Why did the Arkansas Attorney General reject the proposed amendment that would have changed how the AG reviews ballot titles and limited who can challenge ballot titles in court?
Plain-English summary
David Couch (a longtime Arkansas initiative-rights attorney) submitted a proposed constitutional amendment that would have overhauled the initiative and referendum process. Major proposed changes:
- The General Assembly could not amend or repeal a constitutional amendment approved by the people.
- AG ballot-title review would change: certify if not misleading, or reject by providing a substituted title (no separate redesign-and-resubmit option).
- Inaction by the AG within ten calendar days would deem the popular name and ballot title certified.
- Sponsors (and only sponsors) could challenge AG substitutions in 30 days, with no other challenges to the certified title allowed.
- The ballot title for state-wide referendum petitions would be the underlying act's title.
- Petition signature verification rules simplified.
- Vote on emergency clauses must occur at least 24 hours after passage.
- No constitutional amendment could grant power to a specific individual or business or create a monopoly (with grandfather clause for amendments before January 1, 2025).
- The amendment could only be amended by initiated measure, not by legislature.
The AG rejected the popular name and ballot title because the measure's text was ambiguous in two related ways:
First, who can challenge in court. The text said no challenges other than the sponsor's would be "allowed." This was unclear: did "no additional challenges" mean only sponsors can challenge AG substitutions (leaving other challenge avenues open at later stages), or did it bar all challenges to ballot title sufficiency outside the sponsor's narrow window? The implications for direct democracy review are significant either way, and the language did not pick.
Second, what the Court could review. Ballot-title sufficiency in Arkansas turns on multiple factors (length, complexity, accuracy of summary, presence of essential facts). The text said challenges to "the approved popular name and/or ballot title" were not allowed. Did this eliminate all sufficiency review (so only signature challenges could go forward)? Or did it preserve the length/complexity standard as a separate ground? The text was silent.
The AG also flagged a structural problem: the new framework would force the AG to certify even when the measure's text is unfixable. Currently the AG can reject and direct redesign. Under the proposal, the AG must either certify or substitute; if the text is unfixable through ballot-title revision (because the ambiguity is in the underlying measure), the AG would be stuck. This is not a basis for rejection but the AG flagged it as an unintended consequence.
What this means for you
Ballot initiative sponsors
The Couch proposal targets specific friction points in current AR initiative law: legislature-amendment of voter-approved amendments, AG rejection authority, third-party ballot-title challenges, and certain technical rules. If a future iteration cleans up the ambiguities the AG flagged, the resulting framework could materially shift the cost and timing of running an initiative. Worth monitoring.
If you are drafting a similar reform proposal, two specific drafting takeaways: (a) be explicit about which courts can review what claims at which stages; (b) preserve the AG's reject-and-redesign option, because removing it without granting the AG authority to fix text creates a dead-end for ambiguous measures.
Government reform advocates and direct democracy supporters
The proposal cuts both ways. Limiting third-party ballot-title challenges would speed the process and reduce litigation costs for sponsors, but at the cost of cutting off post-certification scrutiny that protects voters from misleading titles. The proposal's strict 24-hour rule on emergency clauses also addresses a recurring concern about legislature passing emergency-clause measures with effectively no public scrutiny.
Election law attorneys
Note the proposal's interaction with Bailey v. McCuen. Bailey treats omission of "essential facts" as a separate kind of misleading-ness, distinct from active mis-statements. If the proposal eliminated review for "misleading by omission" (a plausible reading), the standard for ballot title sufficiency would relax substantially. The AG's ambiguity-finding here preserves judicial flexibility on that question.
Voters
If a future version of this amendment passes, expect ballot titles to look the same as they do now, but with reduced opportunity for citizens or advocacy groups to challenge them in court. The trade-off is faster initiative processing in exchange for less independent scrutiny.
Common questions
Why is "ambiguity in the text" a basis for rejecting the ballot title?
Because the AG cannot fix the text, only the title. Roberts v. Priest, 341 Ark. 813 (2000), holds that ambiguities in the underlying measure prevent any ballot title from accurately summarizing it. The AG's only available response under § 7-9-107(e) is to reject and direct the sponsor to redesign.
Did Couch resubmit?
The opinion does not foreclose resubmission. Sponsors who address identified defects often resubmit and obtain certification. Whether Couch did so is a matter of subsequent AG opinion records.
What is A.C.A. § 7-9-109 and why did the AG mention it?
