What does the Arkansas AG look for when reviewing a popular name and ballot title for a citizen-initiated act?
Plain-English summary
David Dinwiddie submitted a proposed initiated act to the AG for ballot-title certification. The proposal would let owners of vehicles 25 years or older apply for antique license tags. The AG rejected the submission. The core problem: the proposed ballot title was a copy of the popular name. A ballot title has to actually summarize the substance of the measure so a voter in the booth can understand what they are voting on. Repeating the popular name does not satisfy that requirement.
The AG also flagged five drafting problems with the underlying text:
- No enacting clause. Article 5, § 1 of the Arkansas Constitution requires every statewide initiated act to begin with the language "Be It Enacted by the People of the State of Arkansas." Dinwiddie's draft lacked it. A measure without that clause would be declared insufficient if challenged.
- No relation to existing law. The text did not show how the proposal would amend or relate to existing antique-tag and registration statutes. Without that, the AG cannot draft a ballot title conveying the scope of the change.
- Problematic effective date. The text said the measure would take effect July 1, 2024, but voters would not vote on it until November 2024. That raises the question of whether the proposal is meant to be retroactive, which would itself need to be disclosed in the ballot title.
- Subject-verb incompatibility. The text said "Any Motor Vehicle that is a model year Twenty-Five (25) years or older, may Apply for Antique Automobile License Tags." A motor vehicle cannot apply for a license plate; only a person can.
- "Tags" and "registration" used interchangeably. Under current Arkansas law, vehicle registration and license-plate issuance are related but legally distinct processes. Conflating them without clarification leaves the AG unable to confirm what the measure actually does.
This is a process opinion, not a merits opinion. The AG's job under A.C.A. § 7-9-107 is to review the form of the ballot title and popular name; the AG is not authorized to consider whether the underlying policy is good or bad.
What this means for you
Ballot initiative sponsors
Treat the popular name and ballot title as separate drafting jobs. The popular name is a short, plain-language identifier. The ballot title has to summarize the actual changes the measure makes to existing law, in language a voter can understand inside the 10-minute statutory voting window (see A.C.A. § 7-5-309(b)(1)(B)). Submitting the same string for both is a fast path to rejection.
Before you submit, run a checklist against your text:
- Does it begin with "Be It Enacted by the People of the State of Arkansas"?
- Does it identify the existing statutes it would amend, repeal, or supplement?
- Is the effective date workable given that the vote happens in November of an even year?
- Are subjects and verbs grammatically compatible?
- Are technical terms ("registration," "tags," "title," etc.) used consistently with their meaning in current Arkansas Code?
If you cannot answer yes to all five, expect rejection. The AG provides drafting feedback in a rejection opinion, so the rejection itself is useful even when frustrating: it tells you what to fix before resubmitting.
Election lawyers and civic organizers
When you advise initiative sponsors, push them to use professional bill drafters or legislative drafting services rather than writing prose narrative. The Arkansas General Assembly's bill drafters use formal strikethrough and underline conventions to show changes to existing law. That style is what the AG and the courts expect because it makes the substantive change reviewable.
Voters and civic-minded citizens
A rejected ballot title is not the end of the road. Sponsors typically revise and resubmit. Watch for follow-up opinions from the same sponsor (here, the same sponsor came back with a revised proposal in Op. 2023-103, also rejected).
Law students studying direct democracy
This opinion is a clean illustration of three intersecting legal frameworks: the constitutional enacting-clause requirement (Ark. Const. art. 5, § 1), the statutory ballot-title rules (A.C.A. § 7-9-107), and the Arkansas Supreme Court's cases on what makes a ballot title "misleading," "partisan," or insufficiently informative.
Common questions
Why does the AG reject so many ballot titles? Is the office hostile to direct democracy?
The opinion explicitly says the AG cannot consider the merits of the measure. The job is procedural: confirm the title and text do what the statute and the case law require, so voters can make an informed choice. The Arkansas Supreme Court has set a high bar (no misleading tendency, no partisan coloring, must convey the scope of the change) and the AG enforces that bar. Sponsors who use professional drafters generally clear it on the first or second submission.
Can I just copy my popular name into the ballot title field?
Almost never. The popular name is a label; the ballot title is a summary. Even if your popular name is descriptive, it is unlikely to satisfy the summary requirement on its own. Plan to write two separate documents.
What happens if I get the enacting clause wrong?
A measure without the constitutional enacting clause is "legally insufficient" and can be struck down by a court even if it passes. The AG will not certify a ballot title for a measure that lacks the clause, so the issue typically gets caught at this stage. Better to fix it now than to win at the polls and lose in court.
Can the AG just rewrite my ballot title for me?
Sometimes. A.C.A. § 7-9-107(d)(1) lets the AG "substitute and certify a more suitable and correct" title. But the AG has held (and the courts have endorsed) that this power does not extend to crafting an "independent product" when the underlying text is too unclear or defective. If the substantive draft has fundamental problems, the AG must reject and instruct the sponsor to redesign.
Is there any deadline for the AG to respond?
Yes. Within ten business days of receiving the original draft, the AG must approve and certify, substitute and certify a corrected version, or reject and instruct the sponsor to redesign. See A.C.A. § 7-9-107(d)(1) and (e).
Background and statutory framework
A.C.A. § 7-9-107 is the gateway statute for statewide initiated measures. Sponsors submit the original draft of the measure, the proposed popular name, and the proposed ballot title. The AG has three options within ten business days: approve, substitute, or reject.
The popular name is a useful legislative label. It need not contain detail, but it cannot be misleading or partisan: see 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). Popular name and ballot title are read together for sufficiency: May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004).
