Can the AG certify a ballot title when the proposed initiated act is written as a narrative explanation rather than as legislation?
Plain-English summary
This is the second AG opinion on the same proposed antique-vehicle-tags initiated act. After the AG rejected the first version in Opinion 2023-098, sponsor David Dinwiddie revised the text and resubmitted. The AG rejected again, citing two problems with the revised version.
Problem one: enacting clause used incorrectly. The Arkansas Constitution (Art. 5, § 1) requires every statewide initiated act to begin "Be It Enacted by the People of the State of Arkansas." Everything that follows the clause is the law being enacted. The revised draft did include the clause, but immediately after it placed a narrative description of what the proposal would do, plus partial quotations from two state statutes. That structure left the AG unable to tell what the voters would actually be enacting: the narrative description? The partial quoted statutes? Both? Without that clarity, the AG cannot certify a ballot title that accurately summarizes the change.
Problem two: narrative drafting style. The revised text was written as prose explanation rather than as legislation. The opening line read, in effect, "Be it Enacted by the People of the State of Arkansas, A Ballot Initiative to allow any person…." Read literally, voters would be enacting "a ballot initiative" rather than enacting the bill that the initiative proposes. And because the text never identified the specific changes to existing law (no strikethrough showing what is being repealed, no underline showing what is being added), the AG could not determine the full scope of the change being proposed.
The AG's recommendation: use professional legislative-drafting conventions. The General Assembly's professional bill drafters use strikethrough and underline to show how existing statutes change. Examples of bills drafted this way are available on the legislature's website. That style is what makes a ballot title reviewable.
This opinion ends a chain that started with Opinion 2023-098. Both rejections share the same root cause: the sponsor wrote the proposal in plain English, narrative form rather than as legislation. A successful initiated-act draft has to read like a bill, not like an op-ed about a bill.
What this means for you
Ballot initiative sponsors
If you have any plausible path to professional legislative drafting (a sympathetic legislator's staff, a law professor, a bar association volunteer), use it. Your odds of getting through AG review on the first or second try are dramatically higher when the underlying text follows the conventions the AG and the courts expect.
The structure of an initiated act should look like this: a title, the enacting clause, then numbered or sectioned amendments to existing Arkansas Code. If you are amending § 27-14-1701 (or whatever the antique-tags statute is), the draft should quote the current statute with strikethrough on what you would remove and underline on what you would add. If you are creating a new section, label it as a new section and draft it in formal statutory style.
Do not write your draft as a press release or as a narrative description of what the proposal "would do." That style does not give the AG the information needed to certify a ballot title.
Civic organizers
When you are mobilizing volunteers around a citizen initiative, build legal drafting into your timeline. Treat AG certification as a prerequisite that takes weeks or months, not days. Plan for at least one rejection cycle. The AG's rejections include drafting feedback, so each rejection is also free editorial input. Use it.
Legislative drafters and law students
This opinion is a useful illustration of why drafting conventions matter. The substantive policy (let owners of 25-plus-year-old cars get antique tags) is simple. But the form (narrative explanation vs. coded amendment to statutes) determines whether the proposal can be put to voters at all. A clean draft of this same idea would probably take a competent drafter under an hour.
State legislators
If you receive constituent requests to support a citizen initiative, look at the underlying text. If it is in narrative form, the constituent likely needs help finding professional drafting assistance before the proposal can move. Pointing them to your staff drafters or to a law school clinic can save them months of frustration.
Common questions
The AG keeps rejecting my proposal. Is the AG hostile to my idea?
The AG cannot consider the merits of the policy under A.C.A. § 7-9-107. The job is procedural review of the form. If you keep getting rejected, the issue is form, not substance. The rejection opinion will tell you what to fix.
Can I file my own draft without using a professional drafter?
You can, but expect rejection unless you understand legislative drafting conventions. The AG's job is to ensure the ballot title accurately summarizes what is being enacted, and that requires the underlying text to be drafted as legislation.
What's wrong with using a narrative description?
A narrative description is one person's summary of what the proposal would do. Voters need to know what statutory change they are voting on, not a sponsor's interpretation. A formal amendment style (showing the existing statute with proposed strikethroughs and additions) makes the change reviewable; a narrative does not.
Can I just hire a private attorney to draft this for me?
Yes. An election or legislative-drafting attorney can draft initiated acts. The cost is usually modest compared to the cost of multiple rejection cycles. Some bar associations and civic groups also offer drafting assistance for citizen initiatives.
