What changes did the Arkansas Attorney General make to the proposed ballot title for the 2024 amendment that would have repealed the Pope County casino license and required local voter approval for new casinos?

Plain-English summary

A sponsor revised a proposed Arkansas constitutional amendment after the AG rejected an earlier popular name and ballot title in Opinion No. 2024-034. The proposed amendment would reduce the casino licenses Amendment 100 requires the Racing Commission to issue from four to three, repeal its Pope County authorization, revoke a Pope County license issued before the proposal's effective date, and require a countywide special election for a future license in certain other counties. The AG reviewed the revised wording and substituted and certified a popular name and ballot title. He stated that certification was unrelated to the measure's merits.

The proposed popular name said local voter approval would be required for "any new casino licenses." The measure's actual condition was narrower: it applied if a later constitutional amendment authorized a license outside the specified Crittenden, Garland, and Jefferson County licenses. To avoid a misleading popular name, the AG changed "any" to "certain."

The proposed ballot title also said "a majority of the voters in the county." The AG cited Arkansas Supreme Court decisions interpreting such wording as a majority of those who actually vote on the issue, rather than everyone eligible to vote. He changed the title to say "a majority of those in the county who vote at the election." If the sponsor intended a different voting threshold, the AG said the sponsor could change the measure and resubmit it.

Finally, the AG found the proposed title's description of the special-election requirement misleading because it implied a vote in any county where any future casino was proposed. To better reflect the proposal's limited scope, he replaced the first "any" with "certain" and the second with "a." He made minor grammatical changes and certified the substituted wording. His opinion does not state what happened in signature collection, at the ballot, or after an election.

What this means for you

Arkansas voters and Pope County residents

This opinion describes a proposal to remove the Pope County casino authorization and to change the process for certain future casino licenses. It records what the AG certified for petition circulation; it does not establish that the proposal became law. Read the certified title and measure text separately from the AG's decision to certify their wording.

Ballot measure sponsors

Check that the popular name and title describe the measure's actual scope. Here, "any new casino licenses" overstated a requirement tied to a future constitutional amendment and licenses outside three specified counties. The AG also treated the voting threshold as material: if you mean something other than a majority of people who vote on the question, the opinion says to state it in the measure and resubmit.

The AG identified a separate wording error in the measure's text: "quorum county in the court" where it should say "quorum court in the county." He said the error did not require rejection here but suggested correcting it. He also said the required instructions to canvassers and signers must precede every petition under A.C.A. § 7-9-108.

Election lawyers and reporters

The AG's certified title states that the proposed county election would arise if a future constitutional amendment authorized a casino license in a county outside the named existing licenses. It describes the county quorum court calling the election by ordinance and the county board publishing the ordinance. The opinion confines itself to name and title certification; it supplies no later election history.

Common questions

Did the AG approve the proposed amendment's policy?
No. He expressly said that certification was unrelated to his view of the measure's merits and that he was not authorized to consider them in this review.

Did this opinion decide whether the proposal reached or passed the 2024 ballot? No. It certified substitute petition wording in March 2024. The opinion contains no finding about later signatures, litigation, ballot placement, or results.

Why did "majority of the voters" need clarification?
The AG cited Arkansas Supreme Court cases holding that comparable phrases have a fixed meaning: a majority of those who actually voted on the issue. He changed the title to say "a majority of those in the county who vote at the election" to make that denominator clear.

Why did the AG change "any" to "certain"?
The measure's local-vote requirement did not apply to every conceivable new casino license. It was tied to a future constitutional amendment allowing a license outside the three specified counties. The original popular name and ballot-title summary overstated that scope.

What was certified?
A substituted popular name and ballot title, printed in full in the opinion. The certified popular name begins: "An amendment requiring local voter approval in a countywide special election for certain new casino licenses and repealing authority to issue a casino license in Pope County, Arkansas."

Legal basis in the opinion

The AG cited A.C.A. § 7-9-107(d)(1) for authority to "substitute and certify a more suitable and correct ballot title and popular name." On title completeness, he quoted the Arkansas Supreme Court's requirement to include an "essential fact which would give the voter serious ground for reflection." His discussion of Glover v. Hot Springs Kennel Club quotes the court's construction of "a majority of the qualified electors of the county" as "a majority of those who voted."

