Did the Arkansas AG certify the Lancaster proposed constitutional amendment that would have rewritten absentee-voting rules and banned wireless voting?

Plain-English summary

Arkansas attorney Clinton Lancaster submitted a proposed constitutional amendment for AG certification. The amendment would have rewritten Arkansas's absentee-voting rules: setting a 30-day pre-election window, narrowing absentee eligibility to a list of specific situations (physical absence, hospitalization, incarceration, long-term care residency), banning ballot harvesting, prohibiting any tracking of absentee ballots once they leave the clerk's office, and forbidding the use of any internet, Bluetooth, or wireless connection in conducting elections.

To get on the ballot, the amendment had to be reviewed and certified by the Attorney General under A.C.A. § 7-9-107. The AG rejected the submission and instructed Lancaster to redesign it. The rejection identified four core defects:

1. Enacting clause used incorrectly. Lancaster's draft included "Be It Enacted by the People of the State of Arkansas" at the top, language the Arkansas Constitution requires for initiated acts (statutes), not for initiated constitutional amendments. The AG's office has long treated this misuse as creating ambiguity about whether sponsors intend a statute or an amendment.

2. "Physically absent from" was unclear. The draft would have allowed absentee voting only for voters "physically absent from" the relevant places. Absent from the polling place? Absent from the county? The text did not say, and the AG found this would give voters serious ground for reflection in the booth.

3. UOCAVA interplay was unclear. The draft tried to exempt military and overseas voters from its rules by referencing Amendment 51, § 9(i), but did not say which of the new restrictions applied to UOCAVA voters and which did not. Specifically: Arkansas law currently lets UOCAVA absentee ballots be counted up to 10 days post-election if executed by election day; Lancaster's draft would have prohibited counting any absentee ballot not present and being canvassed when polls close. The conflict was unresolved.

4. No exception for disability assistance with ballot handling. The draft allowed someone to mark a disabled voter's ballot but did not allow anyone else to handle, possess, or return the ballot on the voter's behalf. The AG flagged this as both ambiguous (intentional or oversight?) and as creating a likely violation of federal disability and voting-rights law (ADA, Voting Rights Act § 208).

The AG also flagged additional issues that were not strict grounds for rejection but should be cleaned up: the ballot-tracking ban was broader than the ballot title indicated; the limits on who can touch a ballot were broader than the title summarized; the severability section misused "repeal" (a power belonging to the legislature, not the courts); the runoff-elections language was ambiguous; the popular name was unusually long; and the ballot title needed semicolons for readability.

The AG was careful to say the rejection was about whether voters could understand what they were voting on, not about whether the policy was good or bad. Under § 7-9-107, the AG cannot consider the merits.

What this means for you

Ballot initiative sponsors

This rejection is a checklist of recurring problems. Avoid these in your own drafts:

• Do not include an enacting clause in a constitutional amendment. Article 5, § 1's "Be It Enacted by the People" language is for initiated statutes, not amendments. (See U.S. Term Limits v. Hill.)
• Define your spatial words. "Physically absent" needs a referent: from where? Without it, voters are guessing.
• If your amendment overlaps with federal preemption (UOCAVA, NVRA, ADA, VRA), spell out how you intend to coexist. The AG will ask. So will any opponent who challenges the title.
• If your amendment limits a category of voters (such as disability accommodations), include the carve-outs federal law requires, or expressly note in the ballot title that part of the amendment likely conflicts with federal law.
• A ballot title cannot be longer than what voters can reasonably read in the 10-minute booth limit. Long titles force you to drop content; dropped content invites a "misleading by omission" rejection.

The path forward when rejected: redesign the amendment text first, then fix the popular name and ballot title. Many of these defects originate in the underlying text, and you cannot summarize away an unclear text.

Election attorneys

The opinion is a useful citation cluster on ballot-title doctrine. Key holdings: ballot titles must be "honest and impartial" (Becker v. McCuen, 303 Ark. 482); cannot omit "essential facts which would give the voter serious ground for reflection" (Bailey v. McCuen, 318 Ark. 277); cannot use "technical and not readily understood" terms without definition (Wilson v. Martin, 2016 Ark. 334); and cannot be approved if the underlying text contributes to confusion (Roberts v. Priest, 341 Ark. 813).

