Why did Arkansas reject the ballot title for a proposed tobacco excise-tax repeal?

Plain-English summary

David Dinwiddie asked the Arkansas Attorney General to certify a popular name and ballot title for an initiated act about tobacco excise taxes. He submitted the same single sentence for both. The Attorney General rejected the ballot title because it was not a summary of the proposed measure. He said his authority to substitute wording did not permit him to create an independent ballot title from that submission.

The opinion identifies three additional problems to correct in any revised proposal. The title did not identify the programs supported by the taxes or explain that the proposal would reduce their funding. The proposal did not make clear whether it would remove excise taxes from before the Tobacco Products Act of 1977, taxes enacted since that Act, or both. The measure also addressed excise taxes on cigarette papers, which the title did not mention. The Attorney General described this as a non-exhaustive list of deficiencies.

What this means for you

Ballot initiative sponsors

Submit a ballot title that summarizes the measure rather than repeating its popular name. If the measure changes taxes over a long period, identify which taxes remain and which are removed. This opinion leaves the proposed repeal's time span unresolved; do not assume it reaches only taxes enacted after 1977.

Voters and program stakeholders

The opinion says the ballot title needed to tell voters about programs supported by the affected tax revenue. It does not list those programs or quantify a particular funding loss. It rejected the proposed wording; it did not decide the merits of a tobacco-tax repeal.

Common questions

Did the proposal clearly repeal every tobacco tax enacted after 1977?

No. The Attorney General expressly asked whether the proposal meant to remove pre-1977 taxes, taxes enacted since the 1977 Act, or both. He found the text ambiguous.

Why was an identical popular name and ballot title a problem?

The Attorney General said the submitted title did not summarize the measure. He could modify a submitted title but could not draft an independent product in its place.

Why did cigarette papers matter?

The opinion says the proposed measure would eliminate taxes on cigarette papers, which are not tobacco or tobacco products, yet the ballot title omitted them.

Could the sponsor submit another draft?

The opinion discusses issues to correct if the sponsor chooses to submit a revised proposal. It says further deficiencies could still be discovered.

Currency note

This February 27, 2024 opinion concerns the proposed text submitted then. It does not establish the status of a later tobacco-tax measure or current tax rates.

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2024-031
February 27, 2024
Mr. David E. Dinwiddie
8608 Princeton Pike
Pine Bluff, Arkansas 71602
Dear Mr. Dinwiddie:
I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the popular name and ballot title for a proposed initiated act.

My decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure’s merits. I am not authorized to consider the measure’s merits when considering certification.

1. Request. Under A.C.A. § 7-9-107, you have asked me to certify the following popular name
   and ballot title for a proposed initiated act:

                                      Popular Name
   
      A Bill to remove additional excise taxes on tobacco and tobacco products, other
      than those imposed by Tobacco Products Act of 1977.
   
                                        Ballot Title
   
      A Bill to remove additional excise taxes on tobacco and tobacco products, other
      than those imposed by Tobacco Products Act of 1977.
   

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:

1
A.C.A. § 7-9-107(a).
2
A.C.A. § 7-9-107(b).

323 CENTER STREET, SUITE 200
LITTLE ROCK, ARKANSAS 72201

Mr. David E. Dinwiddie
Opinion No. 2024-031
Page 2

• 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
• 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 act. 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 measure’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

3
A.C.A. § 7-9-107(d)(1).
4
Id.
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.

Mr. David E. Dinwiddie
Opinion No. 2024-031
Page 3

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 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 measure. 21 Where the effects of a proposed measure 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.

4. Application. Having reviewed the text of your proposed initiated act, as well as your proposed
   popular name and ballot title, I have concluded that I must reject your proposed ballot title as misleading because it makes no attempt to summarize the measure’s text in a way that complies with the above law. As my predecessors and I have noted many times, although the Attorney General is authorized to “modify a proposed ballot title to render it a more accurate summary” of

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). 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 Comm. 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).

Mr. David E. Dinwiddie
Opinion No. 2024-031
Page 4

the underlying measure, the Attorney General is “not authorized to craft a ballot title that amounts to an independent product.” 22

Although the foregoing issue is a sufficient basis to reject your proposed ballot title, I have also noted the following additional issues with your text and ballot title that would need to be corrected so that, if you choose to submit a revised proposal, a ballot title could be drafted properly:

• Programs funded by excise taxes. Your ballot title does not list the multiple programs that are supported by these taxes or explain that voting for the proposal will cut funding for the programs. This information qualifies as an “essential fact which would give the voter serious ground for reflection.” Without this information, your ballot title is misleading by omission.

• What taxes will remain. Arkansas has a substantial history of taxing tobacco, tobacco products, and tobacco-related products, and the Arkansas Tobacco Products Act of 1977 (“TPA”) is one law in that history. Do you intend the proposal to remove all excise taxes in effect before the TPA was passed? Or to eliminate all excise taxes enacted since the TPA? Or both? Because this information is missing, your proposal and ballot title are ambiguous. And the answers to these questions would give a voter “serious ground for reflection.”

• Cigarette papers. Your proposed measure also eliminates excise taxes on cigarette papers, which are not tobacco or tobacco products. By omitting this information from the ballot title, your ballot title is misleading.

This is not an exhaustive list. Additional deficiencies may be discovered upon review of subsequent proposals.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

22
See, e.g., Ark. Att’y Gen. Ops. 2023-098, 2018-112, 2013-112.