Did the Arkansas AG certify Lancaster's proposed Hand-Marked Paper Ballots constitutional amendment?

Plain-English summary

Clinton Lancaster's Hand-Marked Paper Ballots Amendment proposed major changes to Arkansas elections: requiring all ballots to be paper with security features, marked by hand in permanent ink, counted only after polls close, with vote tabulation verified by "human intelligence" before certification, no internet/Bluetooth/wireless connections in elections, and majority-plus-one vote winners with runoffs.

The AG rejected the submission. The defects were many and structural:

Defects sufficient for rejection:

• Allocation of funding. The popular name and ballot title both say the amendment "allocates funding" for elections. But the actual text contains two conflicting statements about funding: section 2 says the amendment's "intent" is to "allocate funding," while section 11 says the General Assembly "shall...allocate funding." These contradict each other and neither actually allocates anything.
• Enacting clause. The draft included "Be It Enacted by the People of the State of Arkansas," language constitutionally required only for initiated acts (statutes), not initiated constitutional amendments. (Ark. Const. art. 5 § 1; U.S. Term Limits v. Hill, 316 Ark. 251 (1994).) Misuse creates ambiguity about whether the proposal is a bill or an amendment.
• "Human intelligence." The text defines this as "the thought and physical process of a human being instead of the thought or process of a computer or an artificial intelligence." Confusing: does this mean a human cannot use a calculator or Excel spreadsheet? The answer matters because Arkansas law (A.C.A. §§ 7-5-602(c), 7-5-603(2)(A), 7-5-606) currently requires paper ballots to be run through electronic tabulators before any hand count.
• Disabled voter definition. The proposal defines "disabled voter" by reference to the federal Help America Vote Act, but Arkansas law (A.C.A. § 7-5-311) defines "disability" more broadly to include sensory impairment. Unclear whether the proposal would intentionally narrow Arkansas's protection for sensory-impaired voters.
• "Public office" vs "electable position." Section 9(a) uses both terms, which usually mean the same thing. Unclear whether the redundancy is intentional or whether different meanings were intended.
• Issue elections vs. "races." Section 9(c) tries to apply majority-plus-one rules to "initiatives, referenda, measures, matters, or issues" using the term "race," which typically refers to candidate contests, not yes/no votes.
• Federal-law exception for disabled voters. Section 4 says disabled voters may "vote by voting machines in the same manner as during federal elections." But the rest of the amendment repeals voting machines. Unclear if this is meant as a carve-out or just a contradiction.
• Secrecy of votes. Amendment 50 § 2 currently requires secrecy of individual votes. The proposal repeals that section without expressly preserving the secrecy requirement. Unclear whether sponsors intended to remove the constitutional secrecy guarantee (which Amendment 81 also protects).
• Mandatory vs. permissive provisions. Section 11 says all the proposal's provisions "shall be treated as mandatory," but other sections use permissive language. Internal contradiction.

Additional flagged concerns (not the rejection basis but worth fixing):

• Popular name length. 152 words. Reads like a second ballot title, not a popular name.
• Partisan coloring in popular name. Use of "integrity" is salesmanship, not description (Bradley v. Hall, 220 Ark. 925; Christian Civic Action Comm. v. McCuen). Voters are entitled to form their own conclusion on whether the amendment promotes integrity.
• Partisan coloring in ballot title. Use of "to ensure free, fair, and secure elections" is similar slogan-like coloring.
• Runoff elections. The proposal would change A.C.A. § 7-5-106's municipal runoff procedures (which currently allow no-runoff if a candidate receives 40% of votes plus 20% margin over second place). The ballot title would have to disclose this change.
• Severability misuse of "repeal." Section 12 says any unconstitutional part "shall be repealed and treated as though it was never a part of the amendment." But repeal is a legislative power, not a judicial one.
• Grammatical issues. Comma-only ballot title in a multi-clause series, plus random capitalization.

