Why did the Arkansas AG reject the Arkansas Cannabis Amendment ballot title submitted by John Wesley Hall in 2018?

Plain-English summary

Attorney John Wesley Hall, Jr. submitted a popular name ("Arkansas Cannabis Amendment") and a multi-section ballot title for a proposed constitutional amendment that would have legalized recreational cannabis in Arkansas, replaced Amendment 98 (the 2016 Arkansas Medical Marijuana Amendment), and set up a regulatory framework under the Alcohol Beverage Control Division and the Arkansas Department of Health.

AG Leslie Rutledge rejected the submission on three threshold grounds:

1. Inadequate disclosure of federal illegality. The proposed ballot title only "indirectly" acknowledged the federal preemption problem with cannabis, invoking the Tenth Amendment. The AG cited Cox v. Martin as a model where a medical-marijuana ballot title that explicitly disclosed continued federal illegality was permitted, and read the Hall submission as falling short of that disclosure.

2. Partisan coloring. Words like "improve" the medical cannabis program, "simplified" method of purchasing, and "greater number of qualifying conditions" took the proposal's side instead of describing it neutrally. Christian Civic Action Committee v. McCuen and a long line of Arkansas Supreme Court cases hold that ballot titles must be free of partisan coloring.

3. Enacting-clause defect. The proposed text was prefaced with "The People of the State of Arkansas enact . . . ." That phrasing is appropriate for an initiated act, not a constitutional amendment. United States Term Limits, Inc. v. Hill construes Amendment 7 (now Ark. Const. art. 5, § 1) to require enacting clauses only for "bills" initiated by the people, not for constitutional amendments. Including the enacting clause introduced ambiguity about whether voters were being asked to approve a bill or an amendment.

The AG explained that her statutory role under Ark. Code Ann. § 7-9-107 is to certify, substitute and certify, or reject. Drafting a complying ballot title was not part of her role. The threshold defects she identified made it impossible to substitute a workable title without first asking the sponsor to fix the underlying measure.

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.

Common questions

Q: What is the Arkansas AG's role in reviewing ballot titles?
A: Under Ark. Code Ann. § 7-9-107, the AG reviews popular names and ballot titles for proposed initiated measures and may (1) certify them as is, (2) substitute and certify a more suitable version if practicable, or (3) reject the entire submission if the ballot title or the nature of the issue is presented in a way that would be misleading to voters.

Q: What is "partisan coloring"?
A: Language that lends positive or negative spin to the merits of a proposal rather than describing it neutrally. The Arkansas Supreme Court has flagged words and phrases that "create[] a fatally misleading tendency" or that "give[] the voter only the impression that the proponents of the proposed amendment wish to convey." Words like "improve" and "simplify" telegraph approval of the measure rather than impartially describing what it does.

Q: Why did the federal-illegality disclosure matter?
A: Cannabis remains a federally controlled substance. The AG took the position that this fact is essential to a voter's understanding of what they are choosing. Cox v. Martin declined to reject a 2012 medical-marijuana ballot title because that title's first sentence explicitly disclosed continued federal illegality. Hall's 2018 title only nodded at the issue through a Tenth Amendment invocation, which the AG said deemphasized the preemption point.

Q: What is an enacting clause and why did its presence here matter?
A: An enacting clause is the formal phrase that begins a piece of legislation, such as "Be it enacted by the General Assembly . . . ." Amendment 7 (Ark. Const. art. 5, § 1) requires enacting clauses for initiated bills, but constitutional amendments do not need them. Including one in a constitutional amendment proposal makes it ambiguous whether voters are being asked to enact a statute or amend the constitution.

Q: Could the AG just rewrite the title?
A: Section 7-9-107 lets the AG substitute and certify a more suitable title if practicable. But the AG explained that the statute does not contemplate her generating a title from scratch when the submission is wholly deficient, and does not let her rewrite the underlying measure to make a title work. Crafting the measure and the title in compliant form is the sponsor's job.

Q: What did the proposed amendment include?
A: The submission was an extensive measure that would have legalized cannabis for adults 21 and over, repealed Amendment 98 while grandfathering existing licensees and patient cards, set up regulatory and tax structures through the ABC and ADH, listed dozens of qualifying medical conditions, allowed home cultivation, freed people incarcerated for small-quantity cannabis offenses, and required a three-fourths legislative supermajority for most changes.

Q: Was this Hall's first attempt?
A: No. The opinion references "your previous, similar submissions" and cites Op. Att'y Gen. 2017-126, an earlier rejection. The pattern suggests the sponsor had been iterating on similar text without addressing the AG's recurring objections.

Background and statutory framework

Arkansas's initiative and referendum machinery is set out in Amendment 7 (now codified at Ark. Const. art. 5, § 1). The popular-name-and-ballot-title review process is codified at Ark. Code Ann. § 7-9-107.

