duties, which is an exception to the State's right to soverign [sic] immunity. 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 "It has long been regarded as axiomatic that the majority of voters, when called upon to vote for or against a proposed measure, will derive their information about its contents from an inspection of the ballot title immediately before exercising the right of suffrage."9 Accordingly, 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. 10 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."11 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 6 Pafford v. 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 19. 8 Mayv. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004). 9 Wilson v. Martin, 2016 Ark. 334, 7, 500 S.W.3d 160, 166 (citing Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)). 10 Becker v. Riviere, 270 Ark. 219, 226, 604 S. W.2d 555, 55 8 (1980) (internal citations omitted). 11 Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2. David A. Couch, Esq. Opinion No. 2018-050 Page 6 that the "omission is significant."12 The Court has also disapproved the use of terms that are "technical and not readily understood by voters."13 Without a definition of such terms in the ballot title, the title may be deemed insufficient.14 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."15 At the same time, however, a ballot title must be brief and concise; 16 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. 17 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. 18 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, 20 and it must convey an intelligible idea of the scope and significance of a proposed change in the law.21 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 12 Id. at 9, 500 S.W.3d at 159. 13 Wilson, 2016 Ark. 334 at *9, 500 S.W.3d at 167. 14 Id., 500 S.W.3d at 167. 15 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). 16 See Ark. Code Ann.§ 7-9-107(b). 17 Bailey, 318 Ark. at284, 884 S.W.2d at 944. 18 Id. at 293, 884 S.W.2d at 946-47. 19 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, 318 Ark. at 249, 884 S.W.2d at 610. 20 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990). 21 Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted). David A. Couch, Esq. Opinion No. 2018-050 Page 7 between the language in the popular name and the ballot title and the language in the measure. 22 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."23 Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without (1) clarification or removal of the ambiguities in the proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal. RESPONSE 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). DISCUSSION I highlight below the more concerning ambiguities in the text of your proposal.

1. Section 4 of your proposal sets out the general makeup of the Commission
   and provides the eligibility (and ineligibility) criteria for each member. Subsection 4(B) lists certain requirements that members of the Commission must meet. Among those requirements are that each member ( 1) be a registered Arkansas voter; (2) who, preceding appointment to the Commission, has been continuously registered for five years or longer as a member of a single political party or as unaffiliated with any political party; (3) who has voted in each of the two statewide general elections preceding appointment; ( 4) "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." (Emphases added). There are at least two problematic aspects here. 22 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). 23 Id. David A. Couch, Esq. Opinion No. 2018-050 Page 8 First, the wording of the emphasized portion suggests that the appointees need only be committed to applying the provisions of Section 4 (which, by a plain reading, is "this section"), but this is far from clear. This creates an ambiguity that must be clarified. Second, and more significantly, your proposal states that they must commit themselves to doing so in a fashion that is "honest, independent[,] and impartial .... " The quoted words are ambiguous, value- laden, and highly subjective terms that could convey vastly different ideas in the minds of different voters. This, in turn, could well lead to substantial voter confusion as to what they are being asked to approve. In addition, while the other eligibility criteria of subsection 4(B) are quantifiable and verifiable-for example, one either is or is not a registered voter, or one either has or has not voted in the previous two general elections, things that can be demonstrably proven-it is wholly unclear from your proposal how one (or even who) could or would determine a commissioner's or an appointee's appropriate level of "commitment" to these subjective values as a condition for eligibility for (and presumably the continued holding of) the position. In my opinion, this aspect of your proposal must be clarified.
2. Section 8 of your proposed measure states that a commissioner can be
   removed by the Governor, with the two-thirds concurrence of the state Senate, for "substantial neglect of duty [and] gross misconduct in office .... " These phrases are also used in your proposed ballot title. In my opinion, these phrases may be vague and ambiguous to voters, specifically with respect to what amounts to "substantial" neglect or "gross" misconduct. Compare this to Article 15, section 1 of the constitution, which makes state officers liable for impeachment for "high crimes and misdemeanors, and gross misconduct in office .... "24 It would seem that "gross misconduct" under your proposal would be something less than a high crime or misdemeanor under Article 15, section 1, although this is unclear. What would rise to the level of "substantial neglect of duty" is equally unclear. It is possible that "substantial neglect of duty" and "gross misconduct in office" are whatever the Governor and Senate say they are. On the other hand, these terms could well amount to what the Court would view as technical, legal terms not readily understood by voters.25 The Court takes an unfavorable view of "technical terms" that lack definition in a ballot title, stating that their use then puts "the voter ... in the position of 24 Ark. Const., art. 15, § 1. 25 See Wilson, supra note 9, 2016 Ark. 334 at *9, 500 S.W.3d at 167. David A. Couch, Esq. Opinion No. 2018-050 Page 9 guessing as to the effect his or her vote would have unless he or she is an expert in the legal field."26 In sum, I believe voters would need to have a greater understanding of these terms so as to have a greater overall awareness of how and why the "citizen" commissioners could be removed. Relatedly, your proposal requires a concurrence of two-thirds of the state Senate for the Governor to remove a commissioner. But your measure is silent, and thus ambiguous, as to whether that two-thirds concurrence must be of the entire membership or of the senators present and voting.
