Did the Arkansas AG approve the LEARNS Act referendum ballot title for circulation, and what's the catch?

Plain-English summary

Citizens for Arkansas Public Education and Students wanted to put a referendum on the Arkansas ballot to approve or reject Act 237 of 2023 (the LEARNS Act, the school choice and education overhaul law signed by Governor Sarah Huckabee Sanders earlier in 2023). Under A.C.A. § 7-9-107, sponsors must submit a popular name and ballot title to the Attorney General before circulating petitions for signatures. The AG must certify the popular name and ballot title (or substitute one, or reject and ask for a redesign) within ten business days.

Three submissions, three answers. The sponsors had previously submitted two versions. In Opinion 2023-029 (the first review), the AG concluded the popular name was sufficient but the ballot title (then 742 words) could not be certified. The third version, certified in this opinion, runs 8,154 words across 16 pages.

Why the AG certified. The AG can reject a ballot title only if it is "misleading" or if a "for" vote actually accomplishes the opposite of what voters intend. The third version essentially copies and pastes from nearly every section of Act 237. Cut-and-paste from the act itself is hard to call misleading. So the AG certified.

The big caveat. This is unusual: the AG used the certification opinion to flag that the ballot title is almost certainly vulnerable to legal challenge. The Arkansas Supreme Court has repeatedly held that ballot titles must be brief enough that voters can read and understand them in the time allowed in the voting booth (currently ten minutes). The Court has invalidated ballot titles for length and complexity at 550 words, 587 words, 709 words, and 727 words. The LEARNS Act referendum ballot title is 8,154 words, which the AG noted is "almost certainly" too long under existing precedent.

The AG's posture is essentially: under § 7-9-107, my power is limited to checking for misleading content, not to rejecting on length grounds. So I am certifying because that is the most I can do at this stage. But anyone who collects signatures based on this ballot title risks the Arkansas Supreme Court invalidating the entire effort later.

The Court's "all-encompassing measure" doctrine. From Page v. McCuen (1994): some underlying measures are "so all-encompassing that to include every important factor of the proposal in the ballot title would cause the ballot title to be so complex, detailed, and lengthy that the Arkansas voter could not intelligently make a choice on the title within [the time allowed in the voting booth]." When that happens, the measure itself precludes writing an acceptable ballot title. Whether the LEARNS Act qualifies is a question the Arkansas Supreme Court would have to decide.

The deeper takeaway: certification under § 7-9-107 is not a clean bill of health. Sponsors of broad, complex referenda face a structural problem: the more the underlying measure does, the harder it is to summarize fairly and briefly. The AG's certification is a procedural step, not a guarantee that the courts will let the petition stand.

What this means for you

Sponsors of statewide referenda or initiatives

Plan for the length problem early. The Arkansas Supreme Court has invalidated ballot titles in the 500-700 word range for being too long. If the underlying measure is large, three structural responses can help:
1. Narrow the measure. A shorter, more focused statute or amendment is easier to summarize.
2. Group related provisions. A summary that captures the policy structure is fairer than one that itemizes every section.
3. Risk-manage the certification. Ask the AG (or your election counsel) to flag length and complexity issues before you start collecting signatures, not after.

If you proceed despite a length warning, your signature-collection investment is at risk. A successful Arkansas Supreme Court challenge can void the petition entirely, leaving sponsors with sunk costs and no measure on the ballot.

Voters reviewing a ballot title

If a ballot title looks impossibly long when you encounter it (in the voting booth or on a circulating petition), that is a real legal problem and not just a personal observation. The Arkansas Supreme Court has invalidated titles at far shorter lengths than the LEARNS Act referendum. You can ask the petition circulator how the petition has dealt with the length issue.

If you sign a petition that is later invalidated for length and complexity, your signature does not "count" toward putting the measure on the ballot. The work product is lost.

Election attorneys representing sponsors or challengers

This opinion is a near-roadmap for a length-and-complexity challenge to the LEARNS Act referendum. The AG himself flagged the issue, and the cited cases (Page v. McCuen, Christian Civic Action Committee v. McCuen, Dust v. Riviere) provide the doctrinal framework. The 8,154-word figure compared to the 587-word figure invalidated in Page is striking.

For the sponsors' counsel, the response would need to focus on (a) Amendment 7's textual permissiveness for ballot titles, (b) any distinction between initiatives and referenda (the AG noted but rejected this), and (c) the practical impossibility of summarizing the LEARNS Act more briefly without omitting essential facts that would themselves render the title misleading. The double-bind argument is the strongest.