§ 7-9-109 is the statutory basis for the AG's authority to reject popular names and ballot titles outright (in addition to the certify or substitute-and-certify options under § 7-9-107). The Couch proposal would have constitutionalized the AG's role and limited it to two options (certify or substitute), implicitly displacing § 7-9-109's reject-and-redesign mechanism. The AG noted this would force the AG to certify even where rejection would be appropriate.
Could the General Assembly override a voter-approved amendment under current Arkansas law?
The Arkansas Constitution generally requires another voter-approved amendment to repeal or amend a constitutional amendment. The Couch proposal would have constitutionalized this principle explicitly, removing any ambiguity. Currently, the legislature has limited authority to interpret or implement constitutional amendments, but the boundary is contested.
Background and statutory framework
AG ballot-title review. A.C.A. § 7-9-107 governs sponsor submission and AG response. § 7-9-107(d)(1) authorizes certification or substitution; § 7-9-107(e) authorizes rejection and direction to redesign.
Reject-and-redesign authority. A.C.A. § 7-9-109 codifies the AG's authority to return defective proposals to sponsors. The Couch proposal would have constitutionalized only the certify and substitute options.
Roberts v. Priest doctrine. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000), establishes that ambiguities in a proposed measure's text doom any ballot title.
Bailey "essential facts" rule. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), holds that omission of "essential facts which would give the voter serious ground for reflection" makes a ballot title misleading.
Amendment 7. Article 5, § 1 of the Arkansas Constitution (Amendment 7) governs initiated measures. Requires that the "full text" of the proposed measure accompany each petition.
Citations
- A.C.A. § 7-9-107 (sponsor submission and AG review)
- A.C.A. § 7-9-107(d)(1) (certify or substitute)
- A.C.A. § 7-9-107(e) (rejection and redesign)
- A.C.A. § 7-9-109 (AG rejection authority)
- Ark. Const. art. 5, § 1 (Amendment 7, initiative process)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
Source
Original opinion text
Opinion No. 2024-026
February 20, 2024
David A. Couch
1501 North University Avenue, Suite 219
Little Rock, Arkansas 72207
Dear Mr. Couch:
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 AMEND THE INITIATIVE AND REFERENDUM
PROCESS
Ballot Title
Providing that the General Assembly may not amend or repeal a constitutional
amendment approved by a vote of the people; Providing that prior to a petition on
a state-wide measure being circulated, the measure, the popular name and exact
title to be used on the ballot shall be submitted to the Attorney General for approval
and certification. Within ten calendar days, the Attorney General shall either certify
that the popular name and ballot title submitted are not misleading, and that the title
is an honesty and impartial summary of the proposed measure that gives the voter
a fair and reasonable understanding of the issues in the measure, or reject the
popular name and/or title if it [sic] determines that they do not meet the
requirements of this section. To reject a proposed popular name or ballot title, the
Attorney General shall provide a written statement clearly explaining all the reasons
for rejection and provide a substituted popular name and/or title that makes only
such changes to the proposed popular name and/or title as is necessary to meet the
requirements of this section and then certify the approved popular name and title to
TIM GRIFFIN
ATTORNEY GENERAL
323 CENTER STREET, SUITE 200
LITTLE ROCK, ARKANSAS 72201 Mr. David A. Couch
Opinion No. 2024-026
Page 2
be used on the ballot. Failure by the Attorney General to either approve the popular
name and/or title or to substitute a popular name and/or title within ten calendar
days shall be considered acceptance and certification of the proposed popular name
and title. The sponsor may challenge the Attorney General’s substitution of the
popular name and/or title within 30 calendar days of receiving it by filing a
complaint with the Arkansas Supreme Court which shall have original jurisdiction
and who shall expedite the matter. No additional challenges to the approved popular
name and/or ballot title shall be allowed;. [sic] Providing that the ballot title for any
state-wide referendum petition shall be the title of the Act as assigned by the
General Assembly and the name shall be the subtitle as assigned by the General
Assembly; Providing that each part of any petition shall have attached thereto the
declaration under penalty of perjury of the person circulating the same, that all
signatures thereon were made in the presence of the declarant, and that to the best
of the declarant’s knowledge and belief each signature is genuine, and that the
person signing is a legal voter and no other affidavit, declaration, or verification
shall be required to establish the genuineness of such signatures; Providing that any
vote on an emergency clause must occur at least 24 hours after passage of the
measure; Providing that no constitutional amendment which either explicitly or by
implication specifically bestows power, privileges, or authority upon a specific
individual, or a private business entity or corporation, or creates a monopoly for a
private business entity or corporation shall be allowed however stating that this
prohibition does not apply to any constitutional amendment approved prior to
January 1, 2025; Providing that this section may only be amended by a
constitutional amendment initiated by the people pursuant to the terms of this
amendment and not by an amendment referred by the General Assembly pursuant
to Article 19, Section 22.