Source

• Official Arkansas Attorney General opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2024-046, March 20, 2024; official six-page PDF, including footnotes)

Original opinion text

Opinion No. 2024-046

March 20, 2024

Elizabeth Robben Murray, Attorney
Friday, Eldredge & Clark LLP
400 West Capitol Avenue, Suite 2000
Little Rock, Arkansas 72201

Dear Ms. Murray:

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. In Opinion No. 2024-034, I rejected a prior version of your proposed initiated amendment to the Arkansas Constitution. You have now revised the language of your proposal and submitted it for certification.

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 requiring local voter approval in a countywide special
   election for any new casino licenses and repealing authority to issue a casino
   license in Pope County, Arkansas.

                                   Ballot Title
   

   An amendment to the Arkansas Constitution, Amendment 100, § 4,
   subsection (i) to reduce the number of casino licenses that the Arkansas
   Racing Commission is required to issue from four to three; amending
   Amendment 100, § 4, subsections (k) through (n) to repeal authorization for
   a casino in Pope County, Arkansas and to repeal the authority of the
   Arkansas Racing Commission to issue a casino license for Pope County,
   Ms. Elizabeth Robben Murray
   Opinion No. 2024-046
   Page 2

   Arkansas; amending Amendment 100 § 4, to add subsection (s), providing
   that if the Arkansas Racing Commission, or other governing body, issues a
   casino license for a casino in Pope County, Arkansas prior to the effective
   date of this Amendment, then said license is revoked on the effective date
   of this Amendment; amending Amendment 100 § 4, to add subsection (t),
   providing that if a future constitutional amendment authorizes the issuance
   of a casino license in any county other than those issued now or hereafter
   for Crittenden County (to Southland Racing Corporation), Garland County
   (to Oaklawn Jockey Club, Inc.) and Jefferson County (to Downstream
   Development Authority of the Quapaw Tribe of Oklahoma and later
   transferred to Saracen Development, LLC), then the quorum court of each
   county where a casino is to be located shall call a special election by
   ordinance to submit the question of whether to approve of a casino in the
   county; amending Amendment 100 § 4, to add subsection (t)(1)-(3), setting
   the date for the special election and requiring the ordinance calling the
   special election to state the election date and to specify the format of the
   question on the ballot as “FOR a casino in [ ] County” and “AGAINST a
   casino in [ ] County,” and, “The question presented to voters must include
   whether or not a casino may be located in the county”—“A casino is defined
   as a facility where casino gaming is conducted”; amending Amendment 100
   § 4, to add subsection (t)(4), requiring the county board of election
   commissioners to publish the ordinance calling the special election as soon
   as practicable in a newspaper of general circulation in the county in which
   the special election is held; amending Amendment 100 § 4, to add
   subsection (t)(5), requiring a majority of the voters in any county where any
   future casino is proposed to be located to approve of the casino at the special
   election before the Arkansas Racing Commission, or other governing body,
   may accept any applications for a casino license in that county; making this
   Amendment effective on and after November 13, 2024; providing that the
   provisions of this Amendment are severable in that if any provision or
   section of this Amendment or the application thereof to any person or
   circumstance is held invalid, such invalidity shall not affect any other
   provision or application that can be given effect without the invalid
   provision or application; and repealing all laws or parts of laws in conflict
   with this Amendment.

2. Rules governing my review. In Opinion No. 2024-034, 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 them by reference.

3. Application to your popular name. Although the popular name need not contain
   detailed information or include exceptions that might be required of a ballot title, the Ms. Elizabeth Robben Murray Opinion No. 2024-046 Page 3

popular name must not be misleading.1 And, as I noted in Opinion 2024-034, the popular name’s length itself is not misleading.2 But a word used in the popular name does not accurately reflect the proposed measure or the ballot title (emphasis added): it requires “voter approval in a countywide special election for any new casino licenses.” The proposed measure itself is narrower (emphases added): it requires voter approval in a countywide special election “[i]f a constitutional amendment authorizes or otherwise allows the issuance of a casino license in any county other than those issued now or hereafter for Crittenden County (to Southland Racing Corporation), Garland County (to Oaklawn Jockey Club, Inc.) and Jefferson County (to Downstream Development Authority of the Quapaw Tribe of Oklahoma and later transferred to Saracen Development, LLC).”3 Therefore, I am substituting and certifying a “more suitable” popular name.4 The popular name provided below is substituted and certified for your proposed constitutional amendment.

