Why did Arkansas reject the 2020 recreational marijuana ballot title?

Plain-English summary

Mary L. Berry submitted a proposed constitutional amendment, "The Arkansas Recreational Marijuana Amendment of 2020," for ballot-title certification. The proposal would have legalized recreational cannabis for adults 18 and over, set up a two-tier license system administered by the Arkansas Game and Fish Commission and the Alcoholic Beverage Control Division, imposed an 8% state excise tax and a 5% local sales tax on top of regular sales tax, set possession and purchase limits, banned sales within 1500 feet of schools, churches, and daycares, and expunged prior marijuana-related convictions on the amendment's effective date.

The AG rejected the entire submission. The reasoning was short: the measure was virtually identical to one she had already rejected in Op. 2018-119, and the same fundamental, threshold shortcomings made it impossible to draft a ballot title that would meet the Arkansas Supreme Court's sufficiency test. The opinion did not enumerate fresh defects in detail. It pointed back to Op. 2018-119 and explained that resubmitting essentially the same proposal would produce the same rejection.

The AG also reiterated the structural rule for ballot-title certification: she can certify, substitute and certify, or reject. She is not authorized to redraft the underlying measure. Doing so would amount to engaging in the private practice of law, which Ark. Code Ann. § 25-16-701 prohibits. Crafting and accurately summarizing the measure are the sponsor's responsibilities.

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 governs the AG's review of popular names and ballot titles for proposed initiated measures. Three options are available: certify the submission, substitute and certify a more suitable popular name or ballot title where practicable, or reject the submission outright if the ballot title or the nature of the issue is so presented as to be misleading.

The Arkansas Supreme Court has built a deep body of precedent around what makes a ballot title sufficient. Bailey v. McCuen requires titles to be free of misleading tendency by amplification, omission, or fallacy, and free of partisan coloring. Becker v. McCuen requires honest and impartial language. Christian Civic Action Comm. v. McCuen requires the title to convey an intelligible idea of the scope and significance of the proposed change. Lange v. Martin and Wilson v. Martin require that voters be able to make a "reasoned decision in the voting booth," which means defining technical terms rather than leaving voters to guess. Roberts v. Priest establishes the rule that drove the rejection here: a ballot title cannot be approved if internal inconsistencies in the underlying measure inevitably create confusion in the title.

For the 2018 marijuana amendment, the AG had previously identified those internal inconsistencies in Op. 2018-119. Because the resubmitted measure was virtually identical, the same problem persisted, and the AG could not draft around it under § 7-9-107.

A separate procedural backdrop matters. The AG cannot redraft the underlying proposal. Section 25-16-701 prohibits the AG from engaging in the private practice of law, and Op. 2017-032 spelled out that drafting language for a sponsor would cross that line. Ballot titles must also remain "brief and concise" under § 7-9-107(b) and consistent with the statutory five-minute limit on time in a voting booth, § 7-5-309.

Common questions

Why did the AG reject this recreational marijuana amendment?

The proposal was virtually identical to one already rejected in Op. 2018-119, and the same threshold defects in the underlying measure made it impossible to draft a ballot title that would meet the Arkansas Supreme Court's sufficiency test. The opinion treated the resubmission as a repeat of the same problem and rejected it on that basis.

Was this the only attempt to put recreational marijuana on the ballot in 2018?

No. The same office issued multiple ballot-title opinions on related cannabis proposals around this period, including Op. 2018-119 (which this opinion expressly references) and other opinions involving cultivation, distribution, and possession measures.

Can the Attorney General fix a sponsor's proposed measure?

No. Under Ark. Code Ann. § 7-9-107, the AG can substitute and certify a more suitable ballot title where practicable. The AG cannot redraft the underlying proposed measure. Per Op. 2017-032 and Ark. Code Ann. § 25-16-701, doing so would amount to engaging in the private practice of law, which is statutorily forbidden.

What does it mean that the proposal had "internal inconsistencies"?