The opinion also confirms the AG's three statutory options under § 7-9-107(d)–(e): approve, substitute and certify, or reject and instruct redesign.

Voter advocacy organizations

If you are concerned about an initiative's effect on absentee voting, this opinion shows the AG actively scrutinizes both stated and omitted impacts. The "no tracking once the ballot leaves the clerk's office" provision was flagged because the broader text would prevent voters from confirming that their own ballots were received.

Disability rights advocates

The AG specifically called out the missing accommodation for handling and returning ballots on behalf of disabled voters as a likely federal-law violation. This is the kind of text-level scrutiny a rejection enables. Any future absentee-ballot reform initiative in Arkansas must address ADA Title II and the Voting Rights Act § 208 (52 U.S.C. § 10508) right to assistance.

County clerks and election administrators

Lancaster's draft would have rewritten how absentee voting is conducted in Arkansas. The AG's rejection means the proposal does not advance to signature collection in this form. But the underlying policy aims (30-day window, eligibility limits, anti-harvesting, ballot-counting deadline at poll close, no wireless/internet voting) may return in revised drafts. Stay aware of the certification cycle so you can anticipate operational changes.

Overseas military voter advocates

The draft did not expressly preserve UOCAVA-required protections, including the ability to count a UOCAVA ballot up to 10 days post-election. Future drafts of similar amendments need clean carve-outs to avoid both federal preemption and the ballot-title ambiguity that doomed this version.

Common questions

Why does the AG review ballot titles?
Under A.C.A. § 7-9-107, the AG must review the popular name and ballot title of any proposed initiated measure before signature collection can begin. The review's purpose is to ensure voters get an accurate, impartial summary in the voting booth.

What can the AG do?
Three things: approve and certify as submitted; substitute a more suitable title and certify that; or reject and instruct the sponsor to redesign. Rejection is allowed when the title would be misleading or when a vote for the issue would actually be a vote for the opposite outcome.

What is UOCAVA?
The Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq. It guarantees absentee voting rights for active-duty military, their family members, and U.S. citizens overseas. Arkansas's Amendment 51, § 9(i) implements UOCAVA at the state level.

Why is the enacting-clause issue a recurring problem?
Because sponsors copy boilerplate from one form of initiative to another. Initiated acts (proposed statutes) need an enacting clause; initiated constitutional amendments do not, and including one creates ambiguity about whether the sponsor really intends a statute or an amendment.

Can Lancaster come back with a revised version?
Yes. The standard remedy is to redesign and resubmit. Many sponsors go through multiple cycles of rejection and resubmission before getting a certification. The 2023-2024 cycle saw multiple ballot-title saga's, including the related "Couch/Standerfer Transparency Amendment" series.

What about the ban on wireless or internet voting?
That part of the proposal was not specifically addressed as a defect; it would presumably ride through if the other issues were fixed. But the AG flagged that the ballot title's reference to "elections" might or might not include runoff elections, an ambiguity worth clarifying.

Background and statutory framework

A.C.A. § 7-9-107. Governs AG review and certification of ballot initiatives. Subsection (d)(1) lets the AG approve or substitute a title; subsection (e) requires rejection when the title is misleading or when the proposal's design would cause voters to vote for the opposite of what they intend.

Ballot title doctrine. A ballot title must be "free from any misleading tendency, whether by amplification, omission, or fallacy" and must "convey an intelligible idea of the scope and significance of a proposed change in the law" (Bailey v. McCuen, Christian Civic Action Comm. v. McCuen). It must not be "tinged with partisan coloring" (Bailey v. McCuen). It must define technical terms voters cannot be expected to know (Wilson v. Martin, Cox v. Daniels). It cannot be approved if the underlying text contributes to confusion (Roberts v. Priest).

Constitutional rules on initiatives. Ark. Const. amend. 7 governs the people's initiative power. Article 5, § 1 prescribes the enacting clause for initiated statutes. U.S. Term Limits v. Hill, 316 Ark. 251 (1994), held that "bills" in the enacting-clause section means initiated proposals where the people enact their own laws, not constitutional amendments.