4. Application to your ballot title. Having reviewed the text of your proposed
   constitutional amendment and ballot title, I believe the following changes to your ballot title are necessary to ensure that your ballot title clearly and accurately sets forth the purpose of your proposed initiated amendment to the Arkansas Constitution:5

   • “Majority of the voters.” Section 3 of the measure’s text adds subsection (t)(5) to
   Amendment 100, § 4 (emphasis added): “A majority of the voters in the county
   where the casino is proposed to be located must approve of a casino at the special
   election.” While you may intend that phrase to mean “registered voters,” the
   Arkansas Supreme Court has long defined “a majority of the voters” to mean the
   majority of those who actually vote on an issue, not those that could have voted.6

1
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); see also Ark. Att’y Gen. Op. 2024-034 (articulating this rule in the opinion issued for your original submission for certification). 2 Although I did note in that same opinion that you may wish to shorten the popular name to better the meet the purpose of popular names. Here, your popular name is one word shorter than it was previously. 3 To ensure the popular name is not misleading, and to adequately apprise the voters of the licenses following the “other than” language, approximately fifty-five words would need to be added to the popular name— currently at twenty-eight words. 4 See A.C.A. § 7-9-107(d)(1) (authorizing the Attorney General to “substitute and certify a more suitable and correct ballot title and popular name for each amendment or act”). 5 In the measure’s text, you recite Amendment 100, § 4(i)–(n), striking language to indicate what you intend to remove from Amendment 100 and underlining language to indicate what you intend to add to Amendment

100. But when reciting Amendment 100, § 4(n), the measure’s text contains the phrase “quorum county in
     the court” instead of “quorum court in the county.” While that is not a reason for rejection here, the measure’s text contains a scrivener’s error that you may wish to correct. 6 E.g., Vance v. Johnson, 238 Ark. 1009, 1013, 386 S.W.2d 240, 243 (1965); Glover v. Hot Springs Kennel Club, Inc., 230 Ark. 544, 548–53, 323 S.W.2d 902, 904–07 (1959); Browning v. Waldrip, 169 Ark. 261, 273 S.W. 1032, 1032–33 (1925); Graves v. McConnell, 162 Ark. 167, 257 S.W. 1041, 1043 (1924); Watts v. Ms. Elizabeth Robben Murray Opinion No. 2024-046 Page 4

        In Glover v. Hot Springs Kennel Club, Inc., the Arkansas Supreme Court reviewed
        a state statute that required “a majority of the qualified electors” of a county to
        approve a greyhound racing franchise.7 There, the legal question was whether “it
        was necessary for the greyhound racing proposition submitted to the voters of
        Garland County to receive merely a majority of those voting on the proposition at
        the election, or was it necessary for the proposition to receive the vote of the
        majority of all of the 17,245 poll tax holders of Garland County.”8
     
        Affirming and noting “an impressive line” of “on point” decisions stretching back
        to 1885,9 the Glover Court held that “a majority of the qualified electors of the
        county” has “a fixed legal meaning, to-wit: a majority of those who voted.”10 And
        while that case concerned certain statutory language—“majority of the qualified
        electors of the county”—the Court cited Arkansas Supreme Court cases that held
        the same based on different statutory language.11 For instance, the Glover Court
        cites Browning v. Waldrip, which held that “majority of the landowners in a
        district” means “a majority of the landowners in the district voting at the election.”12
        The Arkansas Supreme Court holdings over the last 138 years recognize that the
        language “majority of” those voting in a particular voting district or jurisdiction has
        a fixed legal meaning: those who actually voted at the particular election.
     
        So, in the ballot title, I have changed “majority of the voters in the county” to
        “majority of those in the county who vote at the election.” If instead you intend to
        vary from the “fixed legal meaning” that the Arkansas Supreme Court cases cited
        herein describe, you may make those changes and resubmit your popular name,
        ballot title, and full text of the proposed measure for certification.
     

