Why was the proposed Arkansas Recreational Marijuana Amendment of 2020 ballot title rejected by the Attorney General?

Plain-English summary

Under Ark. Code Ann. section 7-9-107, the Attorney General reviews proposed popular names and ballot titles for initiated constitutional amendments and either certifies, substitutes and certifies, or rejects the submission. The AG cannot rule on the merits; the question is only whether the ballot title would mislead voters.

A sponsor identified only as "Avalon" submitted "The Arkansas Recreational Marijuana Amendment of 2020." The text would have legalized adult cultivation, sale, transport, and use of marijuana under state law; created Class A and Class B licenses; capped license fees; allowed adults to possess up to four ounces, six plants, and unlimited seeds; permitted limited sales to nonresidents; expunged some prior marijuana convictions; imposed an 8% excise plus a 5% local tax; required 1500-foot buffers from schools and churches; and disclaimed effect on existing employer drug policies, DUI laws, and the Arkansas Medical Marijuana Amendment of 2016.

Attorney General Leslie Rutledge rejected the entire submission. The AG identified the proposal as "essentially an amalgam of multiple earlier recreational-marijuana submissions to this office that have been rejected as fundamentally deficient," referencing Op. Att'y Gen. 2018-046 and prior opinions cited there. The features added were not enough to materially distinguish it. Because of internal inconsistency in the proposal itself, the AG concluded that any ballot title would necessarily be misleading and that section 7-9-107 does not authorize the AG to rewrite or modify a sponsor's measure. Rejecting the submission was therefore the only path open.

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's initiated-amendment process runs through section 7-9-107. The AG has three choices when a submission arrives: certify, substitute and certify (if practicable), or reject. The grounds for rejection in section 7-9-107(c) is that the ballot title or the nature of the issue is presented in a manner that the ballot title would be misleading.

The Arkansas Supreme Court has elaborated the standard in a long line of cases. The popular name is a useful legislative device that need not contain detailed information but must not give partisan coloring. The ballot title must give voters a fair, intelligible, impartial summary that lets them make a "reasoned decision in the voting booth," per Lange v. Martin. Bailey v. McCuen requires disclosure of any "essential fact which would give the voter serious ground for reflection." The title must be free of misleading tendency by amplification, omission, or fallacy, and must convey an intelligible idea of the scope of the proposed change. The title must also be brief enough to be read inside the five-minute voting-booth limit set by section 7-5-309.

Roberts v. Priest is the case the AG leans on for proposals whose internal inconsistencies bleed through into the ballot title. When the measure itself contains contradictions or ambiguities, no ballot title can faithfully describe it; the AG cannot do the sponsor's drafting work for them.

Why the proposal was rejected

The AG's rejection rested on three pillars. First, the proposal was a near-duplicate of earlier submissions already rejected as fundamentally deficient. The AG referenced Op. Att'y Gen. 2018-046 and the chain of prior opinions discussed there. Second, the AG framed the proposal as a "convoluted state-wide decriminalization scheme that purports to include regulatory oversight" with internal inconsistencies that no ballot title could resolve. Third, the AG reaffirmed the structural limit in section 7-9-107 read together with section 7-9-106 and section 25-16-701: the AG is not authorized to rewrite a measure or to draft new ballot title language when the underlying proposal cannot support a sufficient title.

That last point matters. The AG has authority to substitute a more suitable ballot title under section 7-9-107, but only if the proposal itself is coherent enough to be summarized. When the proposal is "inherently flawed and fundamentally ambiguous," the substitute-and-certify path is also closed, leaving rejection.

Common questions

Was the AG saying recreational marijuana cannot be legalized in Arkansas by initiative?

No. The AG made clear at the outset that the certification decision was not a comment on the merits, that section 7-9-107 does not let the AG weigh policy. The rejection went to drafting, not to whether marijuana legalization could ever appear on the ballot.

Could the sponsor have fixed the proposal?

The opinion did not list every flaw. The AG noted that the deficiencies it identified "are not necessarily all the issues preventing certification," meaning even fixing the named problems would not guarantee certification. A sponsor would have needed to redraft the underlying measure to remove the internal inconsistencies before resubmitting.

What kind of internal inconsistency was the AG worried about?

The AG did not enumerate them in this opinion, instead pointing to prior rejected submissions whose problems carried over. The proposal mixed full state-level legalization, a regulatory licensing regime, criminal penalty schedules, expungement, taxation provisions, and disclaimers about DUI and the existing medical-marijuana scheme. Reconciling those moving parts in a brief ballot title was the gating problem.

What was different about this submission compared to earlier recreational-marijuana submissions?

The sponsor added some features, but the AG found the differences immaterial for purposes of section 7-9-107 review. The amalgam character of the text, drawing from previously rejected drafts, kept the same structural problems in place.

Could the AG have rewritten the ballot title to make it work?

No. Section 7-9-107 lets the AG substitute a ballot title only when a workable summary is possible. When the proposal itself is the source of the ambiguity, the AG concluded a substitute would still be misleading, and the office is not authorized to rewrite the measure.

Citations

Ark. Code Ann. sections 7-5-309, 7-9-106, 7-9-107, 7-9-107(b), 7-9-107(c), 25-16-701; Op. Att'y Gen. 2018-046; Op. Att'y Gen. 2017-032; Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984); 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).

