Why did Arkansas reject the popular name and ballot title for the 2018 ranked voting constitutional amendment?

Plain-English summary

Gary Fults, sponsor of a proposed "Arkansas Ranked Voting Amendment," asked the Attorney General to certify the popular name and ballot title under Ark. Code Ann. § 7-9-107. The amendment would have created a ranked-choice voting procedure for Arkansas elections in primary and general elections, allowing voters to rank candidates by preference when three or more candidates competed for the same office.

Attorney General Leslie Rutledge rejected the entire submission: popular name, ballot title, and proposed measure. Three problems, each fatal on its own:

1. Internal inconsistency in the ballot title. The ballot title said in one place that the amendment would "establish election ballots to avoid a runoff election" but in another that it would "eliminat[e] runoffs in the primary and general elections." Avoiding and eliminating are not the same thing. The Arkansas Supreme Court has long held that internal inconsistencies in a ballot title are inherently misleading.

2. Partisan coloring. The ballot title described the measure as expanding "the overseas and military option of rank voting to all registered voters in Arkansas." The text of the proposal nowhere stated how it would extend an existing overseas/military procedure, but the framing implied the proposal was a routine expansion of an established practice. Under Bailey v. McCuen and Crochet v. Priest, language "tinged with partisan coloring" creates a "fatally misleading tendency" and disqualifies a ballot title.

3. Ambiguity in the proposed measure itself. Even if the ballot title were rewritten cleanly, the underlying measure was internally ambiguous. Section 2 of the proposed measure said one purpose was to "eliminate primary and general election runoffs," but the procedures the measure laid out in no way guaranteed that result; in fact the procedures referenced runoffs continuing to occur. When the proposed text creates internal contradictions, no ballot title can honestly summarize it. The Arkansas Supreme Court in Roberts v. Priest established that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title, and to confusion in the ballot title itself."

The opinion noted that the AG can substitute and certify a more suitable ballot title, but cannot rewrite the proposed measure itself. That is the sponsor's responsibility, and the AG's office is statutorily barred from engaging in the private practice of law (Ark. Code Ann. § 25-16-701).

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 governs the AG's certification review of popular names and ballot titles. The AG can:

1. Certify the submission as filed.
2. Substitute and certify a more suitable popular name or ballot title, if practicable.
3. Reject the submission entirely 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 Arkansas Supreme Court has built a substantial body of doctrine around what makes a ballot title sufficient:

• The ballot title must "honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act" (Arkansas Women's Political Caucus v. Riviere).
• It must "adequately inform" voters and enable a "reasoned decision in the voting booth" (Lange v. Martin).
• It must be "honest and impartial" (Becker v. McCuen).
• It must convey an "intelligible idea of the scope and significance of a proposed change in the law" (Christian Civic Action Comm. v. McCuen).
• It must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring" (Bailey v. McCuen).
• It cannot be approved if the proposed measure's text creates a disconnect between the title and the content (Roberts v. Priest).

These standards together create both a positive duty (the title must accurately summarize the measure) and a negative duty (the title must avoid misleading voters in any way).

Why the proposal had three independent fatal flaws

The opinion is unusual in laying out three distinct rejection grounds, any one of which would have been enough. The structure suggests the AG wanted the sponsor to understand the depth of the redrafting needed.

Flaw 1: Internal inconsistency in the ballot title. Saying the amendment would "avoid" runoffs is not the same as saying it would "eliminate" them. The two phrases imply different mechanisms (some procedure that prevents runoffs from being needed, versus an outright legal abolition of runoffs). A voter reading the ballot title cannot tell which is being voted on. Under longstanding Arkansas Supreme Court precedent, internal inconsistency is inherently misleading.

Flaw 2: Partisan coloring. "Expand the overseas and military option" implies that there is an existing rank voting option for military and overseas voters, and that the measure simply extends it to everyone. But the proposed measure's text did not engage with any existing overseas/military voting procedure or provide a mechanism for that "expansion." The phrasing is the kind of language that, in the Christian Civic Action Comm. case, "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." That is a fatally misleading tendency.

Flaw 3: Ambiguity in the proposed measure. Section 2 said the purpose was to "eliminate primary and general election runoffs." Section 3, however, set up a procedure where each elector's vote was assigned to "his or her top ranked preference," and continued: "Your ballot will be counted in the runoff, if there is one, according to the order in which you rank the candidates." So the procedure assumed runoffs would still occur and provided rules for how ranked ballots would be applied to them. That contradicts Section 2's stated purpose. When the underlying measure's text fights itself, no ballot title can summarize it without amplifying the contradiction.

What the proposed measure tried to do

The amendment would have:

• Created a ranked-choice voting procedure for primary and general elections in Arkansas.
• Required county boards of election commissioners to prepare ballots with an "offset section" for offices contested by three or more candidates.
• Allowed voters to rank candidates by preference, with first choice marked "1," second "2," and so on.
• Assigned each elector's vote to the top-ranked candidate at tabulation.
• Provided that if a first-choice candidate did not advance to a runoff, the ballot would be "counted in the runoff" according to the next ranked preferences.
• Taken effect January 1, 2021.

