What does it take to get a popular name and ballot title certified for an Arkansas statewide referendum, and why was the LEARNS Act referendum draft rejected?

Plain-English summary

Steve Grappe, on behalf of Citizens for Arkansas Public Education and Teachers, submitted a popular name and ballot title for a proposed statewide referendum on the LEARNS Act (Senate Bill 294, Act 237 of 2023). Under A.C.A. § 7-9-107, the Attorney General must review and either certify or reject ballot titles for proposed referenda within ten business days. The AG rejected the submission with detailed reasons.

The AG's review framework, drawn from a long line of Arkansas Supreme Court cases, has three key principles:
- The popular name is a useful legislative device. It need not contain detailed information but must not be misleading or partisan.
- The ballot title must summarize the act fairly and impartially, give the voter a fair understanding of the issue, and not omit any "essential fact which would give the voter serious ground for reflection" (Bailey v. McCuen).
- The ballot title must be brief and concise (within the time limit voters have under A.C.A. § 7-5-309(b)(1)(B)) but free from misleading tendencies and not "tinged with partisan coloring."

The decisive defect: a referendum is a vote to approve or reject an existing act. A "for" vote approves the act; an "against" vote rejects it. That can confuse voters who oppose the underlying act and instinctively want to vote "for" the referendum effort. The submitted draft did not explain that a "for" vote on the LEARNS Act referendum was a vote to KEEP the LEARNS Act, while an "against" vote was a vote to REJECT it. The AG concluded "the impact of a vote for or against the measure is unclear to the voter" and rejected on that ground alone.

Beyond the for/against ambiguity, the AG identified four other categories of defects:

1. Insufficient summaries. The draft used descriptive labels ("add additional school safety requirements," "add student success plan requirements") rather than actual summaries of what the act adds, changes, or repeals. The 145-page LEARNS Act has substantive content that the draft did not summarize.

2. Inaccurate summaries. The first bullet read that the act gives "school superintendents and principals authority to make all employment-related decisions." The AG noted that the underlying section actually limits the discretion to performance, effectiveness, and qualifications, and excludes seniority. The draft overstated the grant of authority.

3. Missing summaries. The draft omitted several substantive provisions:
   - Page 5, lines 11-19: superintendent must consult with teachers before hiring or placing a principal.
   - Pages 40-41: performance targets for superintendents.
   - Pages 81-82: tripling of the tax credit available for contributions to the Philanthropic Investment in Arkansas Kids Program.
   - Pages 103-104: expanded background checks to include volunteer coaches and increased reporting obligations.

4. Confusing lead-in language. "Major provisions include: ... add additional school safety requirements" is ungrammatical. Combining the lead-in with the bullet openers produced disjointed and confusing reading.

Because of the volume of defects, the AG flagged that "all the issues noted above are essential for you to consider" if the sponsor chose to submit a redesigned draft. The AG also noted that constraining the title to the margins of the submitted document was unnecessary and that standard paper-size formatting would help.

Procedurally, the AG cited three earlier ballot-title certifications (2015-036, 2013-054, 2013-043) as examples for the sponsor to consult.

What this means for you

Ballot title sponsors and petition drafters

Three drafting takeaways from this opinion:

1. Build the for/against framing into the ballot title. For a referendum on an existing act, voters need to know that a "for" vote approves and an "against" vote rejects. Failing this single test is fatal at the AG-review stage. Sample language: "A vote 'for' this measure means you favor keeping Act 237 of 2023 (LEARNS) in effect. A vote 'against' means you want Act 237 to be repealed." Adapt to fit.

2. Summarize substance, not topics. "Add school safety requirements" tells the voter nothing. "Require schools to adopt visitor screening, security camera, and threat-assessment policies" tells the voter what changes. Walk through the act and ensure each major provision has a substantive summary.

3. Cover the whole act, accurately. The AG looks for missing material that would give voters "serious ground for reflection." For long acts, this means a thorough review of every substantive provision, not just the headline ones. A tax credit triple, a fund transfer, an expanded background check requirement, a new performance-target obligation: each is potentially material.

Use already-certified examples (2015-036, 2013-054, 2013-043 are cited) as templates. Match the structure and formality of those drafts.

