Did the Arkansas AG approve the ballot title for a 2018 initiated constitutional amendment that would replace the Board of Apportionment with a Citizens' Redistricting Commission?

Plain-English summary

Skip Cook, on behalf of Arkansans for Governmental Reform, submitted a proposed initiated constitutional amendment titled "The Arkansas Citizens' Redistricting Amendment" to the Attorney General for certification of its popular name and ballot title under Ark. Code Ann. § 7-9-107.

The amendment would have done five major things:

1. Replaced the Board of Apportionment with a seven-member Citizens' Redistricting Commission. The existing Board of Apportionment, established in Article 8 of the Arkansas Constitution, consists of the Governor, the Secretary of State, and the Attorney General. The proposal would repeal Article 8 and create a seven-person citizen commission instead.
2. Moved congressional redistricting authority away from the General Assembly. The proposal repealed Ark. Code §§ 7-2-101 to -105 and gave the new Commission jurisdiction over both state legislative and U.S. congressional district lines.
3. Set up a non-partisan selection process. The Majority and Minority Leaders of each chamber would appoint one commissioner each (four total), and those four would select three more by majority vote, or by blind selection from a candidate pool if deadlocked. No more than four members could share any party affiliation, and the three additional commissioners selected by the first four had to be unaffiliated.
4. Imposed eligibility restrictions on commissioners. Members had to have been registered Arkansas voters for at least five years and to have voted in each of the last two statewide general elections. People who currently held, or had held within the past five years, statewide elective or appointed positions, congressional seats, General Assembly seats, or city or county offices were ineligible. The same five-year disqualification applied to immediate family members.
5. Established judicial review and appropriations mechanics. The Arkansas Supreme Court would have original jurisdiction to compel the Commission to perform its duties (an exception to sovereign immunity), and the Department of Finance and Administration would submit budget recommendations to the legislature for the Commission's expenses.

Attorney General Leslie Rutledge certified the popular name and ballot title as submitted. She did not endorse or oppose the amendment's policy. Her review under section 7-9-107 is limited to whether the popular name and ballot title would honestly, intelligibly, and impartially inform voters of what they were being asked to approve. The submitted text accomplished that.

She added a "cautionary note" though: the subject matter (apportionment and redistricting) is highly significant, the proposal is complex, and "experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot title challenge." Any ambiguity in the text could expose the certification to a Supreme Court challenge after the petition was filed. Whether the amendment ultimately reached the ballot would depend on signature collection (10% of legal voters required for a constitutional amendment) and any litigation challenging the title.

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.

Background and statutory framework

Arkansas Code Annotated § 7-9-107 gives the AG three options when reviewing a submitted ballot title: certify, substitute and certify, or reject the entire submission. The authority to reject is triggered 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 AG's review is not on the merits of the proposed measure. As the AG noted at the start of every certification opinion: "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." Section 7-9-107 authorizes only a determination of whether the popular name and ballot title fairly summarize the proposal.

The Arkansas Supreme Court has developed a substantial body of law on what makes a ballot title sufficient. The principles applied here:

• The popular name is "primarily a useful legislative device" (Pafford v. Hall, 217 Ark. 734) but cannot be "misleading or give partisan coloring."
• The ballot title must give voters a "fair understanding of the issues presented" (Becker v. Riviere, 270 Ark. 219).
• A ballot title must "adequately inform" voters so they can make a "reasoned decision in the voting booth" (Lange v. Martin, 2016 Ark. 337).
• Technical terms must be defined or avoided (Wilson v. Martin, 2016 Ark. 334).
• Essential facts that would give voters "serious ground for reflection" must be disclosed (Bailey v. McCuen, 318 Ark. 277).
• The title must be "free of any misleading tendency whether by amplification, omission, or fallacy" and "not be tinged with partisan coloring" (Bailey, 318 Ark. at 284).
• Internal inconsistencies between the proposed measure's text and the ballot title can be fatal (Roberts v. Priest, 341 Ark. 813).

Sponsors must also distribute petitions with the statutorily required canvasser instructions (section 7-9-108) and avoid "petition fraud" under section 5-55-601(b) (Class A misdemeanor).