     • Ballot title summary. The Arkansas Supreme Court has interpreted the Arkansas
     Constitution to require that sponsors include all material in the ballot title that
     qualifies as an “essential fact which would give the voter serious ground for
     reflection.”13 But your proposed constitutional amendment contains a material
     provision that does not appear in your ballot title, which would likely give voters

Bryan, 153 Ark. 313, 240 S.W. 405, 406 (1922); Vance v. Austell, 45 Ark. 400, 406–07 (1885); Ark. Att’y Gen. Op. 2004-195. 7 230 Ark. at 548–53, 323 S.W.2d at 904–07.
8
Id., 230 Ark. at 548, 323 S.W.2d at 904.
9
Id., 230 Ark. at 548–52, 323 S.W.2d at 904–07.
10
Id., 230 Ark. at 553, 323 S.W.2d at 907.
11
Id., 230 Ark. at 548–52, 323 S.W.2d at 904–07.
12
169 Ark. at 261, 273 S.W. at 1032–33.
13
Bailey, 318 Ark. at 285, 884 S.W.2d at 942.
Ms. Elizabeth Robben Murray
Opinion No. 2024-046
Page 5

“serious ground for reflection” and would render the ballot tile misleading by omission. The ballot title inaccurately and incompletely summarizes the measure’s text by stating it requires “a majority of the voters in any county where any future casino is proposed to be located to approve of the casino at the special election.” So I have replaced the first instance of “any” with “certain” and the second instance of “any” with “a” to better summarize the measure’s text.

• Grammatical changes. I also made a few minor grammatical changes and clarifications to your ballot title to ensure it is not misleading or confusing to voters.
A comma has been added after each of the following phrases: “subsection (i)” and “subsections (k) through (n).” I also expanded the space between the brackets used in the ballot title.

5. Substitution and certification. With the above changes incorporated, the following
   popular name and ballot title are substituted and certified:

                                   Popular Name
   

   An amendment requiring local voter approval in a countywide special
   election for certain new casino licenses and repealing authority to issue a
   casino license in Pope County, Arkansas.

                                    Ballot Title
   

   An amendment to the Arkansas Constitution, Amendment 100, § 4,
   subsection (i), to reduce the number of casino licenses that the Arkansas
   Racing Commission is required to issue from four to three; amending
   Amendment 100, § 4, subsections (k) through (n), to repeal authorization
   for a casino in Pope County, Arkansas and to repeal the authority of the
   Arkansas Racing Commission to issue a casino license for Pope County,
   Arkansas; amending Amendment 100 § 4, to add subsection (s), providing
   that if the Arkansas Racing Commission, or other governing body, issues a
   casino license for a casino in Pope County, Arkansas prior to the effective
   date of this Amendment, then said license is revoked on the effective date
   of this Amendment; amending Amendment 100 § 4, to add subsection (t),
   providing that if a future constitutional amendment authorizes the issuance
   of a casino license in any county other than those issued now or hereafter
   for Crittenden County (to Southland Racing Corporation), Garland County
   (to Oaklawn Jockey Club, Inc.) and Jefferson County (to Downstream
   Development Authority of the Quapaw Tribe of Oklahoma and later
   transferred to Saracen Development, LLC), then the quorum court of each
   county where a casino is to be located shall call a special election by
   ordinance to submit the question of whether to approve of a casino in the
   county; amending Amendment 100 § 4, to add subsection (t)(1)-(3), setting
   the date for the special election and requiring the ordinance calling the
   Ms. Elizabeth Robben Murray
   Opinion No. 2024-046
   Page 6

   special election to state the election date and to specify the format of the
   question on the ballot as “FOR a casino in [ ] County” and “AGAINST a
   casino in [ ] County,” and, “The question presented to voters must include
   whether or not a casino may be located in the county”—“A casino is defined
   as a facility where casino gaming is conducted”; amending Amendment 100
   § 4, to add subsection (t)(4), requiring the county board of election
   commissioners to publish the ordinance calling the special election as soon
   as practicable in a newspaper of general circulation in the county in which
   the special election is held; amending Amendment 100 § 4, to add
   subsection (t)(5), requiring a majority of those in the county who vote at the
   election in certain counties where a future casino is proposed to be located
   to approve of the casino at the special election before the Arkansas Racing
   Commission, or other governing body, may accept any applications for a
   casino license in that county; making this Amendment effective on and after
   November 13, 2024; providing that the provisions of this Amendment are
   severable in that if any provision or section of this Amendment or the
   application thereof to any person or circumstance is held invalid, such
   invalidity shall not affect any other provision or application that can be
   given effect without the invalid provision or application; and repealing all
   laws or parts of laws in conflict with this Amendment.

Under A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and the associated penalties for violations. I have included a copy of the instructions that should be incorporated into your petition before circulation.

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

Sincerely,

TIM GRIFFIN
Attorney General