If someone sues over a different election-code statute, does Arkansas's Secretary of State have to put a measure he already declared insufficient onto the ballot anyway?

Plain-English summary

Secretary of State John Thurston asked a tightly framed question. He had decided that a particular ballot measure was insufficient and had not certified it for the ballot. A separate lawsuit was pending. That lawsuit did not challenge his decision and did not challenge the measure itself; it challenged the constitutionality of a different statute in the election code. Thurston wanted to know whether Ark. Code Ann. § 7-5-204(c) forced him to transmit the measure (and its ballot title) to the county election commissions for placement on the ballot anyway.

AG Leslie Rutledge said no.

Section 7-5-204(c)(1) provides:

If the Secretary of State has not determined the sufficiency of a petition for an amendment or a measure by the seventy-fifth day before the general election or if an amendment or a measure has been challenged for any reason in a court of competent jurisdiction, the Secretary of State shall nonetheless transmit the amendment or measure and the ballot title of each amendment and measure to the county election commissions to make any required posting and to place the amendment or measure on the ballot.

Two separate triggers, both of which must be checked against the facts:

1. Has the Secretary failed to determine sufficiency by the 75-day mark? In Thurston's scenario, no, he had already decided.
2. Has "an amendment or a measure" been "challenged for any reason in a court of competent jurisdiction"? In Thurston's scenario, no, only a different election-code statute had been challenged. A constitutional attack on a different statute is not a challenge to "an amendment or a measure."

The Secretary asked a hypothetical follow-up: would § 7-5-204(c)(1) require transmission if a lawsuit were filed expressly challenging his decision not to certify? The AG said that read the statute backwards. Such a lawsuit challenges only the certification decision, not the measure itself. Treating a sponsor's filing of a sure-loser lawsuit as a trigger to certify a facially insufficient measure would, in the AG's words, "require the Secretary to certify a facially insufficient measure for the ballot solely because its sponsor files a lawsuit that will surely not succeed."

The opinion came out one month before the November 2020 general election. The narrow holding gave the Secretary cover to keep an insufficient measure off the ballot when the only pending litigation was directed at a different statute.

Currency note

This opinion was issued in 2020. 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.

Common questions

What were the two triggers in § 7-5-204(c)(1)?
First, the Secretary failing to determine the sufficiency of a petition by the 75th day before the general election. Second, an amendment or measure being "challenged for any reason in a court of competent jurisdiction." Both triggers required action keyed to specific facts; meeting neither one left the Secretary without a duty to transmit.

Why didn't the constitutional challenge to a different statute count?
Because the statutory language requires the challenge to be against "an amendment or a measure" itself. Suing over the constitutionality of a separate election-code provision does not put the underlying measure in litigation; the measure stays whatever the Secretary decided about it.

What if a lawsuit directly challenged the Secretary's certification decision?
The AG addressed this in dicta and said it would not change the answer. Such a lawsuit challenges the Secretary's act, not the measure. Treating it as a trigger would let any sponsor of an insufficient measure force certification simply by filing suit, even a clearly meritless one.

What did the Secretary's prior duty require?
Under Ark. Code Ann. § 7-9-111(c) (referenced in the opinion's footnote 5), the Secretary must "ascertain and declare the sufficiency or insufficiency of the signatures submitted on each statewide initiative petition and each statewide referendum petition within thirty (30) days after it is filed." If insufficient, the Secretary "must not certify that petition for placement on the ballot." Section 7-5-204(c)(1) was a backstop for the unusual case where that sufficiency determination had not been made by the 75-day deadline, or where the measure itself had been put in dispute.

Was the AG endorsing keeping a measure off the ballot just because the sponsor sued?
The opinion did not bless any particular outcome. It said only that § 7-5-204(c)(1) was not the legal hook to force transmission in the scenario the Secretary described. A measure sponsor with a real legal grievance had to bring that grievance through the right vehicle, not through this statute.

Background and statutory framework

Arkansas's ballot-certification process for citizen-initiated amendments and measures runs through the Secretary of State. Once a sponsor submits a petition with the constitutionally required signatures, the Secretary has 30 days under Ark. Code Ann. § 7-9-111(c) to determine sufficiency. If the petition is sufficient, it gets certified for the ballot; if not, it does not. Lawsuits over either outcome are routine.