Election law attorneys advising sponsors

Two procedural reminders:

• Ten business days is the AG's response window. Plan submission timing to leave room for redesign and resubmission, especially if you anticipate any of the structural defects identified here.

• The AG's decision can be approval, substitution, or rejection. Substitution (the AG drafts a more suitable title) saves a redesign cycle but costs the sponsor control over the final wording. Sponsors should weigh whether to ask the AG to substitute or to redesign themselves.

Voters and voter-education organizations

Read the entire ballot title carefully on referendum measures. The for/against framing matters. A "for" vote on a referendum approves the act; an "against" vote rejects it. That is the opposite of how a typical citizen might assume the question works ("I'm voting for the petition effort, so I vote for"). When the AG rejects a ballot title for failing this test, the petition cannot circulate until a corrected title is certified.

State legislators considering future legislation

If you anticipate a referendum effort against an act you sponsor, the ballot-title review process can take real time. Sponsors of referenda need a certified title before they can collect signatures. The AG's review and any redesign cycles can compress the practical signature-gathering window.

News reporters covering ballot measures

Watch the AG's ballot-title decisions for substantive analysis. The AG's letters often contain a clear breakdown of what is missing or misleading in the draft. Compare the certified title (when one is finally produced) against the original draft to see where the legal review reshaped the public message.

Sponsors of constitutional amendments (a related but different process)

The same A.C.A. § 7-9-107 framework and the same case-law standards govern. Constitutional amendment ballot titles face additional substantive scrutiny because they amend the constitution rather than an act, and material omissions are even more likely to be deemed essential.

Common questions

What is the difference between an "approve" and "reject" vote on a referendum?
A referendum is a vote on an existing act. A "for" vote means the voter wants the act to remain law. An "against" vote means the voter wants the act repealed. Sponsors of a referendum effort are typically opposing the act, so their supporters need to vote AGAINST.

What does the popular name need to contain?
The popular name is a brief identifying label for the measure. It need not detail the act but must not be misleading or partisan. Pafford v. Hall, 217 Ark. 734 (1950), is the foundational case. Chaney v. Bryant, 259 Ark. 294 (1976), and Moore v. Hall, 229 Ark. 411 (1958), reinforce the rule against partisan or misleading framing.

What does the ballot title need to contain?
A summary that fairly and impartially describes the act, including any "essential fact which would give the voter serious ground for reflection" (Bailey v. McCuen, 318 Ark. 277). It must be brief enough for voters to read in the booth (the time limit is in A.C.A. § 7-5-309(b)(1)(B)) but complete enough to not mislead.

What happens if the AG rejects the title?
The sponsor can redesign and resubmit, or the AG can substitute a more suitable title. Without a certified title, the sponsor cannot collect signatures.

How is "essential fact" determined?
Case-by-case, with the test being whether a voter would consider the omitted fact significant enough to change a vote. Plugge v. McCuen, 310 Ark. 654, says perfection is not required; the title need not address every legal nuance. But omissions that cross into "essential" territory are fatal.

Are partisan adjectives allowed in the title?
No. Becker v. McCuen, 303 Ark. 482, says the title must be honest and impartial. Partisan coloring is a basis for rejection.

Can sponsors challenge a rejection?
Sponsors can submit a redesigned draft and ask for re-review. They can also challenge the AG's decision in the Arkansas Supreme Court, which has original jurisdiction over ballot-title disputes for state measures. The redesign path is faster than the litigation path.

Background and statutory framework

Statutory framework:
- A.C.A. § 7-9-107(a): sponsor must submit the original draft to the AG.
- A.C.A. § 7-9-107(b): "original draft" includes the full text plus the popular name and ballot title.
- A.C.A. § 7-9-107(d)(1): AG can certify, substitute, or reject within ten business days.
- A.C.A. § 7-9-107(d)(2): the ballot title submitted or supplied must "briefly and concisely state the purpose" of the measure.
- A.C.A. § 7-9-107(e): rejection authorized when the title is misleading or worded so a vote for/against produces the opposite of the voter's intent.
- A.C.A. § 7-5-309(b)(1)(B): voters have up to ten minutes to mark a ballot.

Case law on popular names:
- Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950): popular name as legislative device.
- Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976): popular name not misleading or partisan.
- Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958): same.
- May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004): popular name and ballot title considered together.