Federal preemption. UOCAVA (52 U.S.C. § 20301 et seq.) governs absentee ballots for military and overseas voters. ADA Title II (42 U.S.C. §§ 12131–12134) and Voting Rights Act § 208 (52 U.S.C. § 10508) require assistance for voters with disabilities or who cannot read English.

Citations

• A.C.A. § 7-9-107 (AG review of ballot initiatives)
• A.C.A. § 7-9-104, § 7-9-126(b)(7) (full-text and signature requirements)
• A.C.A. § 7-5-309(b)(1)(B) (10-minute booth limit)
• A.C.A. § 7-5-411(a)(1)(A)(ii) (UOCAVA ballot deadline)
• Ark. Const. amend. 7 (initiative and referendum)
• Ark. Const. amend. 51, § 9(i) (Arkansas UOCAVA implementation)
• Ark. Const. art. 5, § 1 (enacting clause for initiated statutes)
• 52 U.S.C. § 20301 et seq. (UOCAVA)
• 42 U.S.C. §§ 12131–12134 (ADA Title II)
• 52 U.S.C. § 10508 (Voting Rights Act § 208)
• 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)

Source

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

Original opinion text

Opinion No. 2023-109
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.

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 amendment to the Arkansas Constitution:

Popular Name: An Amendment to the Arkansas Constitution to set the time for absentee voting, create absentee voting procedures, determine the manner in which absentee ballots are counted or tabulated, and ensure that elections cannot be conducted in this state using an internet, Bluetooth, or wireless connection.

Ballot Title: An amendment to the Arkansas Constitution that amends Amendment 50 to add additional sections effectuating a policy and practice in which absentee ballots may only be distributed within the thirty days prior to election day, limited to only registered voters who are unable to be present at the polls on election day because they are physically absent from or hospitalized, incarcerated, or in a long-term care facility within the county in which they are registered to vote, requiring the county clerk to distribute an absentee ballot only to a requesting and qualified voter, prohibiting absentee ballot harvesting as well as the unauthorized possession of absentee ballots by persons other than the requesting voter, the United States Postal Service, or a duly appointed and authorized election official, preventing the tracking of absentee ballots once they have been sent or provided to the voter, protecting information about who has requested an absentee ballot, ensuring that all absentee ballots are counted on election day before the early or election day votes are counted, prohibiting all elections in this state from being conducted using an internet, Bluetooth, or wireless connection, and requiring that absentee ballots and absentee voting which does not strictly conform to the requirements of this amendment to not be counted.

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 amendment. 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 amendment'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 amendment itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed amendment. Where the effects of a proposed amendment 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.

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. As explained in more detail below, multiple provisions in the text of your proposed amendment are ambiguous. The following ambiguities prevent me from ensuring your ballot title is not misleading:

• Enacting clause. Our state constitution requires that all "bills" initiated by the people (that is, proposed initiated acts) include an enacting clause with the following language: "Be It Enacted by the People of the State of Arkansas." There is no such requirement for initiated constitutional amendments, yet your proposed constitutional amendment includes an enacting clause. This office has long concluded that the inclusion of an enacting clause required for "bills" in a proposed constitutional amendment creates an ambiguity as to what the voters are being asked to consider, a bill or a constitutional amendment.

• Unclear language regarding physical absence. The text in § 7(c) of the proposed amendment states, "Only those voters who are unable to be present at the polls on election day because they are physically absent from or hospitalized, incarcerated, or a resident of a long-term care facility within the county in which they are registered to vote shall qualify for, possess, and utilize an absentee ballot." This language is confusing because you do not identify the place from which the voter must be physically absent. Must the voter simply be physically absent from the polling place, or must the voter be absent from the county? The answer to this question would give the voter "serious ground for reflection because it is unclear."

