Why did the Arkansas AG reject the proposed 2024 hand-marked paper ballots constitutional amendment?

Plain-English summary

Clinton Lancaster submitted a proposed constitutional amendment concerning secure hand-marked paper ballots, voting machines for disabled voters, vote counts, and wireless election systems. The AG rejected its popular name and ballot title because the proposed definition of “disabled voter” was unclear and incorporated other laws without setting out their definitions.

The text defined a disabled voter by reference to the Help America Vote Act (HAVA), the Americans with Disabilities Act (ADA), or the Arkansas Civil Rights Act (ACRA), and expressly included blind or visually impaired voters. The AG said HAVA has no definition of disability. The ADA and ACRA definitions are narrower than A.C.A. § 7-5-311(c), which covers “any physical, mental, or sensory impairment.” He said the proposal appeared to change existing law for voters who are deaf or hearing-impaired and for people whose disabilities do not substantially limit a major life activity. A material change of that kind would need to appear in the ballot title.

The AG also found a full-text problem. The amendment would incorporate three statutory definitions by reference without reproducing them. Citing the North Dakota Supreme Court's decisions in Haugen v. Jaeger, 2020 N.D. 177, 948 N.W.2d 1, and Dyer v. Hall, 51 N.D. 391, 199 N.W. 754 (1924), he said the Arkansas Supreme Court would likely agree that this violated Arkansas's full-text requirement. He concluded the omission made the ballot title misleading.

The AG instructed the sponsor to redesign the amendment, popular name, and ballot title. He separately noted a possible enacting-clause issue and remaining uncertainty in the definition of “human intelligence.” He did not treat those additional issues as grounds for this rejection.

What this means for you

Ballot initiative sponsors

If a proposed amendment relies on an external definition, the full-text issue needs to be resolved in the measure itself. The AG did not propose a replacement definition of “disabled voter” or say that copying the state election-law wording alone would secure certification. He directed a redesign and identified additional issues to consider.

Disabled voters and advocates

The definition would determine which voters could continue using voting machines under the proposal. The AG said it appeared to narrow existing law for deaf or hearing-impaired voters and for some other voters whose impairment does not substantially limit a major life activity. He did not decide the exact reach of a future revised definition.

Election officials

The proposed ballot title described hand-marked paper ballots, hand counting, and limits on wireless connections. The AG's decision concerns the definition of voters permitted to use machines and the title's failure to explain its possible effect.

Common questions

Could the sponsor simply cite A.C.A. § 7-5-311(c) instead?
The opinion does not approve that approach. Its full-text analysis objects to incorporating outside definitions by reference without providing the actual text.

What did the AG say about “human intelligence”?
The revised phrase left open whether a person could use a calculator or spreadsheet to help count votes. The AG did not definitively find it misleading, but said a court could.

Did the AG decide whether hand-marked ballots are more secure? No. He said his certification decision was unrelated to the proposal's merits.

Citations

• A.C.A. § 7-9-107(e)
• A.C.A. § 7-1-107
• A.C.A. § 7-5-311(c)
• A.C.A. § 16-123-102(5)
• 42 U.S.C. § 12102
• Haugen v. Jaeger, 2020 N.D. 177, 948 N.W.2d 1
• Dyer v. Hall, 51 N.D. 391, 199 N.W. 754 (1924)
• Ark. Att'y Gen. Op. 2023-108

Source

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

Original opinion text

Opinion No. 2023-133

January 11, 2024

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 enhance the security of
   public elections, require the use of secure hand marked paper ballots, permit
   disabled voters to continue using voting machines, regulate the counting
   and verification of votes cast during an election, preserve the current
   method of selecting candidates, and ensure that elections cannot be
   conducted in this State using an internet, Bluetooth, or wireless connections.

                                   Ballot Title
   

   An amendment to the Arkansas Constitution that repeals or amends parts of
   Amendment 50, § 2 and Amendment 50, § 4 to remove the language that
   permits all elections to be conducted by voting machines and add to and
   modify the language of Amendment 50 which effectuates a policy and
   practice that, except for only those voters with disabilities who may
   continue to use a voting machine, all elections in this State must be
   Mr. Clinton W. Lancaster
   Opinion No. 2023-133
   Page 2

         conducted with secure paper ballots containing inherent security features
         designed to prevent unauthorized duplication; with vote selections marked
         by hand using permanent ink placed directly on the ballot by the voter in a
         manner which continues to both insure and ensure the secrecy of the votes
         cast on the ballot and the anonymity of the voter casting the ballot; requiring
         that no early or election day votes be counted or tabulated before the close
         of the polls on election day; requiring that the certification of all elections
         be based on a hand count of the votes performed and verified by human
         intelligence; requiring that all elections for public electable positions in this
         State be conducted by voters selecting only one candidate per race with the
         winner (including in municipal elections) determined by which candidate
         receives the most votes after first obtaining more than fifty percent (50%)
         of all votes cast after all lawful votes have been counted; ensuring that
         elections cannot be conducted in this State using an internet, Bluetooth, or
         wireless connection; and directing the Arkansas General Assembly to
         allocate funding to effectuate and implement the terms of this amendment.
   