All cases cited above are Arkansas Supreme Court decisions (the "Ark." reporter), not federal cases.

Why the AG flagged length and complexity

The amendment's substance ran several pages. Major redistricting reforms typically do, because they have to spell out commission selection procedures, eligibility criteria, district criteria, judicial review, and budget mechanics. The Arkansas Supreme Court has repeatedly invalidated ballot titles for lengthy initiated measures on the ground that some essential feature was either omitted from or inconsistent with the title.

The AG's cautionary note acknowledged that, even though the title looked sufficient at certification, opponents could later challenge it before the Supreme Court if any portion of the proposal was reasonably arguable to be unclear or omitted. The certification was no guarantee of judicial sufficiency.

Common questions

Did this amendment make it to the 2018 ballot?

The opinion did not address that. Petition signature requirements are 10% of legal voters for a constitutional amendment, with collection deadlines. Whether Arkansans for Governmental Reform collected enough signatures, and whether any litigation followed certification, would have determined the amendment's fate.

Does AG certification mean the amendment is constitutional?

No. The AG explicitly does not analyze the merits or constitutional validity of the underlying proposal. Certification only addresses whether the title and popular name fairly describe what the proposal does.

What if a voter felt the title was misleading?

Voters or other interested parties could challenge the certification before the Arkansas Supreme Court. The Court has original jurisdiction over such challenges and has invalidated ballot titles for omissions, partisan coloring, or internal inconsistencies. The cases listed (Wilson, Lange, Bailey, Becker, Crochet) are examples of titles invalidated despite AG certification.

What was the existing Board of Apportionment doing that prompted the proposal?

The proposal text explains that Article 8 currently vests state legislative redistricting in a board consisting of the Governor, Secretary of State, and Attorney General. Critics of the existing structure had long argued that this elected-officer board produced partisan results. The proposal sought a non-partisan citizen commission instead, paralleling reforms in California, Arizona, and other states.

Why is the Citizens' Redistricting Commission given exclusive jurisdiction?

The proposal centralized both state legislative and congressional redistricting in the new Commission. It repealed both Article 8 (state legislative) and Ark. Code §§ 7-2-101 to -105 (congressional districts under General Assembly authority). The supremacy of the Commission was meant to eliminate the legislative-versus-executive tug-of-war over district lines.

Citations

Ark. Code Ann. §§ 7-9-107, (b), (c); 7-9-108; 7-5-309; 5-55-601(b); 7-2-101 to -105; Ark. Const. art. 8; 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); 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); Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160; Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994); Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154; Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996); Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990); Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000); Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000); Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

Source

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

Original opinion text

Full opinion text unavailable from the official source. See the linked landing page above for the complete text, including the lengthy verbatim ballot title and the canvasser instructions enclosed under Ark. Code Ann. § 7-9-108.

The opinion's request, response, and guidelines sections are reproduced below; the full ballot-title text and full canvasser-instruction enclosure run to several additional pages on the original PDF.

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2018-086
July 25, 2018
Skip Cook
Arkansans for Governmental Reform
10705 Paul Eells Drive, Suite #6
North Little Rock, AR 72113
Dear Mr. Cook:
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.

Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the 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," this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. 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 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 affiliation as determined by statewide voter registration and the three member 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. [The full ballot title continues on the original document, addressing commission procedures, redistricting standards, judicial review, and appropriations; see the landing page or PDF for the complete text.]

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.

"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." 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. 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. Yet the title 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 has 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
Your proposed popular name and ballot title are certified as submitted. I believe a cautionary note is warranted, however, in light of the significance of the subject matter undertaken — apportionment and legislative and congressional redistricting — and the complexity and far-reaching effects of this proposal. You should be aware that experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot title challenge. Any ambiguity in the text of a measure could lead to a successful challenge.

Pursuant to Ark. Code Ann. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and of the associated penalties for violations. Enclosed herewith are instructions that should be incorporated in your petition prior to circulation.

LESLIE RUTLEDGE
Attorney General

Enclosures