This is part of a series. Lancaster's other 2023 ballot-title submission (the Absentee Voting Amendment, Op. 2023-109) faced a similar rejection on different but overlapping grounds.

What this means for you

Ballot initiative sponsors

This rejection is one of the most extensive opinions in the 2023 cycle. Lessons:

• Do not include an enacting clause in a constitutional amendment. (See also Op. 2023-109, Op. 2023-112.)
• Allocating funding requires actually allocating funding in the text. Stating that the General Assembly should allocate funding is not allocation.
• Define every operative term. "Human intelligence," "disabled voter," and "public office" all generated rejections because their scope was ambiguous.
• Cross-check your proposal against existing Arkansas statutes. The amendment would have implicitly repealed multiple sections of A.C.A. § 7-5-602 et seq., but the ballot title did not say so.
• Watch the secrecy-of-votes question. Repealing Amendment 50 § 2 without preserving secrecy would be a major change voters would need to know about.
• Avoid sales-pitch language. "Integrity," "free," "fair," "secure" are partisan-colored terms when used as labels rather than substantive descriptions.

Election security advocates

The substance of this proposal (hand-marked paper ballots, post-poll-close counting, no wireless connections) reflects a recognizable election-security agenda. The AG's rejection was a craft issue, not a policy disagreement. A future submission addressing each defect could potentially clear certification.

County clerks and election administrators

The proposal would have substantially rewritten Arkansas's election infrastructure: requiring paper ballots, prohibiting electronic tabulation before hand counting, banning wireless connections, and imposing a "human intelligence" verification step. Even when properly drafted, the operational impact would be significant. Stay aware of the cycle in case a successor draft is certified.

Disability rights advocates

The amendment's definition of "disabled voter" by reference to HAVA only would have narrowed Arkansas's existing protection for sensory-impaired voters under A.C.A. § 7-5-311. The AG flagged this. Future drafts should expressly cover the broader Arkansas definition.

Voting rights attorneys

The opinion is a useful citation cluster on partisan-coloring doctrine. Bradley v. Hall, 220 Ark. 925 (1952), defines partisan coloring as "a form of salesmanship." Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994), clarifies that the "voter is entitled to form" their own conclusion on whether language describes accurately. Johnson v. Hall, 229 Ark. 400 (1958), reinforces that the voter, not the proponent, makes that judgment.

State legislators

If the policy aims of this proposal are appealing, the legislative path is to enact statute changes through the General Assembly. The ballot-initiative path requires significantly more drafting precision.

Common questions

What is Amendment 50?
A 1964 constitutional amendment that authorized voting machines in Arkansas. Section 2 requires secrecy of votes. Section 4 deals with related matters. Lancaster's proposal would have repealed § 4 and substantially amended § 2.

What is Amendment 81?
A separate constitutional protection for the secrecy of votes, enacted in 2008. The AG noted the proposed text might also affect Amendment 81's scope.

What is "human intelligence" verification?
The proposal would have required vote tabulation to be verified by "human intelligence," meaning the thought and physical process of a human rather than a computer or AI. The AG's concern was that this could prohibit using common tools like calculators or spreadsheets in vote counting, which is unclear.

Why is "integrity" considered partisan coloring?
Because the term carries positive valence and implies the proposal will produce integrity, an outcome the voter cannot independently verify from the title. The AG, citing Bradley v. Hall, treats this as salesmanship.

Are hand-marked paper ballots a bad idea?
The AG took no position. Under A.C.A. § 7-9-107, the AG is forbidden from considering policy merits.

What's the issue with municipal runoffs?
A.C.A. § 7-5-106 sets specific runoff rules: a runoff occurs in a 3+ candidate race only if no one gets a majority or a 40% plurality with at least a 20-point margin over second place. Lancaster's proposal would have replaced these with simpler majority-plus-one rules, but the ballot title did not flag the change.

What was Op. 2023-109?
Lancaster's other rejected ballot-title submission in this cycle, addressing absentee voting and a wireless-voting ban. Different defects but similar craft issues.