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. 1 An “original draft” includes the full text of the proposed measure along with its ballot title and popular name.2 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.3
   
     •   Second, the Attorney General may “substitute and certify a more suitable and
         correct ballot title and popular name.”4 But A.C.A. § 7-9-107 does not authorize
         the Attorney General to modify the text of the proposed measure itself.
   
     •   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.”5 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
   

1
A.C.A. § 7-9-107(a).
2
A.C.A. § 7-9-107(b).
3
A.C.A. § 7-9-107(d)(1).
4
Id.
5
A.C.A. § 7-9-107(e).
Mr. Clinton W. Lancaster
Opinion No. 2023-133
Page 3

against the issue would actually be a vote for the outcome opposite of what the voter intends.6

3. Rules governing the popular name and the ballot title. In Opinion No. 2023-108,
   issued in response to your first submission for review and certification, I explained the rules and legal standards that govern my review of popular names and ballot titles. I rely on those same rules and legal standards here and incorporate those rules and standards by reference.

4. 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, the current version of the popular name and the ballot title fails to make all the changes noted in my response to your first submission, Opinion No. 2023-108. 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:7

In Opinion 2023-108, I noted that it was unclear whether you intended your definition of “disabled voter”—“a voter with a disability as that term is defined under the Help America Vote Act”—to exclude someone with sensory impairments, when the definition of “disability” under such federal law differs from state law. State election law concerning voters with disabilities defines “disability” as “any physical, mental, or sensory impairment.”8 Your measure’s text now defines “disabled voter” as “a voter with a disability as that term is defined by the Help America Vote Act [(HAVA)], the Americans with Disabilities Act of 1990 [(ADA)], or the Arkansas Civil Rights Act of 1993 [(ACRA)] and includes those voters who are blind or visually impaired.” Yet the HAVA does not contain a definition of “disability,” and the definitions of “disability” under the ADA and the Arkansas Civil Rights Act ACRA are narrower than the definition contained in A.C.A.
§ 7-5-311.9 So the addition of more statutes compounds, rather than clarifies, the issues I

6
Id.
7
Although A.C.A. § 7-9-107 does not authorize the Attorney General to modify the text of the proposed measure itself, the Attorney General still reviews the text of the proposed measure because the ballot title and popular name cannot be certified when the “text of the proposed amendment itself” is ambiguous or misleading. Roberts, 341 Ark. at 825, 20 S.W.3d at 382. And in line with the caselaw, my predecessors have consistently rejected ballot titles “due to ambiguities in the text” of the proposed measure.” E.g., Ark. Att’y Gen. Ops. 2016-015, 2015-132, 2014-105, 2014-072, 2013-079, 2013-046, 2013-033, 2011-023, 2010-007, 2009-083, 2008-018, 2005-190, 2002-272, 2001-074, 2001-397, 2001-129, 2000-084, 1999-430. 8 A.C.A. § 7-5-311(c) (emphasis added).
9
42 U.S.C.A. § 12102 (ADA) (defining “disability” as “a physical or mental impairment that substantially limits one or more major life activities”; “a record of such an impairment”; or “being regarded as having such an impairment”); A.C.A. § 16-123-102(5) (ACRA) (defining “disability” as “a physical or mental impairment that substantially limits a major life function”); see also Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 954, 69 S.W.3d 393, 401 (2002) (noting that the “definition of disability in both the ACRA and the ADA are in all relevant respects the same”). Mr. Clinton W. Lancaster Opinion No. 2023-133 Page 4

noted with the new definition. The way you have defined this term is confusing, would give voters “serious ground for reflection,” and fails to adequately inform voters about how your measure would change existing law. As I noted before, your definition also appears to change the law. Here, it changes the law as it pertains to voters who (1) are deaf or hearing-impaired or (2) have a disability that does not substantially limit a major life activity. If that is your intent, it would amount to a substantial change in law that would surely give voters “serious ground for reflection.” Such a material change would need to be noted in the ballot title. Therefore, I simply reiterate what I said in Opinion No. 2023- 108, which I incorporate in this opinion.

Your approach to defining this term is also problematic because it attempts to incorporate other statutory definitions by reference, which violates the “full text” requirement. The absence of the measure’s full text then renders the ballot title misleading by omission. Amendment 7 (Ark. Const., art. 5, § 1) to our state constitution requires that the “full text” of the initiated measure accompany each petition. Consequently, under A.C.A. § 7-1-107, all sponsors must give the Attorney General “[t]he full text of the proposed measure.” And while the Arkansas Supreme Court has yet to interpret the meaning of the phrase “full text of the proposed measure,” the North Dakota Supreme Court recently reviewed a substantially identical phrase in its own law.10 In Haugen v. Jaeger, the North Dakota Supreme Court reviewed the legal validity of an initiated constitutional amendment that, by explicit citation, incorporated certain statutes into the state constitution.11 There, the legal question was whether such an incorporation violated the state’s full-text requirement.