The Arkansas Supreme Court has built a deep body of doctrine around what makes a ballot title sufficient. The recurring tests are: an impartial summary that gives the voter a fair understanding of the issues (Becker v. Riviere); enough information to support a "reasoned decision in the voting booth" (Lange v. Martin); plain-language definitions of technical terms (Wilson v. Martin); disclosure of essential facts that would give voters serious ground for reflection (Bailey v. McCuen); brevity respecting the five-minute voting-booth time limit in Ark. Code Ann. § 7-5-309; and freedom from misleading tendency, including partisan coloring (Christian Civic Action Committee v. McCuen).

If the underlying measure's text is itself confusing or internally inconsistent, that confusion can defeat any attempt to write a workable title (Roberts v. Priest). That was part of the AG's framing here: the submission's structural problems, like the misplaced enacting clause, prevented her from writing a clean title even if the partisan-coloring issues were fixed.

Citations and references

Constitutional and statutory provisions:

• Ark. Const. art. 5, § 1 (Amendment 7 initiative and referendum)
• Ark. Const. amend. 98 (Arkansas Medical Marijuana Amendment of 2016)
• Ark. Code Ann. § 7-9-107 (AG review of popular name and ballot title)
• Ark. Code Ann. § 7-9-107(b) (brevity requirement)
• Ark. Code Ann. § 7-9-107(c) (rejection authority)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth limit)

Cases:

• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1948)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Cox v. Martin, 2012 Ark. 352, 423 S.W.3d 75
• United States Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994)
• Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952)
• Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982)

Prior AG opinions referenced:

• Op. Att'y Gen. 2017-016 (enacting-clause discussion)
• Op. Att'y Gen. 2017-126 (prior similar Hall submission)

Source

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

Original opinion text

Opinion No. 2018-076
June 22, 2018

Mr. John Wesley Hall, Jr., Esq.
1202 Main Street, Suite 210
Little Rock, AR 72202

Dear Mr. Hall:

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 I 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. 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. In this way, voters will have a fair understanding of the issues presented by reference to the ballot title alone.

It follows from my duty to reject misleading submissions that any ballot title submitted for review should represent the sponsor's attempt to summarize his proposed amendment or act in a non-misleading fashion. At the time they are submitted to my office under section 7-9-107, the popular name and ballot title for proposed constitutional amendments and acts "should be complete enough to convey an intelligible idea of the scope and import of the proposal." And while I am authorized to substitute and certify a ballot title that is more suitable (in terms of affording voters a fair understanding of the issues presented), section 7-9-107 does not contemplate that I generate a ballot title when the ballot title submitted is wholly deficient. Nor does the statute require that I modify the proposed measure itself in order to then summarize the measure's text in a suitable ballot title. Crafting the measure's text and accurately summarizing that text in a ballot title are the sponsor's responsibility prior to submission.

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
Arkansas Cannabis Amendment

Ballot Title
A constitutional amendment:
To make possession and growth of cannabis (marijuana) for personal use by adults legal under state and local law, despite the statutory prohibition in federal law, because this amendment is implemented by the People of Arkansas under the Tenth Amendment to the U.S. Constitution.

In order to improve the medical cannabis program, Repeal Amendment 98, the Arkansas Medical Marijuana Amendment of 2016, and to replace Amendment 98 with a simplified method of purchasing cannabis at the same tax rate as any other pharmaceutical drug, allowing a greater number of qualifying conditions and allowing patients to purchase at any dispensary. To allow minors with a qualifying medical condition the right to use cannabis and to assign a designated caregiver to purchase and administer cannabis to the minor.

To allow the sale of cannabis (marijuana) to adults (persons 21 years of age or older) for personal use; to allow the personal and commercial cultivation, possession, and use of cannabis by adults; to permit the taxation of revenue derived from commercial cannabis facilities; to permit the promulgation of administrative rules and regulations for commercial sales and production and personal possession and production through the Alcohol Beverage Control Division of the Department of Finance and Administration [sic]

To allow adults possession of up to four ounces of cannabis in one's own home or on their person for personal use as a state constitutional right as long as minors (those under 21) do not possess or have access to it. To allow adults home cultivation of up to 6 mature plants and 6 seedlings.

Any person or entity which has a Cannabis Establishment license under Amendment 98 shall continue to exist and shall be recognized by the ABC and may continue operating with their current license until its expiration date and will be eligible for renewal under the ABC rules; shall continue to serve medical cannabis patients, but also provide sales for adult use.

Any current medical cannabis card issued under Amendment 98 will continue to be in effect until the original expiration date.

Individuals may petition to initiate a local ordinance to provide for the number of cannabis establishments allowed within a municipality or county or to completely prohibit cannabis establishments within a municipality or county.

To require the Arkansas Alcohol Beverage Control Division to develop and publish rules and regulations for all cannabis businesses and to issue licenses to all cannabis establishments.

To require the Arkansas Department of Health to develop and publish rules and regulations for medical cannabis patient cards.

To distribute state sales tax for the sale of cannabis as follows: 40% for public education, pre-K-12; 15% for maintenance and repairs to roads and bridges; 15% for implementation, administration, and enforcement of this Amendment; 10% for drug rehabilitation efforts by grants or direct state expenditures; 10% for salaries and support of deputy prosecutors; and 10% for salaries and support of public defenders.