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
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. Mr. David A. Couch
Opinion No. 2024-026
Page 3
• 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 against the issue would actually be a vote for
the outcome opposite of what the voter intends.6
3. Rules governing the popular name. The popular name is primarily a useful legislative
device.7 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.8 And it must be
considered together with the ballot title in determining the ballot title’s sufficiency.9
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.10 The Court has
also disapproved the use of terms that are “technical and not readily understood by voters.”11 Ballot
titles that do not define such terms may be deemed insufficient.12
Additionally, sponsors cannot omit material from the ballot title that qualifies as an “essential fact
which would give the voter serious ground for reflection.”13 Yet the ballot title must also be brief
and concise lest voters exceed the statutory time allowed to mark a ballot.14 The ballot title is not
required to be perfect, nor is it reasonable to expect the title to address every possible legal
5 A.C.A. § 7-9-107(e).
6 Id.
7 Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
8 E.g., 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).
9 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
10 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
11 Wilson v. Martin, 2016 Ark. 334, *9, 500 S.W.3d 160, 167 (citing Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591
(2008)).
12 Id.
13 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
14 A.C.A. §§ 7-9-107(d)(2) (requiring the ballot title “submitted” to the Attorney General or “supplied by the Attorney
General” to “briefly and concisely state the purpose the proposed measure”); 7-5-309(b)(1)(B) (allowing no more than
ten minutes); see Bailey, 318 Ark. at 288, 884 S.W.2d at 944 (noting the connection between the measure’s length and
the time limit in the voting booth). Mr. David A. Couch
Opinion No. 2024-026
Page 4
argument the proposed measure might evoke.15 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.16 The ballot title must be honest and impartial,17 and it must convey an
intelligible idea of the scope and significance of a proposed change in the law.18 The ballot title
need not summarize existing law though.19 The court has held that a statement that a measure “will
repeal inconsistent laws” is sufficient to inform the voters “that all laws which are in conflict will
be repealed.”20
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.21 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 constitutional amendment, as well as
your proposed popular name and ballot title, I have concluded that, due to a key ambiguity in the
text of your proposed measure, I must reject your proposed popular name and ballot title and
instruct you to redesign them. This ambiguity prevents me from (1) ensuring that your ballot title
is not misleading or (2) substituting a more appropriate ballot title.22
The ambiguity pertains to how your proposal changes the law regarding the Arkansas Supreme
Court’s jurisdiction to review the legal sufficiency of popular names and ballot titles. Your
proposed amendment adds language to Article 5, section 1 of the Arkansas Constitution that would
significantly change the Attorney General’s role in reviewing ballot titles. Currently, as noted
above, the Attorney General may (1) certify the popular name and ballot title as submitted, (2)
15 Plugge v. McCuen, 310 Ark. 654, 658, 841 S.W.2d 139, 141 (1992).
16 Bailey, 318 Ark. at 284, 884 S.W.2d at 942 (internal citations omitted); see also Shepard v. McDonald, 189 Ark.
29, 70 S.W.2d 566 (1934)
17 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
18 Christian Civic Action Committee v. McCuen, 318 Ark. 241, 250, 884 S.W.2d 605, 610 (1994).
19 Armstrong v. Thurston, 2022 Ark. 167, 10, 652 S.W.3d 167, 175.
20 Richardson v. Martin, 2014 Ark. 429, 9, 444 S.W.3d 855, 861.
21 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
22 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, 2001-397,
2001-129, 2001-074, 2000-084, 1999-430. Mr. David A. Couch
Opinion No. 2024-026
Page 5
substitute and certify a “more suitable” popular name and ballot title, or (3) reject the proposed
popular name and ballot title and “instruct” the sponsor to “redesign the proposed measure and the
ballot title and popular name.” Your proposal would create a scenario in which every proposed
popular name and ballot title is certified. Under your proposal, this certification would occur in
one of three ways: (1) the Attorney General could certify the popular name and ballot title as
submitted; (2) if the Attorney General does not act on the certification request within ten calendar
days, the popular name and ballot title “shall be considered” certified; or (3) the Attorney General
may “reject the proposed popular name and title…[by] provid[ing] a written statement clearly
explaining all the reasons for rejection and provid[ing] a substituted popular name and/or
title…and then certify[ing] the approved popular name and title to be used on the ballot.” Your
proposal also states that “[t]he sponsor may challenge the Attorney General’s substitution of the
popular name and/or title” and that such a challenge must be “within 30 calendar days of receiving”
the Attorney General’s substitution.