The text was short (a few sections) but its concepts conflicted: the stated purpose was to eliminate runoffs, but the operational procedure described how ranked ballots would feed into runoffs that continued to exist. That contradiction is what the AG identified as the underlying drafting defect.

Common questions

Why was this ranked voting amendment rejected?

Three independent reasons: the ballot title contained an internal inconsistency (avoiding versus eliminating runoffs), the ballot title was tinged with partisan coloring through misleading framing of the measure as expanding a military voting option, and the proposed measure itself was internally ambiguous in ways no ballot title could honestly summarize.

Could the Attorney General have substituted a corrected ballot title?

The AG can substitute a more suitable ballot title under § 7-9-107. But that authority does not extend to rewriting the proposed measure itself. When the underlying measure has internal contradictions (as this one did), substitution cannot fix the problem.

Was this the sponsor's first try at this proposal?

No. The opinion references Op. Att'y Gen. 2018-112, an earlier rejection of a similar submission by the same sponsor.

What is "partisan coloring" in a ballot title?

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." Bailey v. McCuen and Crochet v. Priest are the leading cases. The standard is more demanding than ordinary advocacy: a ballot title cannot tell voters how to feel about the measure, only what the measure does.

What's the difference between "avoiding" and "eliminating" a runoff?

Avoiding implies a procedure that makes runoffs unnecessary in some cases (for example, by changing how ballots are counted so a winner emerges from the first round). Eliminating implies a legal abolition of runoffs as a category. They are different policies, and the ambiguity meant voters could not tell which one they were being asked to adopt.

Citations

Ark. Code Ann. §§ 7-9-107, 25-16-701; Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463 (1984); Becker v. Riviere, 270 Ark. 219 (1980); Becker v. McCuen, 303 Ark. 482 (1990); Bailey v. McCuen, 318 Ark. 277 (1994); Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994); Crochet v. Priest, 326 Ark. 338 (1996); Roberts v. Priest, 341 Ark. 813 (2000); Lange v. Martin, 2016 Ark. 337; prior AG opinions Ops. Att'y Gen. 2017-032, 2018-112.

Source

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

Original opinion text

Opinion No. 2018-141
December 10, 2018
Mr. Gary Fults, President
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
1314 E. Woodson Lateral Road
Hensley, AR 72065
Dear Mr. Fults:

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 constitutional amendment.

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.

Code section 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.

When 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." The Arkansas Supreme Court has explained that ballot titles are legally insufficient unless they "adequately inform" voters and enable a "reasoned decision in the voting booth." 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.

Likewise, a ballot title cannot be approved if the text of the proposal creates a disconnect between the ballot title and the content of the proposed measure. This is because "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title, and to confusion in the ballot title itself." And any ballot title submitted for review should represent the sponsor's attempt to summarize the proposed amendment or act in a non-misleading fashion.

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 compose or otherwise completely rewrite 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.

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 Ranked Voting Amendment

Ballot Title

A Constitutional Amendment to establish election ballots to avoid a runoff election. To expand the overseas and military option of rank voting to all registered voters in Arkansas.

Each voter has the opportunity to rank candidates as first choice, second choice, third choice, etc. in an election where three or more candidates are competing for the same position, therefore eliminating runoffs in the primary and general elections [sic punctuation omission]

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal submitted. In this case, I must reject the popular name, ballot title, and proposed measure in their entirety because of fundamental deficiencies with the submission.

As an initial matter, your proposed ballot title is, in my opinion, misleading, internally inconsistent, and impermissibly tinged with partisan coloring. For example, the ballot title states in one place that your proposed amendment will "establish election ballots to avoid a runoff election." (Emphasis added.) Yet the ballot title later states that your measure would "eliminat[e] runoffs in the primary and general elections." This is an internal inconsistency that is inherently misleading. Moreover, the ballot title states that your measure is meant "[t]o expand the overseas and military option of rank voting to all registered voters in Arkansas." That phrase is problematic for at least two reasons: 1) other than being stated as one of the purposes of your proposed amendment, the text of your proposal nowhere states how that purpose will be accomplished, and 2) it lends a partisan coloring to the ballot title through its unsupported suggestion that it will "expand the … option …."

But more significantly, the proposal itself is ambiguous to such an extent that I believe it precludes the crafting of a ballot title that will satisfy the Arkansas Supreme Court's test for ballot title sufficiency. The constitutional amendment you are proposing represents a fundamental change in how voting is conducted under Arkansas law. However, the text of your measure, much like your previous submission, appears overly simplistic and insufficiently detailed in how it would be executed. For instance, as stated above, one of the purposes you give for your proposed amendment, in section 2 of the text, is to "eliminate primary and general election runoffs" [sic] (emphasis added). Yet, the less-than-clear procedures laid out in your proposed measure in no way can guarantee that. That is but one ambiguous and misleading aspect of your submission. In my opinion, your proposed measure as submitted is fundamentally ambiguous to the extent that it precludes the crafting of a ballot title that will satisfy the Court's test for ballot title sufficiency.

CONCLUSION

My office is not charged with any role in drafting initiated amendments or acts. Nor can I advise individual sponsors, who 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

(The submission's full text, including the popular name, ballot title, and the proposed measure's sections, was attached to the original opinion.)