To release those incarcerated in Arkansas prisons or jails, if any, for cannabis charges of possession of 16 ounces or less or possession or cultivation of six or fewer cannabis plants, and to seal their records, and to seal the records of any persons who have served their sentence and been released for charges of possession of 16 ounces or less or possession or cultivation of six or fewer plants.

This Amendment shall be broadly construed to accomplish its intent, and, where possible, it is self-executing.

GUIDELINES

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

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

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." At the same time, however, a ballot title must be brief and concise; otherwise voters could run afoul of the statutory five-minute limit in voting booths when other voters are waiting in line. 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. The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

Furthermore, the Court has confirmed that a ballot title cannot be approved if the text of the proposed measure itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the measure. 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." 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

My statutory duty is to certify, substitute and certify, or reject the entire proposal submitted. Your submission has several fundamental flaws that require me to reject the ballot title, popular name, and proposed measure as drafted.

As an initial matter, your proposed ballot title fails to adequately inform voters that marijuana use, possession, and distribution remain illegal as a matter of preemptive federal law. I believe this omission is significant. The ballot title only indirectly acknowledges federal law. Invoking the Tenth Amendment deemphasizes the federal law preemption and potentially misleads voters.

Also, according to your proposed ballot title, you are seeking to amend the Arkansas Constitution. However, the text of the measure is prefaced with the following statement, which appears to be an enacting clause: "The People of the State of Arkansas enact . . . ." While Article 5, section 1 of the Arkansas Constitution requires the inclusion of an enacting clause for "bills" initiated by the people (that is, proposed initiated acts), there is no such requirement for constitutional amendments so initiated. The inclusion of an enacting clause for a proposed constitutional amendment makes the proposal ambiguous as to what the voters are being asked to consider, a bill or a constitutional amendment. This could be confusing to the voters.

Additionally, and more significantly, the ballot title you have submitted is partisan and it fails to provide sufficient information about the choice(s) voters are called upon to make. The ballot title states that the proposed constitutional amendment would repeal Amendment 98 (the Arkansas Medical Marijuana Amendment of 2016, hereinafter "AMMA") "[i]n order to improve the medical cannabis program;" that it would replace the AMMA "with a simplified method of purchasing cannabis at the same tax rate as any other pharmaceutical drug;" and that it would "allow[] a greater number of qualifying conditions . . . ." (Emphases added). The words "improve" and "simplified" plainly imply that adoption of the proposal would enhance the law. But the quality of the proposal is a question for the voters, one on which the ballot title may not take a partisan stance. And stating that the proposed amendment would allow a "greater number of qualifying conditions" lends partisan coloring to the merits, in addition to possibly being misleading, given the procedure under the AMMA for the Department of Health to add medical conditions or treatments to the list of qualifying medical conditions.

The language excerpted above is the only information in your proposed ballot title concerning the AMMA and the choice voters are asked to make between your proposed amendment and existing law. The language is partisan and potentially misleading. In my opinion, the ballot title is rendered wholly deficient as a consequence.

As I have explained in addressing one of your previous, similar submissions, the Arkansas Supreme Court has elaborated on the duty to describe the changes in law a proposal is to make:

For the elector, in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving.

The Court has held that "a ballot title is not insufficient merely because it fails to reflect the current state of the law." But a ballot title must give the voters a clear understanding of the "extent and import" of the proposal, particularly when they are being asked to amend the constitution:

If the voter knows the extent and import of such a proposal, it is the voter's decision, not ours, as to the wisdom of the proposal. But at the same time the voters have placed on this court the duty and responsibility to see that when they vote that change, or decline to vote that change, especially one to alter their constitution, they are allowed to make an intelligent choice, fully aware of the consequences of their vote.

The ballot title you have proposed fails entirely in this respect. It fails to adequately convey the proposed change in law so that the voters will have a fair understanding of the issue(s).

CONCLUSION

The Arkansas Constitution does not charge my office with any role in drafting initiated constitutional amendments or acts. My duty in reviewing submissions under section 7-9-107 is to the electorate as a whole. I cannot advise or advocate for individual sponsors. Sponsors must make the necessary efforts to ensure that their proposed measures, popular names, and ballot titles have been thoroughly vetted for compliance with the high standards established by the Court prior to their submission to my office.

Your submission falls short of the minimum criteria under section 7-9-107. My office attempts in the usual course to identify problems in the text of a proposed measure that prevent certification of a satisfactory ballot title. However, I am unable in light of the above threshold deficiencies to proceed with any further review of this submission. These deficiencies are not necessarily all of the issues preventing certification of a popular name and ballot title for your proposed measure. But they are sufficiently serious that I must reject your entire ballot title, popular name, and proposed measure.

Sincerely,

Leslie Rutledge
Attorney General

Enclosure (full text of the proposed Arkansas Cannabis Adult and Medical Use Amendment, including sections on definitions, repeal of Amendment 98, ABC and ADH licensing and regulation, qualifying medical conditions, taxation, the cannabis regulation fund, sealing of prior cannabis convictions, contract enforceability, reciprocity, construction, supermajority change requirements, and effective-date provisions).