Reaffirming a nearly 100-year-old decision on that topic of law, Dyer v. Hall,12 the Haugen court held that such an incorporation by reference violates the full-text requirement for two reasons. First, it cut against “the purpose of the full-text requirement,” which “was to obviate all uncertainty as to the subject-matter dealt with in the Constitution.”13 Second, Haugen approvingly cited Dyer’s additional point that when initiated measures incorporate laws by reference, the “voters have no opportunity to read or examine fairly the contents
[of those incorporated laws] and appreciate the real import of the proposed amendment.”14 In my opinion, the Arkansas Supreme Court likely would agree with Haugen’s conclusion and reasoning when interpreting our own full-text requirements.

Here, you, like the sponsors in Haugen, expressly incorporate by reference statutes, two federal and one state, into the definition of “disabled voter” without providing the actual definitions. Therefore, voters reviewing the ballot title are not sufficiently advised about 10 I have also recently reviewed in detail the holding of this particular North Dakota Supreme Court decision in Ark. Att’y Gen. Op. 2023-113. 11 2020 N.D. 177, 948 N.W.2d 1.
12
51 N.D. 391, 199 N.W. 754 (1924).
13
2020 N.D. 177, 4, 948 N.W.2d at 4 (internal quotations omitted).
14
Id. at 4, 948 N.W.2d at 3 (internal quotations omitted).
Mr. Clinton W. Lancaster
Opinion No. 2023-133
Page 5

the content of the statutes you are attempting to incorporate into the definition of “disabled voter,” and the absence of the measure’s full text means the ballot title is misleading by omission.

Because you have not yet resolved these issues concerning the definition of “disabled voter,” 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.

5. Additional issues. While the foregoing defects are sufficient grounds for me to reject
   your submission, please note that your proposed measure contains several other issues that you may wish to correct or clarify. You have chosen to selectively resolve a subset of such additional problems I noted in response to your first submission (Opinion No. 2023-108).

   • Enacting clause. Although the inclusion of an enacting clause is improper in a
   constitutional amendment,15 I cannot say that this clause, as worded, would be
   misleading to the voter.16 Still, please note that this question appears to be one of
   first impression. A court could find that your clause is an enacting clause and is
   therefore inherently misleading when used for a constitutional amendment, despite
   the additional language added to the clause in this submission.

   • “Human intelligence.” The ballot title and the text of your proposed measure, like
   your previous submission, contain the phrase “human intelligence.” The way your
   prior submission defined this term was confusing. You have now revised this
   definition. As this side-by-side comparison shows, the definition of “human
   intelligence” changed as follows:

     First Submission, § 3 Definitions                   Second Submission, § 3 Definitions
     “Human Intelligence” means “the                     “Human Intelligence” means “the
     thought and physical process of a                   mental processes of a human being
     human being instead of the thought or               consisting of human thought as well as
     process of a computer or an artificial              the physical and chemical processes
     intelligence.”                                      of the human brain instead of the
                                                         thought or process of a computer or an
                                                         artificial intelligence.”
   
    And the current proposed ballot title and text of the proposed measure use “human
    intelligence” as follows:
   

15
See BLACK’S LAW DICTIONARY 315 (11th ed. 2019) (defining “enacting clause” as “[t]he part of a statute stating the legislative authority by which it is made and often the date when it will take effect.”) (emphasis added).

As explained in Ark. Att’y Gen. Op. 2023-109, the General Assembly has only empowered me to reject or 16

modify a ballot title when it is misleading or when a vote “for” is actually a vote against (or vice versa). Mr. Clinton W. Lancaster Opinion No. 2023-133 Page 6

Proposed Ballot Title
Proposed Text, § 8
The proposed ballot title states “that the Section 8 of the proposed measure certification of all elections be based on provides that “certification of all
a hand count of the votes performed and
elections shall be based on a hand
verified by human intelligence.”
count of the votes performed and
verified by human intelligence.”

To read the new definition and ballot title together: all elections must be “based on a hand count of the votes performed and verified by…the mental processes of a human being consisting of human thought as well as the physical and chemical processes of the human brain instead of the thought or process of a computer or an artificial intelligence.”

In Opinion 2023-108, I noted that the definition of “human intelligence” provided in the first submission was confusing because the meaning of “thought and physical process” was unclear. In your current submission, you appear to replace the phrase “thought and physical process” with additional language. It is unclear whether this additional language outright addresses the Opinion 2023-108’s question of whether a human can use a machine or computer, such as a calculator or Excel spreadsheet to aid in the hand count process. The line between determining the meaning of words within a measure versus interpreting the measure is fine. While I review the meaning of words to determine whether they are confusing or misleading, it is not my place to actually interpret the measure’s text.17 Therefore, I cannot definitively conclude that this new definition, as worded, would be misleading to the voter.18 But whether or not the new language here is confusing or misleading is borderline, and I note that a court could find that the language is misleading.

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

Sincerely,

TIM GRIFFIN
Attorney General

17
See, e.g., Cox v. Daniels, 374 Ark. 437, 451, 288 S.W.3d 591, 600 (2008) (“[W]e we cannot engage in the interpretation and construction of the text of the amendment….”). 18 Again, the General Assembly has only empowered me to reject or modify a ballot title when it is misleading or when a vote “for” is actually a vote against (or vice versa).