State legislators

The opinion highlights a structural tension: large omnibus statutes (like the LEARNS Act, which restructures large parts of Arkansas education law) may be effectively un-referendable. If the legislature wanted to limit the referendum power, omnibus drafting is one path. If the legislature wanted to preserve the referendum power, narrower bills are more reviewable.

If you wanted to amend § 7-9-107 to give the AG explicit authority to reject for length and complexity, that is a legislative option. The AG noted he is not currently authorized to do so.

News reporters and editors

The headline framing of this opinion would be: "AG approves LEARNS Act referendum ballot title but warns of length problem." Reporting that captures only the certification misses the AG's own caveat. Reporting that captures only the caveat misses that the petition can now circulate.

School choice advocates and education-policy watchers

The certification means the petition can now be circulated for signatures. The fate of the petition depends on (a) signature collection (sponsors need a constitutionally specified percentage of votes from the last gubernatorial election), and (b) any court challenge to the ballot title. The court challenge is the more likely failure mode given this AG's caveat.

Common questions

What does it mean that the AG "certified" the ballot title?
Certification is a procedural step under A.C.A. § 7-9-107. It allows the sponsors to begin collecting signatures on the petition. It does not guarantee that the petition will survive court challenges or qualify for the ballot.

Why does the ballot title length matter?
Arkansas voters have a limited time in the voting booth (ten minutes by statute, A.C.A. § 7-5-309(b)(1)(B)). The Arkansas Supreme Court has held that ballot titles must be readable in that time. A title voters cannot meaningfully read in the booth fails.

Can the LEARNS Act referendum get on the 2024 ballot?
The certification of the ballot title is one of several steps. Sponsors still need to (a) collect the required number of signatures, (b) survive any pre-election court challenge to the ballot title, and (c) meet other constitutional and statutory requirements. The length-and-complexity issue raised in this opinion is the most significant legal risk.

What's the difference between a referendum and an initiative?
A referendum asks voters to approve or reject a law that the legislature has already passed (Act 237 of 2023, here). An initiative is a new law proposed by the people directly. Different provisions of Amendment 7 govern each, but the ballot-title sufficiency rules are similar.

Was the AG required to certify?
Yes, given the limits of his role under § 7-9-107(d) and (e). The AG can substitute a more suitable popular name and ballot title, or reject for misleading content, or certify. Cut-and-paste from the underlying act is not misleading. Length is a separate issue the AG cannot address through this statute.

Can the AG be challenged in court for certifying?
Sponsors generally cannot challenge a certification (they got what they asked for). Opponents can challenge the ballot title itself in an action under Amendment 7 in the Arkansas Supreme Court. The AG is typically a respondent in such actions.

What is the LEARNS Act?
Act 237 of 2023 is a comprehensive Arkansas education law passed in early 2023. It includes provisions on school choice (vouchers/Education Freedom Accounts), teacher pay, literacy initiatives, school accountability, and other policy areas. The full text is available through the Arkansas General Assembly.

Background and statutory framework

Arkansas's referendum process is grounded in Amendment 7 to the Arkansas Constitution and implemented by A.C.A. § 7-9-107. Sponsors of a referendum measure must:

1. Submit the popular name and ballot title (along with the full text of the underlying measure) to the AG.
2. Receive AG certification (or substitution, or rejection-with-reasons) within ten business days.
3. Collect signatures on the certified petition.
4. Survive any pre-election challenges.
5. Meet the signature threshold and other requirements.

The AG's review under § 7-9-107(d)–(e) is limited to checking whether the popular name and ballot title are misleading or fail the "for" vs. "against" sense. Length and complexity, while doctrinally significant in Arkansas Supreme Court review, are not within the AG's certification power.

The Arkansas Supreme Court has developed extensive case law on ballot-title sufficiency. The key cases for length and complexity:
- Page v. McCuen, 318 Ark. 342 (1994): 587-word title for a 40-page measure invalidated.
- Christian Civic Action Committee v. McCuen, 318 Ark. 241 (1994): 709-word title invalidated.
- Dust v. Riviere, 277 Ark. 1 (1982): 727-word title invalidated.
- Scott v. Priest, 326 Ark. 328 (1996): 550-word title invalidated.
- Bailey v. McCuen, 318 Ark. 277 (1994): standard for what must be included in a ballot title.

Other cases address impartiality, partisan coloring, and "essential facts that would give the voter serious ground for reflection."

The "essential facts" rule from Bailey operates in tension with the brevity rule. A title must include essential facts (so voters know what they're voting on), but cannot be so long that voters cannot read it in the booth. Page recognized that some measures are too large to be referendable.