Your proposed text then states that, other than the challenge by the sponsor, “[n]o additional
challenges to the approved popular name and/or ballot title shall be allowed.” This provision is
ambiguous in two different ways.
First, it is ambiguous in terms of who can bring a court challenge under certain circumstances. On
the one hand, it could mean that only the sponsor may bring a court challenge when the Attorney
General has substituted and certified the popular name and ballot title. This would continue to
allow people other than the sponsor to challenge the legal sufficiency of the popular name and
ballot title at other stages of the initiative process—but only if the Attorney General certified the
proposal as submitted or if it was deemed certified if the Attorney General failed to act. On the
other hand, it could mean that only the sponsor may bring a court challenge and no one else can
challenge the ballot title’s legal sufficiency at any other stage of the initiative process.
Second, the provision is ambiguous in terms of what it is that the Supreme Court may be asked to
review. As explained above, a number of factors involving the ballot title itself play a role in
determining whether a petition is legally sufficient, including the ballot title’s length and
complexity, and whether it accurately, impartially, and clearly summarizes the measure’s text. It
is unclear whether you intend, by (entirely or partially) removing the ability of third parties to sue,
to eliminate the ballot title sufficiency requirements altogether, in which case only the sufficiency
of signatures could be challenged. Alternatively, you might intend to keep the ballot title
sufficiency requirements (such as length and complexity) that extend beyond the question of
whether a ballot title is misleading.
The foregoing ambiguities prevent me from ensuring that your ballot title is not misleading and
from substituting and certifying a more suitable ballot title. Because of the issues identified above,
my statutory duty under A.C.A. § 7-9-107(e) is to reject your proposed popular name and ballot
title, stating my “reasons therefor,” and to “instruct…[you] to redesign your proposed measure and
the ballot title…in a manner that would not be misleading.”
6. Additional issues. While the foregoing defects provide sufficient grounds for me to reject your
submission, I have identified another issue in your proposal that you may wish to address. Mr. David A. Couch
Opinion No. 2024-026
Page 6
Your proposed amendment constitutionalizes the Attorney General’s role in the review process,
but it only allows the Attorney General to respond in one of two ways. The Attorney General may
either “certify that the popular name and ballot title submitted are not misleading, and that the title
is an honest and impartial summary of the proposed measure that gives the voter a fair and
reasonable understanding of the issues in the measure, or reject the popular name and/or title if it
determines that they do not meet the requirements of this section.” If the Attorney General rejects
the proposed popular name or ballot title, he or she must “provide a substituted popular name
and/or title that makes only such changes to the proposed popular name and/or title as is necessary
to meet the requirements of this section, and then certify the approved popular name and title to
be used on the ballot.”
By removing the option for the Attorney General to reject the popular name and ballot title
altogether, which is currently allowed under A.C.A. § 7-9-109, you have created a scenario
whereby the Attorney General, in some circumstances, will be unable to act. As explained above
and in previous ballot title opinions, I cannot modify the text of a proposed measure itself.
Consequently, if the text of a measure contains contradictions, ambiguities, errors, or other
problems that render it misleading, there is no ballot title I can substitute that will remedy the
problem, as any substituted and certified ballot title would simply import the problem from the
text of the measure to the ballot title. In such cases, it is up to the sponsor to correct the deficiencies
in the text. But your proposed amendment would not allow the Attorney General to return the
ballot title to the sponsor so that the sponsor may correct these problems. By removing the Attorney
General’s authority to reject a proposed measure without granting the authority to edit the
measure’s text—while simultaneously requiring the Attorney General to certify that the popular
name and ballot title are not misleading and that the title provides “an honest and impartial
summary of the proposed measure that gives the voter a fair and reasonable understanding of the
issues,”—your amendment ensures that there will be times where the Attorney General is unable
to act.
This is not a reason to reject your submission because, as long as this problem is clearly set forth
in your ballot title, it is not misleading. But because I am returning your proposed popular name
and ballot title to you with instructions to redesign them, I am pointing out what may be an
unintended consequence of your proposed amendment: in some cases, the Attorney General will
not be able to certify a proposed measure, and in other cases, such as when a proposed measure is
unconstitutional, the Attorney General may be forced to certify language stating that the measure
is invalid.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General