Case law on ballot titles:
- Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980): impartial summary giving fair understanding.
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994): essential facts must be included; brevity required.
- Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992): title need not address every legal argument.
- Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990): honest and impartial.
- Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994): ballot title must convey "an intelligible idea of the scope and significance of a proposed change in the law."

The underlying measure: Act 237 of 2023 (LEARNS Act), originally Senate Bill 294, addressing K-12 education in Arkansas (literacy screeners, school safety, charter expansion, school choice, Educational Freedom Account program, teacher salary, repeal of Teacher Fair Dismissal Act and Public School Employee Fair Hearing Act, etc.).

Citations

• A.C.A. § 7-9-107(a), (b), (d)(1), (d)(2), (e) (AG ballot title review)
• A.C.A. § 7-5-309(b)(1)(B) (ballot time limit)
• 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)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Ark. Att'y Gen. Ops. 2015-036, 2013-054, 2013-043 (cited as drafting examples)

Source

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

Original opinion text

Opinion No. 2023-023
April 24, 2023
Steve Grappe
Citizens for Arkansas Public Education and Teachers
352 School Rd.
Rose Bud, AR 72137

Dear Mr. Grappe:

Under A.C.A. § 7-9-107, you have asked me to review and certify the following popular name and ballot title for a proposed statewide referendum. My decision under § 7-9-107 is based entirely on whether the proposed measure meets the legal standards required by the constitution as interpreted by the Arkansas Supreme Court. Any personal views I may hold on the merits of this measure have no bearing on my decision under this statute.

In what follows, I:

• reproduce the popular name and ballot title exactly as you have submitted them;
• explain (1) the general rules governing the Attorney General's review, and (2) the specific rules governing the sufficiency of popular names and ballot titles; and
• apply those specific rules to your draft.

You submitted the following popular name and ballot title:

Popular Name
LEARNS ACT / SB 294 / ACT 237 OF 2023

Ballot Title
AN ACT TO CREATE THE LEARNS ACT; TO AMEND VARIOUS PROVISIONS OF THE ARKANSAS CODE AS THEY RELATE TO EARLY CHILDHOOD THROUGH GRADE TWELVE (12) EDUCATION IN THE STATE OF ARKANSAS; TO DECLARE AN EMERGENCY; AND FOR OTHER PURPOSES. MAJOR PROVISIONS INCLUDE:

