Why did the Arkansas Attorney General reject the Natural Resource Cannabis Amendment ballot title in 2018?

Plain-English summary

In October 2018, sponsor Clair Danner submitted a proposed constitutional amendment titled the "Natural Resource Cannabis Amendment" and asked Attorney General Leslie Rutledge to certify its popular name and ballot title under Ark. Code Ann. § 7-9-107. The proposal sought to legalize the cannabis plant in Arkansas for recreational, industrial, commercial, personal, and medical use, set up a state Bureau of Cannabis/Marijuana Control and a Cannabis/Marijuana Control Board, impose a 5% wholesale excise tax with the first $30 million per year going to public schools, release and exonerate non-violent marijuana offenders, and distribute tax revenue across nine state agencies and a "Community Reinvestment Fund."

The AG rejected the submission. The opinion told the sponsor she had submitted essentially the same measure the AG had already rejected in Opinion 2017-120 the previous November, with added language about banking, depository institutions, and business services. The earlier rejection flagged the measure as too long, too dense, and impossible to summarize within the brevity that ballot titles are required to maintain. The new submission made those problems worse rather than better. The AG also noted that the ballot title was "inherently misleading" because it suggested a state constitutional amendment could negate or alter federal law, which the U.S. Constitution's Supremacy Clause does not permit.

Under § 7-9-107, the AG had three options: certify, substitute and certify, or reject. The AG concluded that no substitute ballot title could honestly summarize a proposal whose own length and density made it impractical for a voter to absorb in the few minutes available in a voting booth. So the AG chose rejection.

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

Ark. Code Ann. § 7-9-107 directs the Attorney General to review every popular name and ballot title submitted for an initiated measure before circulation. The AG can certify, substitute and certify, or reject 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 five-minute voting-booth time limit codified at Ark. Code Ann. § 7-5-309 sits behind the ballot-title brevity requirement: a title that takes longer than that to read is not a workable ballot title in practice.

The Arkansas Supreme Court has held that "at some point, length and complexity alone might militate against a voter's ability to form an intelligent opinion about the issue at hand." See Walker v. Priest, 342 Ark. 410, 29 S.W.3d 657 (2000). The AG had cited that holding when rejecting the 2017 version of the same proposal in Opinion 2017-120. The 2018 resubmission did not address the length problem; it added more text, including provisions on cannabis banking and depository institutions, expanding the proposal further.

Section 7-9-107 does not let the AG modify the underlying measure to make it summarizable. That would be private-practice lawyering, which Ark. Code Ann. § 25-16-701 prohibits. So when a measure's text precludes a workable ballot title, the only option is rejection.

Common questions

What was wrong with the ballot title beyond its length?
Two things. First, the ballot title told voters the amendment would "abrogate" federal law and end "federal raids," which the AG read as inherently misleading because a state constitutional amendment cannot override federal drug law. Second, the title and the underlying text were full of overlapping and partially conflicting provisions, including a clause asserting Tenth Amendment authority and a clause declaring federal law "abrogated," which the AG said no honest summary could capture in a brief title.

Did the AG say cannabis legalization could not be put on the Arkansas ballot?
No. The opinion did not address the merits of cannabis legalization. It said this particular submission's drafting problems prevented certification. A different sponsor with a tightly drafted measure and an impartial, brief ballot title could submit a cannabis-related proposal under the same statute.

What does it mean to "abrogate" federal law in a state amendment?
Abrogate means to repeal or nullify. Under the Supremacy Clause of the U.S. Constitution, a state amendment cannot abrogate federal law, including the federal Controlled Substances Act. The AG flagged that legal impossibility as a misleading representation to voters, who might read the ballot title and believe the amendment would actually end federal enforcement, which it could not.

Why does the AG keep rejecting resubmissions of the same measure?
The opinion explains that "it is insufficient under section 7-9-107(c) to recycle language previously identified as problematic." The AG's earlier opinion already laid out the deficiencies; resubmitting the same defective text without curing the underlying problems produces another rejection. The AG noted the sponsor had now received two opinions identifying the same flaws.