What happens if I keep getting rejected?
Each cycle restarts the 10-business-day AG review window. There is no statutory limit on the number of submissions. But practically, you have a finite signature-collection window before the next election, and each rejection cycle eats into it. After two or three rejections, most sponsors retain professional help or set the proposal aside until the next election cycle.
Is the AG's interpretation of the enacting-clause problem too strict?
The Arkansas Supreme Court in U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994), confirmed that Amendment 7 requires an enacting clause for citizen-initiated bills. The reason is constitutional: under Amendment 7, the people are doing what the legislature would otherwise do, and the enacting clause is what makes the resulting text law. The clause cannot just be cosmetic; it has to actually introduce the operative provisions of law being enacted. The AG's reading is consistent with that constitutional structure.
Background and statutory framework
A.C.A. § 7-9-107 is the controlling statute for ballot-title certification. The substantive standards for popular names and ballot titles are spelled out in detail in Opinion 2023-098 (the prior rejection of the same sponsor's draft). This opinion incorporates that earlier opinion by reference.
The constitutional anchor is Article 5, § 1 of the Arkansas Constitution, which contains the enacting-clause requirement. U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994), interpreted Amendment 7's "bill" language: a bill is "a draft of an act of the legislature before it becomes law," and under Amendment 7 the people enact bills into laws by direct vote. That case is an Arkansas Supreme Court decision (Ark. Reports + S.W.2d).
The AG references the legislature's website as a source of professionally drafted bills that show the strikethrough/underline conventions. Sponsors with no drafting background can pull example bills as templates.
Citations
- A.C.A. § 7-9-107 (Attorney General review of initiated acts)
- Ark. Const. art. 5, § 1 (enacting clause requirement)
- U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 262–63, 872 S.W.2d 349, 355 (1994)
- Ark. Att'y Gen. Op. 2023-098 (prior rejection of earlier draft of same proposal)
Source
Original opinion text
Opinion No. 2023-103
November 13, 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. In Opinion No. 2023-098, I
rejected the prior version of your proposed initiated act. You have now revised your
proposal and submitted it for certification.
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
A Ballot Initiative to allow any person who owns an automobile that is a
model year Twenty-Five (25) years or older to register the vehicle as an
Antique and Apply for Antique Automobile License Tags.
Ballot Title
A Ballot Initiative to allow any person who owns an automobile that is a
model year Twenty-Five (25) years or older to register the vehicle as an
Antique and Apply for Antique Automobile License Tags.
2. Rules governing my review. In Opinion No. 2023-098, I explained the rules governing
my review and the specific rules governing popular names and ballot titles. Rather than
repeat those rules here, I refer to you to that opinion, which I have attached for your
reference.
3. 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 of ambiguities in the text of your proposal. Specifically,
the text of your proposal contains two significant problems that prevent me from ensuring
its provisions are adequately summarized in a ballot title:
- Enacting clause: As I noted in Opinion No. 2023-098, 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." Your prior submission
lacked this clause entirely, and your current submission uses it in a way that renders
your intent unclear. Everything that follows an enacting clause is the law to be
enacted. Your enacting clause precedes a narrative description of what your
proposal would do and partial quotations from two state statutes. It is unclear to me
whether you intend these partial quotations to be enacted. This lack of clarity
prevents me from ensuring that your ballot title, or any ballot title I would
substitute, is not misleading.
- Narrative description: The text of your proposal is written in a narrative style that
appears to be an attempt to explain what would happen if your proposal were
enacted. For example, your text begins confusingly: "Be it Enacted by the People
of the State of Arkansas, A Ballot Initiative to allow any person…." Under this
language, the people would be enacting "a ballot initiative," rather than a bill
proposed in a ballot initiative. In addition, because your text never delineates the
exact changes that would be made to the existing law, I cannot determine the full
extent of the changes you are proposing. Therefore, I cannot ensure that your ballot
title, or any ballot title I would substitute, is not misleading.
The foregoing issues are sufficient grounds to reject your proposed popular name and ballot
title. Since you are proposing what Amendment 7 refers to as a "bill," you may wish to
review examples of bills filed by legislators and drafted by professional drafters. These
examples, which are available at the legislature's website, demonstrate how proposed
statutes indicate the provisions of current law to be stricken and what new provisions will
be added. This manner of legislative drafting provides the clarity needed to ensure your
ballot title is not misleading.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General