The ballot title must impartially summarize the measure: Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980). Technical terms not readily understood by voters can render the title insufficient unless defined: Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160. Material that qualifies as an "essential fact which would give the voter serious ground for reflection" cannot be omitted: Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994). The title cannot exceed reasonable length given the 10-minute statutory voting window in A.C.A. § 7-5-309(b)(1)(B).
The title must be free from misleading tendency by amplification, omission, or fallacy, and free from partisan coloring: Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). And it must convey "an intelligible idea of the scope and significance of a proposed change in the law" (same case). When the text of the proposed measure itself is unclear or ambiguous, the AG cannot ensure the title is accurate: Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000).
The reporters in these cases (Ark. and S.W.2d/S.W.3d) confirm Arkansas Supreme Court decisions throughout.
Citations
- A.C.A. § 7-9-107 (Attorney General review of initiated acts and amendments)
- A.C.A. § 7-9-107(a) (sponsor submission of original draft)
- A.C.A. § 7-9-107(b) (definition of original draft)
- A.C.A. § 7-9-107(d)(1) (approve and certify, or substitute)
- A.C.A. § 7-9-107(d)(2) (brief and concise statement requirement)
- A.C.A. § 7-9-107(e) (rejection grounds)
- A.C.A. § 7-5-309(b)(1)(B) (10-minute voting limit)
- Ark. Const. art. 5, § 1 (enacting clause requirement)
- Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950)
- Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976)
- Moore v. Hall, 229 Ark. 411, 414–15, 316 S.W.2d 207, 208–09 (1958)
- May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004)
- Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980)
- Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167
- Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994)
- Plugge v. McCuen, 310 Ark. 654, 658, 841 S.W.2d 139, 141 (1992)
- Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990)
- Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 250, 884 S.W.2d 605, 610 (1994)
- Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000)
- Ark. Att'y Gen. Ops. 2023-029, 2018-112, 2013-112 (AG cannot craft an independent product)
Source
Original opinion text
Opinion No. 2023-098
October 18, 2023
Mr. David E. Dinwiddie
8608 Princeton Pike
Pine Bluff, Arkansas 71602
Dear Mr. Dinwiddie:
I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the
popular name and ballot title for a proposed initiated act.
My decision to certify or reject a popular name and ballot title is unrelated to my view of
the proposed measure's merits. I am not authorized to consider the measure's merits when
considering certification.
1. Request. Under A.C.A. § 7-9-107, you have asked me to certify the following popular
name and ballot title for a proposed initiated act:
Popular Name
An Initiated Act to Allow Vehicles Twenty-Five (25) Years or Older to
Apply for Antique Automobile License Tags
Ballot Title
An Initiated Act to Allow Vehicles Twenty-Five (25) Years or Older to
Apply for Antique Automobile License Tags
2. Rules governing my review. Arkansas law requires sponsors of statewide initiated
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 and
correct ballot title and popular name."
- 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.
3. 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.
4. Rules governing the ballot title. The ballot title must summarize the proposed act. 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 impartially
summarize the measure's text and give voters a fair understanding of the issues presented.
The Court has also disapproved the use of terms that are "technical and not readily
understood by voters." Ballot titles that do not define such terms may be deemed
insufficient.
Additionally, 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. 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.
Finally, the Court has held 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. Where the effects of a proposed
measure on current law are unclear or ambiguous, I am unable to ensure the popular name
and ballot title accurately reflect the proposal's contents until the sponsor clarifies or
removes the ambiguities in the proposal itself.
4. Application. Having reviewed the text of your proposed initiated act, as well as your
proposed popular name and ballot title, I have concluded that I must reject your proposed
ballot title as misleading because it makes no attempt to summarize the measure's text in a
way that complies with the above law. As my predecessors and I have noted many times,
although the Attorney General is authorized to "modify a proposed ballot title to render it
a more accurate summary" of the underlying measure, the Attorney General is "not
authorized to craft a ballot title that amounts to an independent product."
Although the foregoing issue is a sufficient basis to reject your proposed ballot title, I have
also noted the following additional issues with your text that would need to be corrected
so that, if you chose to submit a revised proposal, a ballot title could be drafted properly:
- No enacting clause: Our state constitution requires the following language be
included in the text of all statewide initiated acts: "Be It Enacted by the People of
the State of Arkansas." Because your text lacks this enacting clause, a court would
declare it legally insufficient.
- Impact on existing law: Because the text of your measure makes no attempt to
reference how it would relate to existing law on the same subject matter, it would
be difficult to ensure the ballot title meets the Arkansas Supreme Court's
requirement that ballot titles convey the scope of the proposed change in law.
- Effective date: Your text states that if the measure is approved by voters, it "shall
go into effect July 1st, 2024." That date is several months before the date on which
voters will determine whether to approve the measure. Therefore, this language
raises the question whether you intend the proposal to be retroactive. If so, that
would need to be noted in the ballot title.
- Subject/verb incompatibility: The main provision in the text of your proposal
contains a subject and verb that are incompatible: "Any Motor Vehicle that is a
model year Twenty-Five (25) years or older, may Apply for Antique Automobile
License Tags." (Emphases added.) A "motor vehicle" cannot "apply for" a license
plate.
- Registration vs. license plates: The text of your proposal seems to use "tags" and
"registration" interchangeably. Under current law, the process to obtain license
plates and vehicle registration are related, but they have different rules and different
consequences for noncompliance. If you intend to collapse those two processes for
purposes of antique automobiles, then that is not entirely clear from your current
text. And such a change would certainly need to be noted in 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 draft.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General