Per Roberts v. Priest, when the text of the proposed measure itself produces confusion or inconsistency, that confusion bleeds into any ballot title summarizing it. A ballot title cannot cure ambiguity in the underlying proposal because the title is supposed to summarize, not rewrite. If the proposal cannot be summarized fairly because the proposal itself is unclear, the AG must reject the whole submission.

What is "partisan coloring" in a ballot title?

Per Bailey v. McCuen and Crochet v. Priest, language that "creates a fatally misleading tendency" 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." Ballot titles must be neutral; they cannot read like advocacy.

Citations

Ark. Code Ann. §§ 7-9-107, 7-5-309, 25-16-701; Pafford v. Hall, 217 Ark. 734 (1950); Chaney v. Bryant, 259 Ark. 294 (1976); Moore v. Hall, 229 Ark. 411 (1958); May v. Daniels, 359 Ark. 100 (2004); Wilson v. Martin, 2016 Ark. 334; Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994); Lange v. Martin, 2016 Ark. 337; Becker v. Riviere, 270 Ark. 219 (1980); Bailey v. McCuen, 318 Ark. 277 (1994); Becker v. McCuen, 303 Ark. 482 (1990); Crochet v. Priest, 326 Ark. 338 (1996); Roberts v. Priest, 341 Ark. 813 (2000); Donovan v. Priest, 326 Ark. 353 (1996); Plugge v. McCuen, 310 Ark. 654 (1992); Kurrus v. Priest, 342 Ark. 434 (2000); Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463 (1984); prior AG Op. 2018-119; Op. Att'y Gen. 2017-032.

Source

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

Original opinion text

Opinion No. 2018-138
November 27, 2018

Ms. Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677

Dear Ms. Berry:

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 Recreational Marijuana Amendment of 2020

Ballot Title

An Amendment to the Arkansas Constitution defining recreational marijuana as any part of the cannabis plant, living or not, that is cultivated to be used as an intoxicant for the reason of enjoyment or pleasure; this Amendment will make the cultivation, production, distribution and sale of recreational marijuana for persons 18 years of age and older legal under State law, but recognizing that the listed activities regarding marijuana is [sic] prohibited under federal law; under this Amendment the Arkansas Game and Fish Commission and the Alcoholic Beverage Control Division shall regulate the cultivation and production of recreational marijuana that is sold in the State, the Commission shall issue 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 which would permit the possession, 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, and 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 Commission and the Division 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 may 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; non resident [sic] adults in the State may 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 any person serving incarceration, probation, or parole for violating the Arkansas Uniformed [sic] Controlled Substances Act as it pertains to marijuana, whose current and only conviction was for a marijuana related offense 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 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% and the General Assembly shall determine the allocation of the tax revenue received by the State from the sales; under this Amendment 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 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; 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; the provisions of this Amendment shall supersede all conflicting State and local laws, charters, regulations, and any and all other provisions in conflict with this Amendment; this Amendment does not suppress any privileges or rights of a qualifying patient or licensed entity in regards to medical marijuana; marijuana that is cultivated, distributed, and sold for medical purposes will remain under the same regulatory scheme pursuant to the Arkansas Medical Marijuana Amendment of 2016; marijuana that is cultivated, distributed, and sold for adult recreational purposes shall be regulated pursuant to this Amendment.

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 has a threshold shortcoming that requires me to reject popular name, the ballot title, and proposed measure as drafted.

Indeed, the measure you have submitted is virtually identical to the measure I rejected in Attorney General Opinion 2018-119. And just as with the proposal under consideration in that opinion, this measure has fundamental shortcomings that preclude the drafting of a ballot title that will satisfy the Court's test for ballot-title sufficiency.

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 sponsors' 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: full text of the proposed Arkansas Recreational Marijuana Amendment of 2020, including the popular name, ballot title, and Sections 1-10 of the proposed amendment text covering definitions, licensing, possession and purchase rules, packaging and labeling, administration, paraphernalia, employer/driving/minor provisions, expungement, taxation, and conflicting laws.)