Background and statutory framework

A.C.A. § 7-9-107. AG review of ballot initiatives. Three options: approve, substitute, or reject and instruct redesign.

Ark. Const. amend. 50. Authorizes voting machines and protects vote secrecy. Sections 2 and 4 were targeted by the proposal.

Ark. Const. amend. 81. Constitutional protection for the secrecy of votes.

Ark. Const. art. 5, § 1. Requires the enacting clause for initiated acts. Does not require an enacting clause for amendments (U.S. Term Limits v. Hill).

A.C.A. § 7-5-106(a)(2). Current municipal runoff rules.

A.C.A. § 7-5-311. Arkansas definition of "disability" for voting purposes, broader than the federal HAVA definition.

A.C.A. §§ 7-5-602(c), 7-5-603(2)(A), 7-5-603(2)(D), 7-5-606. Current Arkansas requirements for electronic vote tabulation.

Ballot title doctrine. Bailey v. McCuen, 318 Ark. 277 (1994); Wilson v. Martin, 2016 Ark. 334; Roberts v. Priest, 341 Ark. 813 (2000); Becker v. McCuen, 303 Ark. 482 (1990); Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994).

Partisan coloring doctrine. Bradley v. Hall, 220 Ark. 925 (1952); Johnson v. Hall, 229 Ark. 400 (1958).

Citations

• A.C.A. § 7-9-107 (AG review of ballot initiatives)
• A.C.A. § 7-5-106(a)(2) (municipal runoff rules)
• A.C.A. § 7-5-311 (Arkansas disability definition)
• A.C.A. §§ 7-5-602 through 7-5-606 (current electronic tabulation requirements)
• Ark. Const. amend. 7, 50, 81; art. 5, § 1
• Pafford v. Hall, 217 Ark. 734 (1950)
• Chaney v. Bryant, 259 Ark. 294 (1976)
• Moore v. Hall, 229 Ark. 411 (1958)
• May v. Daniels, 359 Ark. 100 (2004)
• Becker v. Riviere, 270 Ark. 219 (1980)
• Wilson v. Martin, 2016 Ark. 334
• Cox v. Daniels, 374 Ark. 437 (2008)
• Bailey v. McCuen, 318 Ark. 277 (1994)
• Plugge v. McCuen, 310 Ark. 654 (1992)
• Becker v. McCuen, 303 Ark. 482 (1990)
• Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994)
• Roberts v. Priest, 341 Ark. 813 (2000)
• U.S. Term Limits, Inc. v. Hill, 316 Ark. 251 (1994)
• Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952)
• Johnson v. Hall, 229 Ark. 400, 316 S.W.2d 194 (1958)
• Ark. Att'y Gen. Op. 2009-169, 2012-013, 2013-039, 2015-065, 2017-016, 2018-076

Source

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

Original opinion text

Opinion No. 2023-108
November 29, 2023
Clinton W. Lancaster
Attorney at Law
900 South Shackleford Road, Suite 300
Little Rock, Arkansas 72211

Dear Mr. Lancaster:

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 constitutional amendment.

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.

[Sections 1 through 4 of the opinion lay out the popular name and ballot title submitted, describe the AG's statutory review framework under A.C.A. § 7-9-107, the rules governing popular names, and the rules governing ballot titles. The full text of those sections appears in the source PDF.]

5. Application. Having reviewed the text of your proposed initiated amendment, as well as your proposed popular name and ballot title, I have concluded that I must reject your proposed popular name and ballot title and instruct you to redesign them. The following problems in the text of your proposed amendment prevent me from (1) ensuring your ballot title is not misleading or (2) substituting a more appropriate ballot title:

• Allocation of funding. The popular name and ballot title state that this proposed amendment will allocate funding for elections. But nothing in the proposed text allocates funding. Instead, your text contains two conflicting statements about the allocation of funding. Section 2 of your text states that the amendment's "intent" is, in part, to "allocate funding to effectuate this amendment." But section 11 of your proposed text states that the "General Assembly shall...allocate funding" to carry out the amendment. These conflicting provisions prevent me from ensuring that your ballot title's summary is not misleading.