Source

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

Original opinion text

Opinion No. 2018-100
August 29, 2018

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Avalon
50 Crest Street
West Fork, AR 72774

Dear Avalon:

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.

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 Recreational Marijuana Amendment of 2020

Ballot Title

An Amendment to the Arkansas Constitution that would make the cultivation, production, distribution, transport, sale, and use of marijuana for adult recreational purposes lawful under State law; recognizing that the listed activities with respect to marijuana is [sic] prohibited under federal law; under this Amendment the State will regulate the cultivation and production of recreational marijuana sold in the State, issuing two types of recreational marijuana licenses to any adult or business who are [sic] a resident of the State to cultivate, manufacture, and sell recreational marijuana plants and products produced therefrom; a Class A license [sic] which would permit the cultivation, transport, and sale of recreational marijuana plants, and an unlimited quantity of seed to adult residents or Class A or B license holders; a Class B license would permit the cultivation, production, transport, and sale of recreational marijuana plants, an unlimited quantity of seeds, and permits the production and sale of products produced from the plant; providing that a Class A license cost shall not exceed $250 a year per license holder, and a Class B license cost shall not exceed $500 a year per license holder; providing that the State may adopt additional rules, regulations, and penalties to prevent the use of recreational marijuana by minors, to increase product safety, and consumer awareness; under this Amendment any adult who is a resident of this State shall have the right to cultivate, possess, transport, and purchase up to 6 recreational marijuana plants out of public view, may purchase up to 4 ounces of smokeable or vaporizable recreational marijuana a day, and may possess an unlimited quantity of seeds and products produced from the plant, and may distribute up to 6 recreational marijuana plants, seeds, and product produced from the plant to any adult resident without receiving payment in return; non resident [sic] adults shall have the right to possess and purchase up to one ounce of smokable [sic] or vaporizable recreational marijuana a day, and up to 72 ounces of recreational marijuana in the form of food or drink a day; under this Amendment [sic] any person serving incarceration, probation, or parole for violating the Arkansas Uniformed Controlled Substances Act as it pertains to marijuana, whose current and only conviction was for a marijuana related offense [sic] shall be released and all criminal records shall be expunged of such convictions that occured [sic] prior to the Amendments [sic] effective date of November 4th, 2020; under this Amendment [sic] the sales of recreational marijuana will be subject to existing sales tax, and an additional 8% recreational marijuana excise tax, and a local sales tax of 5% [sic] and the General Assembly shall determine the allocation of the tax revenue received by the State from the sales; under this Amendment [sic] recreational marijuana plants and products produced therefrom can only be sold in a location that is 1500 feet away or more from a public or private school, church or daycare; under this Amendment [sic] the quantity of recreational marijuana products that can be sold per day to buyers presenting an out of state proof of age is limited; under this Amendment [sic] the recreational marijuana that is sold in the form of food or drink (a) shall [sic] not be designed to appeal to children; (b) shall not exceed 10 milligrams of THC per serving, and (c) labeling or packaging must provide product information; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under State law; providing that penalties adopted under the Amendment shall not exceed (a) a fine of two-hundred dollars ($200.00) for a first time offense, (b) a Class C misdemeanor charge for second time offense with the right to obtain a Class A or B recreational marijuana license suspended for one year, and (c) a Class B misdemeanor charges [sic] for subsequent offenses with the right to obtain a Class A or B recreational marijuana license suspended for 5 years; and providing that the Amendment (a) shall not be construed to affect the ability of employers to have policies restricting the use of recreational marijuana by employees, (b) shall not be construed to permit driving under the influence of marijuana, (c) shall not be construed to permit the transfer of recreational marijuana to anyone under 18 years of age, (d) nor permit anyone under 18 years of age to cultivate, produce, sell, distribute, transport, possess, or use recreational marijuana, and (e) shall not be construed to limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity in regards to medical marijuana pursuant to the Arkansas Medical Marijuana Amendment of 2016.

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 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 submission is essentially an amalgam of multiple earlier recreational-marijuana submissions to this office that have been rejected as fundamentally deficient. It involves a convoluted state-wide decriminalization scheme that purports to include regulatory oversight. You have added a few features, but for purposes of my review under section 7-9-107, the differences do not materially distinguish the proposal from these earlier submissions. Any ballot title for the measure will necessarily be misleading because the scheme cannot be summarized in an intelligent, impartial, and honest manner. In sum, the proposal is inherently flawed and fundamentally ambiguous to the extent that it precludes the crafting of a ballot title that will satisfy the Arkansas Supreme Court's test for ballot title sufficiency.

CONCLUSION

Section 7-9-106 does not authorize or require me to modify the proposed measure itself, in order then summarize its text in a suitable ballot title. My office is not charged with any role in drafting initiated amendments or acts. Instead, crafting and accurately summarizing the measure are the sponsor's responsibilities prior to submission. Sponsors must vet their proposed measures, popular names, and ballot titles to ensure they meet the criteria established by section 7-9-107 and the Arkansas Supreme Court. Your submission falls short of these criteria. I must therefore reject your ballot title, popular name, and proposed measure.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure

(Full text of the proposed "Arkansas Recreational Marijuana Amendment of 2020" omitted here for length. See linked landing page above for the complete enclosure.)