• Ambiguity regarding Amendment 51, § 9(i). The text in § 5 of your proposed amendment states, "The terms of this amendment shall not apply to Ark. Const. Amend. 51, § 9(i)." Presumably, you have included this stipulation in your proposed amendment to avoid violating the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), which Amendment 51, § 9(i) implements. But how you intend your proposed amendment to operate in conjunction with Amendment 51, § 9(i) is unclear. That subsection allows certain qualified servicemembers, their family members, and overseas citizens who are absent from their voting residence to "vote without prior registration by absentee ballot by submission of a federal postal card application." I assume that you intend for none of your proposal's application requirements to apply to citizens who are covered by UOCAVA and Amendment 51, § 9(i). But what about your proposal's requirements regarding the opening, canvassing, and counting of ballots? Arkansas law currently allows the absentee ballots of UOCAVA voters to be counted if they are executed no later than election day and received no later than ten days after the election. Do you intend for the ballots of UOCAVA voters to be exempt from § 7(e)(5) of your proposed amendment, which prohibits the counting of any absentee ballots not physically present and in the process of being canvassed and counted when the polls close on election day? Furthermore, § 7(e)(3) of your proposed amendment prohibits the counting or tabulations of early voting and election day votes "prior to the end of the tabulation and public posting of absentee voting." Does this mean that no early voting or election day votes may be counted until all UOCAVA ballots are received, potentially up to ten days after election day? Until you clarify these ambiguities, I cannot ensure the ballot title is not misleading.

• Assistance for voters with disabilities. While your proposed amendment prohibits anyone but the qualifying absentee voter from marking a vote selection on the absentee ballot, it includes an exception that allows voters with disabilities to receive assistance with marking their ballots. But there is no similar exception to allow a person assisting a voter with a disability to handle, possess, or return the absentee ballot on the voter's behalf. It is unclear whether you intend to allow voters with disabilities to receive assistance with receiving and returning their absentee ballots. If so, you should include an exemption similar to the one that allows assistance with marking ballots. If not, this fact should be reflected in the ballot title, along with a notice to voters that this provision likely violates federal law.

While the foregoing defects are sufficient grounds for me to reject your submission, please note that there are several other issues I have identified in your proposed popular name and ballot title that you may wish to correct or clarify:

• Insufficient summaries. Your proposed constitutional amendment includes provisions that would give voters "serious ground for reflection," yet they do not appear in the ballot title. For example:

• Tracking. The ballot title simply states that absentee ballots cannot be tracked "once they have been sent or provided to the voter." But your proposed constitutional amendment does more than that. It prohibits the tracking of an absentee ballot "by any method from the time the ballot leaves the possession of the county clerk until the time it is returned to the county clerk." That means that the voter would be unable to track his or her own ballot and would have no way of knowing if it is received and counted by the county clerk's office. A provision in the proposed amendment that prevents them from knowing if their own votes are received and counted would likely give voters "serious ground for reflection."

• Limitations on who may touch a ballot. Your proposed constitutional amendment prohibits anyone from touching, handling, or possessing an absentee ballot except for the voter, certain election workers, and postal workers. While your ballot title states that "ballot harvesting" and the "unauthorized possession" of absentee ballots are prohibited, the prohibitions contained in your proposal are much broader and should be reflected in the ballot title.

• § 9 Severability. This section of your proposal states that the amendment shall "be construed in a manner that harmonizes the intent of the amendment with the federal constitution," but that if a harmonic outcome is not possible, "then the offensive portion, section, or language shall be repealed and treated as through it was never a part of the amendment." Please note that this language is inaccurate. The power of repeal belongs to the legislature, not the judiciary. This section should be reworded.

• Runoff elections. Your proposed amendment states, "Under no circumstances may a request for an absentee ballot for a primary, general or special election be valid for a subsequent election that occurs after the requested primary, general, or special election." It also states that voting in "a primary, general, or special election in this state ... shall not be conducted or completed using an internet, Bluetooth, or wireless connection." It is not clear whether you intend this language to include runoff elections, but if you do, you may wish to clarify that intent.

• Popular name length. Your proposed popular name is quite long. It reads more like a second ballot title than a popular name. While the length of your proposed popular name does not appear to be so cumbersome as to be misleading, you may wish to shorten it.

• 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.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General