• Enacting clause. While the state constitution requires proposed initiated acts to include an enacting clause—"Be it Enacted by the People of the State of Arkansas"—initiated constitutional amendments do not require enacting clauses. Therefore, as this office has repeatedly concluded, the inclusion of an enacting clause required for "bills" in your proposed constitutional amendment creates an ambiguity as to what the voters are being asked to consider, a bill or a constitutional amendment.

• "Human intelligence." The popular name, the ballot title, and the text of the proposed measure all contain the phrase "human intelligence," which the text defines as "the thought and physical process of a human being instead of the thought or process of a computer or an artificial intelligence." This language is confusing because the meaning of "thought and physical process" are unclear. Does this mean a human cannot use any machine or computer, such as a calculator or Excel spreadsheet, to aid in his or her "thought and physical process"? The answer to this question would surely give voters "serious ground for reflection." The answer is also important to determine which statutes would be supplanted by the amendment. For example, under A.C.A. § 7-5-602(c), paper ballots must be "run through an electronic vote tabulation device before a hand count is conducted." And A.C.A. § 7-5-606 specifies the requirements for "exhibit marking devices and electronic vote tabulating devices." Since your definition of the term "human intelligence" is unclear, I cannot ensure that the ballot title is not misleading.

• Definition of "disabled voter." The measure's text defines "Disabled Voter" as "a voter with a disability as that term is defined under the Help America Vote Act." But A.C.A. § 7-5-311 defines "disability" differently than federal law when it includes "sensory impairment." It is unclear whether you intend your definition of "disabled voter" to exclude those with sensory impairment as that term is used in § 7-5-311. If so, then this would be a change in law that may give voters "serious ground for reflection," requiring this change in law to be identified in the ballot title. But because it is unclear to me at this time whether you intend this result, I cannot ensure your ballot title is not misleading.

• "Public office" vs. "electable position." Section 9(a) provides that "[a]ll elections for public office or electable positions in city, county, or state government shall be conducted with voters selecting only one candidate for each race." Because you use both "public office" and "electable positions," which typically mean the same thing, it is unclear whether this redundancy is intended or whether you intend to give each a different meaning. Because this is unclear, I cannot be sure of your intent and cannot ensure your ballot title is not misleading.

• Issue elections. Most ballots can be mutually divided into elections regarding candidates or issues. Section 9(c) attempts to regulate the latter by providing that "[a]ll elections to amend the Arkansas Constitution as well as any city, county, or State government initiatives, referenda, measures, matters, or issues referred to the voters shall be conducted with voters making only one selection for each race." (Emphasis added.) This is confusing because "initiatives, referenda, measures, matters, or issues" are not generally considered "races." The use of the term "race," implies a contest between candidates, not a decision on whether to support or oppose an issue. Therefore, your use of the term "race" conflicts with the sort of elections this provision seems designed to regulate. In light of this conflict, I cannot be sure of your intent and cannot ensure your ballot title is not misleading.

• Effect of federal law. The second sentence of section 4 provides that "any disabled voter may also vote in county, city, or state elections by voting machines in the same manner as during federal elections pursuant to the Help America Vote Act." It is unclear to me how one votes by "voting machine" when the proposed amendment repeals the use of voting machines. Perhaps you intend this section to be an exception from the effect of your other provisions that remove voters' ability to use voting machines. If that is your intent, it is not clearly reflected in the text. That lack of clarity prevents me from ensuring your ballot title is not misleading.

