Why did the Arkansas Attorney General reject the proposed ballot title to repeal additional tobacco excise taxes beyond the Tobacco Products Act of 1977?
Plain-English summary
David Dinwiddie submitted an initiated act to "remove additional excise taxes on tobacco and tobacco products, other than those imposed by Tobacco Products Act of 1977." The popular name and the ballot title were identical (just the title sentence above).
The AG rejected on multiple grounds:
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The ballot title was not actually a summary. It was the popular name copied. Under settled Arkansas law, a ballot title must summarize the proposed measure's text. The AG cannot "craft a ballot title that amounts to an independent product." If the sponsor does not submit a real summary, the AG cannot manufacture one.
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Omitted programs funded by the tobacco excise taxes. Arkansas tobacco taxes fund a range of programs (Medicaid, smoking cessation, public health). Voting for the proposal would cut their funding. This is an "essential fact which would give the voter serious ground for reflection" under Bailey v. McCuen. Omitting it makes the title misleading.
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Ambiguous scope. Arkansas has imposed tobacco excise taxes through multiple statutes over decades. The proposal said "additional excise taxes…other than those imposed by [the 1977 Act]." Did the sponsor mean (a) all excise taxes pre-1977 are repealed and only 1977 taxes remain, or (b) all excise taxes post-1977 are repealed and 1977-and-earlier survive, or (c) both? The text was silent.
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Cigarette papers are not "tobacco" or "tobacco products." The proposal also repealed excise taxes on cigarette papers, but the ballot title did not mention that. Misleading by omission.
Each defect was independently sufficient for rejection. Sponsor instructed to redesign.
What this means for you
Ballot initiative sponsors
This rejection illustrates a recurring sponsor mistake: treating the ballot title as a label rather than a summary. Arkansas law (and AG practice) requires the ballot title to actually describe what the measure does, with enough specificity that voters in the booth understand what they are voting for. A label is not a summary.
If you are drafting an initiative that touches a complex statutory framework (tobacco taxes are a good example), you also need to address scope ambiguity in the text itself. Saying "additional taxes" without saying which taxes is the kind of textual gap that propagates into the ballot title and triggers Roberts v. Priest rejection.
Public health advocates
Tobacco excise taxes in Arkansas fund cessation programs, Medicaid, and public health initiatives. A repeal would cut significant revenue from those programs. If a future iteration of this proposal cleans up the technical defects, the public health community should be ready to weigh in on the merits during the campaign and through pre-election ballot title challenges.
Tobacco industry observers
The proposal would have rolled back tobacco excise taxes enacted after the Tobacco Products Act of 1977. Arkansas has substantially raised tobacco taxes since 1977, so the practical effect would be a major reduction in retail tobacco prices and corresponding state revenue loss. The AG's rejection means the proposal does not advance, but watch for revised submissions.
State revenue analysts
If a similar proposal were certified and passed, the revenue impact would be material. Arkansas tobacco tax collections fund several specific programs by statute. A repeal would force either program cuts or replacement of funding from the general fund. Quantifying the impact is part of any pre-campaign fiscal analysis.
Common questions
Why can the AG not just write a real ballot title for the sponsor?
Because the AG's authority is limited. AG opinions cite the rule that the AG can "modify a proposed ballot title to render it a more accurate summary" but is "not authorized to craft a ballot title that amounts to an independent product." When the sponsor submits a label rather than a summary, there is no submitted summary for the AG to modify.
What's the Tobacco Products Act of 1977?
Arkansas's foundational tobacco taxation statute. The proposal would have repealed excise taxes "other than those imposed by" that act. The scope ambiguity made it impossible to determine which post-1977 (or pre-1977) taxes would survive.
Are cigarette papers "tobacco products"?
No. They contain no tobacco. The AG noted that the proposal repealed cigarette paper taxes, but the title only mentioned "tobacco and tobacco products." Voters seeing the title would not have known cigarette papers were also affected.
Can the sponsor resubmit?
Yes. The AG's rejection includes specific instructions for redesign. A revised proposal addressing each identified defect can be submitted. Arkansas does not limit the number of submissions.
Does this opinion rule on the merits of repealing tobacco taxes?
No. The AG explicitly noted ballot-title certification is unrelated to the merits. The rejection is purely procedural.
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 substitution. § 7-9-107(d)(2) requires the title "briefly and concisely state the purpose [of] the proposed measure." § 7-9-107(e) authorizes rejection.
Independent product doctrine. Multiple AG opinions (e.g., Ark. Att'y Gen. Ops. 2023-098, 2018-112, 2013-112) hold that the AG cannot manufacture a ballot title where the sponsor has not submitted a summary.
Bailey v. McCuen "essential facts" rule. 318 Ark. 277 (1994). Omission of essential facts that would give voters serious ground for reflection is misleading.
Roberts v. Priest doctrine. 341 Ark. 813 (2000). Ambiguities in the underlying measure's text doom any ballot title.
Citations
- A.C.A. § 7-9-107 (sponsor submission and AG review)
- A.C.A. § 7-9-107(d)(1) (substitute and certify)
- A.C.A. § 7-9-107(d)(2) (briefly and concisely state purpose)
- A.C.A. § 7-9-107(e) (rejection authority)
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
- Ark. Att'y Gen. Ops. 2023-098, 2018-112, 2013-112 (independent product doctrine)
Source
Original opinion text
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).
TIM GRIFFIN
ATTORNEY GENERAL
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.