Section 7-5-204(c)(1) functions as a fail-safe. It says that the absence of a sufficiency determination by the 75-day cutoff before a general election is itself a trigger for transmission, so a measure does not get effectively killed by Secretary-of-State delay. And if "an amendment or a measure" itself is being challenged in court at the cutoff date, the same fail-safe transmission is required so the courts can resolve the challenge with the measure tentatively on the ballot.

The AG read both triggers narrowly under standard plain-meaning rules (Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003); Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179). The court would not "search for legislative intent" when the language was clear, would not read "strained constructions" (Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984)), and would not take "as intended by the legislature" anything not "clearly expressed" (State ex rel. Sargent v. Lewis, 335 Ark. 188, 969 S.W.2d 894 (1998)).

Citations

Statutes:

• Ark. Code Ann. § 7-5-204(c) (Repl. 2018) (Secretary of State's transmission of measures to county election commissions)
• Ark. Code Ann. § 7-5-204(c)(1) (the two triggers)
• Ark. Code Ann. § 7-9-111(c) (30-day sufficiency determination)

Cases:

• Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003) (statute construed by ordinary meaning)
• Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179 (no resort to construction rules where text is plain)
• Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984) (no strained construction)
• State ex rel. Sargent v. Lewis, 335 Ark. 188, 969 S.W.2d 894 (1998) (nothing taken as intended that is not clearly expressed)

Source

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

Original opinion text

Opinion No. 2020-045
September 9, 2020
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable John Thurston
Secretary of State
Arkansas State Capitol, Room 256
Little Rock, AR 72201

Dear Secretary Thurston:

This is in response to your request for an opinion on the following question:

Does Ark. Code Ann. § 7-5-204(c) (Repl. 2018) require the Secretary of State to transmit an amendment or measure, including ballot title, to the county election commissions for placement on the ballot when the only pending litigation is a lawsuit challenging the constitutionality of another statute in the election code and not expressly challenging the Secretary's decision not to certify a measure to the ballot?

RESPONSE

The answer to your question is "no." A plain reading of this statute makes it clear that it does not require the Secretary of State to transmit a measure for placement on the ballot in the scenario posed by your question.

DISCUSSION

As relevant to your question, subsection 7-5-204(c) of the Arkansas Code provides:

If the Secretary of State has not determined the sufficiency of a petition for an amendment or a measure by the seventy-fifth day before the general election or if an amendment or a measure has been challenged for any reason in a court of competent jurisdiction, the Secretary of State shall nonetheless transmit the amendment or measure and the ballot title of each amendment and measure to the county election commissions to make any required posting and to place the amendment or measure on the ballot.

The first rule of statutory interpretation is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. When statutory language is plain and unambiguous, the meaning of the statute must be determined from the plain meaning of the language used.

Under a plain reading of section 7-5-204(c)(1), the Secretary of State is required to certify an amendment or measure and ballot title for the ballot only if either of two conditions is satisfied: (1) he "has not determined the sufficiency of a petition by the seventy-fifth day before the general election"; or (2) "an amendment or a measure has been challenged for any reason in a court of competent jurisdiction."

The scenario posed by your question satisfies neither of these conditions. Your question states that the Secretary has already made a "decision not to certify a measure to the ballot." This fact rules out the first condition in section 7-5-204(c)(1), which is only triggered if the Secretary "has not determined the sufficiency" of a measure.

The facts stated in your question also rule out the second condition under which section 7-5-204(c)(1) would apply. To satisfy this condition, the measure must have "been challenged for any reason in a court of competent jurisdiction." But as your question makes clear, the only pending lawsuit challenges the constitutionality of another provision in the election code. A constitutional challenge to another Arkansas law is not a challenge to "an amendment or a measure." Therefore, this second condition also is not satisfied by the facts stated in your question.

Your question additionally suggests that section 7-5-204(c)(1) would apply if there were a lawsuit "expressly challenging the Secretary's decision not to certify a measure to the ballot." This suggestion is based on a misreading of the second condition. Such a lawsuit would challenge only the Secretary's certification decision, not "an amendment or a measure." Once the Secretary has decided that a measure is insufficient for certification, a lawsuit challenging that decision does not empower the Secretary to certify that measure for the ballot despite its insufficiency. Any other reading of this provision would require the Secretary to certify a facially insufficient measure for the ballot solely because its sponsor files a lawsuit that will surely not succeed. That is not what section 7-5-204(c)(1) requires.

In sum, a plain reading of section 7-5-204(c)(1) makes it clear that it is inapplicable to the scenario posed by your question.

Sincerely,

LESLIE RUTLEDGE
Attorney General