• Secrecy of individual votes. Amendment 50, § 2 to the Arkansas Constitution currently requires that the secrecy of individual votes be maintained: "All elections by the people shall be by ballot or by voting machines which insure the secrecy of individual votes." The text of your proposed amendment would repeal the secrecy requirement in Amendment 50, § 2. Section 6 of your proposed text would replace Amendment 50, § 2 with the following language, none of which maintains the current "secrecy of individual votes": "All elections by the people in this State shall be by a paper ballot containing inherent security features which makes the paper ballot difficult to duplicate or counterfeit." This repeal might also be read as having the effect of repealing the provision of Amendment 81 to our constitution that protects the secrecy of votes. Yet your ballot title summarizes the proposed text as "ensur[ing] the secrecy of the votes cast on the ballot and the anonymity of the voter casting the ballot." You appear to believe that the method of voting required by your text would itself ensure the secrecy of individual votes. That may be true. But since it is unclear to me whether you intend to remove the constitutional right to the secrecy of individual votes, I cannot ensure your ballot title is not misleading.

• Legislative Implementation, Self-Executing clause. Section 11 of your proposed text conflicts with other provisions in your text. Section 11 states that "all its provisions shall be treated as mandatory." But there are provisions in the text itself that allow, rather than require, certain action. This contradiction prevents me from ensuring your ballot title is not misleading.

While the foregoing defects are sufficient grounds for me to reject your submission, please note that there are several other issues in your proposed measure that you may wish to correct or clarify:

• Popular name length. The popular name—at 152 words—is longer than a typical popular name. It instead reads like a second ballot title. Although this alone is not misleading, you may wish to significantly shorten the popular name to better meet the purpose of popular names as described above.

• Partisan coloring language in the popular name. It is my opinion that your proposed popular name contains impermissible "partisan coloring" language when it uses the word "integrity." The Arkansas Supreme Court has held that "partisan coloring" language is "a form of salesmanship" that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." The word "integrity," as used in the popular name (i.e., "protect the integrity"), gives voters only the impression that the proponents of the proposed amendment wish to convey—a "[s]teadfast adherence to a strict moral or ethical code...being unimpaired; sound[]." To paraphrase the Arkansas Supreme Court, the "[voter] is entitled to form" his or her "own conclusions" on whether the proposed measure promotes integrity.

• Partisan coloring in the ballot title. It is my opinion that the ballot title also contains impermissible "partisan coloring" language when it uses the words "to ensure free, fair, and secure elections." Such words, like a slogan, give voters only the impression that the proponents of the proposed amendment wish to convey—as if to vote otherwise is to ensure the opposite of those characteristics. Again, the "voter is entitled to form" his or her "own conclusions" on whether the proposed measure promotes elections that would be "free, fair, and secure."

• Runoff elections. Section 9 of your proposed text, specifically subsections (b), (d), and (f), contains language concerning when and how a runoff election occurs. Under those provisions, a runoff election must occur when no candidate receives "at least fifty percent (50%) plus at least one vote." This procedure would change the law as is it applies to municipal elections. Under A.C.A. § 7-5-106(a)(2)(A), a municipal runoff election occurs when "there are more than two" candidates in a given race and neither receives either "[a] majority of the votes cast" or "[a] plurality of forty percent." Further, under A.C.A. § 7-5-106(a)(2)(B), if a candidate in such a race does receive a plurality of 40% of the votes cast, then no runoff election occurs only if the candidate "obtain[ed] at least twenty percent (20%) more of the votes cast than the second-place candidate." Your proposed amendment would abolish these municipal runoff procedures. The ballot title would need to apprise voters of these changes in law.

• Severability clause. Section 12 of your proposed measure inaccurately states that "any part or subpart of this amendment...deemed to violate the federal constitution...shall be repealed and treated as though it was never a part of the amendment." The power of repeal belongs to the legislature, not the judiciary. This section should be reworded.

• Grammatical issues. Your ballot title only uses commas. But because of the length and complexity of your ballot title, which includes multiple instances of a series within a series, the use of semicolons would provide greater clarity and promote readability. Additionally, random capitalization appears throughout the text of your proposed amendment, which does not appear to serve any purpose. You may wish to correct this.

Because of the issues identified above, my statutory duty is to reject your proposed popular name and ballot title, stating my reasons therefor, and to instruct you to "redesign" your proposed constitutional amendment, popular name, and ballot title.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General