What is the practical takeaway for ballot-initiative sponsors?
A ballot-initiative sponsor in Arkansas should treat the AG's first rejection as a substantive guide to what needs to change before resubmitting. The AG's office is not in the business of drafting measures, but its rejection letters describe the specific defects (length, ambiguity, partisan coloring, misleading representations of legal effect) that the sponsor must address before circulation can begin.

Citations

• Ark. Code Ann. § 7-9-107 (statutory authority and standards for AG ballot-title certification)
• Ark. Code Ann. § 7-9-106 (companion procedural section)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth time limit)
• Ark. Code Ann. § 25-16-701 (AG cannot engage in private practice of law)
• Op. Att'y Gen. 2017-120 (the AG's first rejection of the same measure, cited and quoted)
• Walker v. Priest, 342 Ark. 410, 29 S.W.3d 657 (2000) (length and complexity can defeat a ballot title)
• Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994) (text that "precludes the writing of an acceptable ballot title")
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential-fact omission and brevity standard)

Source

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

Original opinion text

Opinion No. 2018-113
October 1, 2018
Ms. Clair Danner, Sponsor
277 Marion County 5029
St. Joe, AR 72675

Dear Ms. Danner:

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 a proposed constitutional amendment titled the "Natural Resource Cannabis Amendment." The full popular name, ballot title, and amendment text are reproduced as an enclosure to this letter.

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.

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 one submitted is wholly deficient. Nor does the statute require that I modify the proposed measure itself, in order to then summarize its text in a suitable ballot title. Instead, crafting and accurately summarizing the measure are the sponsor's responsibilities prior to submission.

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. Your submission is defective to the point that I must reject popular name, the ballot title, and proposed measure as drafted.

DISCUSSION

You have submitted essentially the same measure I rejected in Attorney General Opinion 2017-120, issued to you on November 20, 2017. Your previous proposal was flagged as so all-encompassing, overlong, and dense that it was not capable of having a ballot title that will satisfy the Court's test for ballot title sufficiency. As I stated in that opinion:

"The Arkansas Supreme Court has recognized that 'at some point, length and complexity alone might militate against a voter's ability to form an intelligent opinion about the issue at hand.' In my opinion, this point has been reached here. The text of your measure is overlong and extremely dense. As a result, I cannot begin the process of identifying the textual ambiguities that would result in a ballot title misleading to voters. I must reject the submission for this reason."

I also explained that the ballot title was "inherently misleading" because it gave voters "the impression that amending the Arkansas Constitution could negate or alter federal law."

These observations apply equally to the submission at hand, if not more so, given the additional language regarding depository institutions and business services. Because the voters have a limited amount of time to spend in the voting booth, they cannot practically be expected to read and comprehend a ballot title of the complexity, detail, and length that would be necessary in this case to meet the criteria established by section 7-9-107 and the Court.

It is insufficient under section 7-9-107(c) to recycle language previously identified as problematic under the guidelines set out above. By doing so, it will result (and has resulted here) in repeated failures to address fundamental shortcomings that have been discussed in previous responses from my office. The proposed measure remains fundamentally deficient to the extent that it precludes the drafting of a ballot title that will satisfy the Court's test for ballot title sufficiency. In sum, I believe this is a case where the text, in the words of the Court, "precludes the writing of an acceptable ballot title."

CONCLUSION

As stated above, section 7-9-106 does not authorize or require me to modify the proposed measure itself in order to 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 popular name, ballot title, and proposed measure.

Sincerely,
Leslie Rutledge
Attorney General

Enclosure: Natural Resource Cannabis Amendment, Sponsor: Clair Danner. The full text of the proposed popular name, ballot title, and amendment is preserved in the official record as submitted; see the linked landing page for the source filing.