3. You have not addressed the multiple issues regarding the term "immediate
   family member" in your ballot title that I related to you in my previous opinion on this proposed measure.27 I need not repeat here what I wrote regarding those issues. I will simply refer you to my previous opinion as it relates to your use of this term and instruct you to clarify the ambiguities I raised.
4. Similarly, you have not addressed the issue I highlighted regarding the
   definition of "Arkansas public office" in section 11 of your proposed measure. Again, please refer my previous opinion. 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 1s embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate. 26 Id. 27 Op. Att'y Gen. 2018-036. David A. Couch, Esq. Opinion No. 2018-050 Page 10 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. 8 Sincerely,
   ----~ ~· //~k ~~.:--==::::::· - . //
   LESLIE RUTLEDGE
   Attorney General
   Enclosure
   28 Ark. Code Ann.§ 7-9-107(c). Popular Name
   THE ARKANSAS CITIZENS' REDISTRICTING COMMISSION
   AMENDMENT
   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 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 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 OR IF THE COMMISSION IS DEADLOCKED BY BLIND SELECTION FROM A POOL OF INDIVIDUALS NOMINATED BY EACH COMMISSIONER. 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 COMMISSIONERS 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 HAVE 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 ARKANSAS 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 HAS BEEN 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 HAS BEEN 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 EMPLOYED 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 15th THE FOUR MEMBERS SHALL SELECT WITHIN 14 DAYS OF THE INITIAL MEETING BY MAJORITY VOTE THE THREE ADDITIONAL MEMBERS. FIVE MEMBERS OF THE COMMISSION CONSTITUES 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 COMMISSIONER'S 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 BE DRAWN TO DISCRIMINATE AGAINST OR FAVOR A POLITICAL PARTY, INCUMBENT LEGISLATOR OR MEMBER OF CONGRESS AND NOTNOR BE DRAWN TO AUGMENT OR DILUTE THE VOTING STRENGTH OF A GROUP OF INDIVIDUALS SPEAKING THE SAME 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 AMENDMENT PROVIDES THAT ORIGINAL JURISDICTION IS VESTED IN THE ARKANSAS SUPREME COURT TO COMPEL THE COMMISSION TO PERFORM ITS DUTIES, WHICHJ§ MAY BE AN EXCEPTION TO THE STATE'S RIGHT TO SOVERIGN IMMUNITY. 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. Of the seven members of the Commission, no more than two members shall reside in the same congressional district. B. 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 1 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. C. 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. ii. 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:
5. The Federal, State, or local Government.
6. The United States Congress.
7. The General Assembly.
8. 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 2 or currently serves or has previously served in the United States Armed Forces Reserve is not ineligible as a result of such military service, and a person who has been or is an employee of an institution of higher education is not ineligible as a result of such employment. 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. 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 3 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 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 of the years ending in one the following shall occur: A. 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); B. If the four Commission members fail to select three additional members by majority vote as described in Section 6(A) above, then each Commission member shall select a different individual (who 4 shall not be registered with any political party (or have been in the previous 5 years)) who shall become a nominee, the name of each of the four respective nominees shall be placed in a randomized pool, and one nominee's name shall be selected blindly from the pool by each of the following persons in the following order: the Secretary of State, the first- appointed Commission member, and the second-appointed Commission member; C. The appointments of the three additional members 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 commissioners, 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 6 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 areas 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 areas 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 area described pursuant to subsection 12(A) Upon completing that task, the Commission shall begin the preparation of congressional and legislative districting plans. 7 (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 varies 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. 9 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 county or city, that district shall not be considered to divide that county or city. 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 county or city shall be divided more than once. (15) No district shall be drawn to 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 group of individuals speaking the same 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: 10 A. At any time prior 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 11 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. 12 (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. This Section 28 shall be an exception to the State's right to sovereign immunity. 14 (29) In the event any section, subsection, subdivision, paragraph, subparagraph, item, sentence, clause, phrase, or word of this 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. 15