Citations

• A.C.A. § 7-9-107 (AG review of popular name and ballot title)
• A.C.A. § 7-9-109 (certification of popular name and ballot title)
• A.C.A. § 7-5-309(b)(1)(B) (ten-minute voting booth time)
• Ark. Const. amend. 7 (initiative and referendum power)
• Act 237 of 2023 (LEARNS Act, the underlying law to be referred)
• Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982)
• Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Walker v. Priest, 342 Ark. 410, 29 S.W.3d 657 (2000)
• Ark. Att'y Gen. Op. 2023-029 (rejecting prior version of this ballot title)
• Ark. Att'y Gen. Op. 2000-137 (cited as predecessor's similar warning)

Source

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

Original opinion text

Opinion No. 2023-038
June 5, 2023
Veronica McClane
Citizens for Arkansas Public Education and Students
352 School Road
Rose Bud, Arkansas 72137

Dear Ms. McClane:

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.

You have submitted a third version of your proposed measure to refer Act 237 of 2023. In Opinion No. 2023-029, I concluded that your popular name was sufficient as submitted and that your ballot title could not be certified. The prior version of your ballot title was 742 words. The current version, which is 8,154 words and spans 16 pages, is attached.

In what follows, I:

• 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.

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 they comply with 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. The General Assembly has empowered me to reject or modify a ballot title either (1) when it is "misleading" or (2) when a vote "for" is actually a vote against (or vice versa). Both problems were present in your first submission. While your second submission resolved the problem of the impact of a vote for or against the measure, the submission remained misleading in several ways. Now, in your third submission, your ballot title essentially cuts and pastes from nearly every section of the LEARNS Act. Therefore, I cannot conclude that it is misleading. Under the scope of the review the General Assembly has given me, I must certify the attached popular name and ballot title as you have submitted them.

But please be advised that my certification under A.C.A. § 7-9-109 that your ballot title is no longer misleading does not necessarily mean your ballot title meets all standards the Arkansas Supreme Court has interpreted Arkansas law to require. As several of my predecessors have noted when certifying certain lengthy and complex ballot titles, the Court has repeatedly warned sponsors of statewide measures about their ballot titles' length and complexity. A ballot title's length and complexity has been a key issue in several cases, which have considered complex ballot titles with the following word counts: 550 words; 587 words; 709 words; 727 words; 735 words; 900 words; 994 words; and 1,000 words. In most of these cases, the Court has held that a ballot title's length alone cannot render it legally insufficient but "is only one consideration in determining the sufficiency of a ballot title." Nevertheless, the Court has declared that, it is possible for the underlying measure to be "so expansive that it precludes the writing of an acceptable ballot title." This would occur, the Court said, when the underlying measure to be summarized is "so all-encompassing that to include every important factor of the proposal in the ballot title would cause the ballot title to be so complex, detailed[,] and lengthy that the Arkansas voter could not intelligently make a choice on the title within [what was at the time] the five minutes [now ten minutes] allowed in the voting booth." This warning was related to a 587-word ballot title that summarized a 40-page underlying measure. Of the word counts referenced above, the Court has used length and complexity as a major factor in declaring ballot titles insufficient when the titles were 550 words, 587 words, 709 words, and 727 words.

In contrast to these ballot titles ranging from 550 words to 727 words that the Court considered to be too complex and lengthy, your ballot title, at 8,154 words and 16 pages, is the longest in Arkansas history. If the Court considered a 587-word title too complex and lengthy that a voter likely would not be able to grasp it within the time allowed to vote, then that is almost certainly the case for one that is nearly 14 times longer. Granted, the cases considering the length and complexity of ballot titles generally consider initiated measures, ones over which the sponsor can control the length and complexity of the underlying measure on which the people are being asked to vote. Nevertheless, the Court has not interpreted Amendment 7 as having a different set of rules for referenda. And the Court's rationale behind its conclusions about the complexity and length of ballot titles for initiatives seems to apply with equal force to ballot titles for referenda.

Therefore, like one of my predecessors, I must highlight the "particular hazards attendant to the preparation of a ballot title for a lengthy and complex proposal" like you are attempting to refer to the voters. As the Court has noted, some measures "preclude the writing of an acceptable ballot title." But the legislature has not authorized me to reject a ballot title because of its length and complexity. As my predecessor noted, whether your proposal is the kind for which it is impossible to write a sufficiently complete and brief ballot title "is a matter to be decided by the Arkansas Supreme Court."

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

Sincerely,

TIM GRIFFIN
Attorney General