• GIVING SCHOOL SUPERINTENDENTS AND PRINCIPALS AUTHORITY TO MAKE ALL EMPLOYMENT-RELATED DECISIONS;
• ADD ADDITIONAL SCHOOL SAFETY REQUIREMENTS;
• IMPLEMENT LITERACY SCREENERS FOR KINDERGARTEN THRU [sic] THIRD GRADE, EXPAND LITERACY SUPPORT PROGRAMS AND REQUIRE MATH INTERVENTION PLANS;
• ADD STUDENT SUCCESS PLAN REQUIREMENTS;
• AUTHORIZE CONTRACTS WITH CHARTER SCHOOLS OR OTHER APPROVED ENTITIES FOR TRANSFORMATION OF SCHOOLS RATED "D" OR "F";
• PROHIBIT INDOCTRINATION OF STUDENTS WITH CERTAIN IDEOLOGIES;
• REQUIRE CURRICULUM MATERIALS ON CHILD SEXUAL ABUSE AND HUMAN TRAFFIC [sic], BUT WITH PARENTAL EXCEPTIONS AND PROHIBITING INSTRUCTION ON SEXUAL ORIENTATION, GENDER IDENTITY, AND OTHER SEXUAL TOPICS BEFORE FIFTH GRADE;
• ESTABLISH A HIGH-IMPACT TUTORING PILOT PROGRAM AND A COURSE CHOICE PROGRAM;
• ESTABLISH CAREER-READY PATHWAY DIPLOMAS;
• REQUIRE 75 HOURS OF COMMUNITY SERVICE FOR HIGH SCHOOL GRADUATION STARTING WITH THE 2026-2027 CLASS;
• ALLOW SCHOOL DISTRICTS AND CHARTER SCHOOLS TO OFFER UP TO 12 WEEKS OF PAID MATERNITY LEAVE TO THOSE EMPLOYED FULL-TIME FOR MORE THAN ONE YEAR;
• REQUIRE WRITTEN PERFORMANCE TARGETS FOR SUPERINTENDENTS;
• REPEAL INCENTIVES FOR TEACHER RECRUITMENT AND RETENTION IN HIGH-PRIORITY DISTRICTS;
• REPEAL THE TEACHER FAIR DISMISSAL ACT OF 1983, ARKANSAS CODE 6-17-1501 ET SEQ., AND THE PUBLIC SCHOOL EMPLOYEE FAIR HEARING ACT, ARKANSAS CODE 6-17-1701 ET SEQ.;
• INCREASE THE MINIMUM BASE SALARY FOR TEACHERS TO $50,000 PER YEAR; REQUIRE TEACHER CONTRACTS TO COVER 190 SCHOOL DAYS PER YEAR, INCLUDING 178 DAYS OF ON-SITE, IN PERSON INSTRUCTION, PROHIBIT PERSONNEL CONTRACTS WITH MORE RIGHTS THAN ALLOWED BY STATE LAW; ABOLISH MANDATORY STEP INCREASES FOR YEARS OF SERVICE AND MASTER'S DEGREES; AND INCREASE SALARIES OF EXISTING TEACHERS BY $2,000 PER YEAR FOR THE 2023-2024 YEAR;
• AUTHORIZING TEACHER MERIT BONUSES OF UP TO $10,000 PER YEAR;
• REMOVE NUMERICAL LIMITS ON SCHOOL CHOICE TRANSFERS, EXCEPT AS REQUIRED BY A COURT-APPROVED DESEGREGATION PLAN;
• ESTABLISH EDUCATIONAL FREEDOM ACCOUNT PROGRAM TO ALLOW PARENTS TO DIRECT STATE FUNDS TO PAY CERTAIN EXPENSES OF ATTENDING PRIVATE SCHOOLS;
• ESTABLISH A TRANSPORTATION MODERNIZATION GRANT PROGRAM, INCLUDING FUNDING FOR RIDESHARE PROGRAMS AND NEIGHBORHOOD CARPOOL STRATEGIES;
• REMOVE NUMERICAL LIMITS ON THE NUMBER OF CHARTER SCHOOLS;
• PROVIDE FOR ARKANSAS TEACHER ACADEMIES AT POSTSECONDARY INSTITUTIONS AND SCHOLARSHIPS FOR ATTENDEES; AND
• TRANSFER THE DIVISION OF CHILD CARE AND EARLY CHILDHOOD EDUCATION FROM THE DEPARTMENT OF HUMAN SERVICES TO THE DEPARTMENT OF EDUCATION.

1. Rules governing this review. Arkansas law requires sponsors of statewide referenda measures to "submit the original draft" of the measure to the Attorney General. An "original draft" includes the full text of the proposed measure along with its ballot title and popular name. Within ten business days of receiving the sponsor's original draft, the Attorney General must respond in one of three ways:

• First, the Attorney General may approve and certify the ballot title and popular name in the form they were submitted.
• Second, the Attorney General may "substitute and certify a more suitable popular name and ballot title."
• Third, the Attorney General may reject both the popular name and ballot title "and state his or her reasons therefor and instruct" the sponsors to "redesign the proposed measure and the ballot title and popular name." This response is permitted when, after reviewing the proposed measure, the Attorney General determines that "the ballot title or the nature of the issue" is (1) "presented in such manner" that the ballot title would be misleading or (2) "designed in such manner" that a vote for or against the issue would actually be a vote for the outcome opposite of what the voter intends.

In order to arrive at one of those three responses, the Attorney General examines the popular name and ballot title to ensure it complies with the legal standards established by Arkansas law as interpreted by the Arkansas Supreme Court. Although those standards, which are explained below, can be complicated, the basic purpose of the review is simple: the popular name and ballot title must accurately and impartially summarize the provisions of the law the voters will be asked to approve or reject.

2. Rules governing the popular name. The popular name is primarily a useful legislative device. While it need not contain detailed information or include exceptions that might be required of a ballot title, the popular name must not be misleading or partisan. And it must be considered together with the ballot title in determining the ballot title's sufficiency.

3. Rules governing the ballot title. The ballot title must summarize the act to be referred. The Court has developed general rules for what must be included in the summary and how that information must be presented. Sponsors must ensure their ballot titles summarize the referred act in a way that is impartial and gives the voter a fair understanding of the issues presented. Sponsors cannot omit material from the ballot title that qualifies as an "essential fact which would give the voter serious ground for reflection." Yet the ballot title must also be brief and concise lest voters exceed the statutory time allowed to mark a ballot. The ballot title is not required to be perfect, nor is it reasonable to expect the title to address every possible legal argument the proposed measure might evoke. The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy. And it must not be tinged with partisan coloring.

In sum, 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.

4. Application. Having reviewed your draft under the foregoing rules, I must reject your popular name and ballot title and instruct you to redesign them. Section 7-9-107(e) authorizes the Attorney General to reject the entire submission when the ballot title is misleading or worded in a way that a vote for or against the issue would actually be a vote for the outcome opposite of what the voter intends. Your popular name and ballot title suffer from the same problem: the impact of a vote for or against the measure is unclear to the voter. If someone votes "for" a referendum issue, that person is voting to approve the act. But someone who votes "against," is voting to reject the act. This means that most people who support the referendum effort and are fully informed will step into the voting booth and vote "against" on the issue. Because nothing in your popular name or ballot title indicates the impact of a vote for or against the measure, I must reject your draft and instruct you to redesign it. If you choose to redesign your popular name and ballot title, you may wish to consult examples that have been certified by this office.

While the foregoing defect is sufficient grounds for me to reject your submission, please note that your ballot title suffers from several additional problems:

• Insufficient summaries. Most of the ballot title's proposed summaries are insufficient. While I understand that it is challenging to summarize a 145-page act, your proposed summaries are more like descriptive labels for some of the act's component parts. For example, the ballot title's second bullet uses the phrase "add additional school safety requirements" to summarize several detailed safety measures that span six pages of the act. The ballot title, which does not even attempt to summarize the new safety measures, merely alludes to the fact that the act creates new school-safety requirements. Likewise, the act contains detailed rules governing student success plans. Rather than summarizing those rules, the ballot title vaguely describes the general topic: "add student success plan requirements." Nothing about that description summarizes what the act adds to the plan requirements. Most of the proposed summaries suffer from this same problem. Since these topical labels do not even attempt to summarize what the act actually does, the ballot title is insufficient.

• Inaccurate summaries. Some of the proposed summaries in the ballot title are inaccurate or misleading. For example, the first bullet says the underlying act gives "school superintendents and principals authority to make all employment-related decisions." This implies that the act grants superintendents and principles unfettered discretion employment decisions. But the section of Act 237 I assume this language is intended to summarize does not grant unfettered discretion. Rather, on page 5, lines 24-31, the discretion is limited to considering one's performance, effectiveness, and qualifications, but not seniority. This example is meant to be illustrative not exhaustive.

• Missing summaries. The ballot title contains no summary of several provisions. For example: (1) on page 5, lines 11-19, the act requires each school district to adopt rules that "require a public school district superintendent to consult with teachers...before making any decisions regarding the hiring or placement of a principal at the public school..."; (2) on pages 40-41, the act requires certain performance targets for superintendents; (3) on pages 81-82, the act triples the tax credit available for contributions to the Philanthropic Investment in Arkansas Kids Program; and (4) on pages 103-04, the act expands the required background checks to include volunteer coaches and increases superintendents' reporting obligations regarding volunteer coaches. Your proposed ballot title never mentions these provisions. These examples are meant to be illustrative not exhaustive.

• Confusing lead-in language. The ballot title attempts to summarize the act in separate clauses that flow from the following lead-in language: "Major provisions include...." When this lead-in language is combined with the openers in each clause, the result is confusing and ungrammatical. This is clear when one reads the lead-in language together with the second bullet: "Major provisions include: ... add additional school safety requirements." The same problem is evident with the third bullet: "Major provisions include: ... implement literacy screeners for kindergarten thru [sic] third grade...." Nearly every proposed summary suffers from this same disjointedness between the lead-in language and the proposed summaries.

These foregoing four sets of issues constitute further reasons why I must reject the ballot title. If you choose to submit a redesigned draft, all the issues noted above are essential for you to consider. Since the popular name and ballot title require such a significant redesign, I have not attempted to identify every issue with this version of your original draft.

Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General