What changes did the Arkansas Attorney General make to the proposed ballot title for the 2024 amendment that would have repealed the Pope County casino license and required local voter approval for new casinos?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
In November 2018, Arkansas voters passed Amendment 100, which authorized four casino licenses statewide: Crittenden County (Southland), Garland County (Oaklawn), Jefferson County (Saracen, originally Quapaw Tribe), and Pope County (which became contested through years of litigation). A proposed 2024 constitutional amendment would have:
- Reduced the number of casino licenses required from four to three.
- Repealed the authorization for a Pope County casino.
- Revoked any Pope County casino license issued before the amendment's effective date.
- Required, for any future casino license outside the three named counties, a majority vote in a county-wide special election.
Sponsors submitted the amendment for AG review. The AG had previously rejected an earlier version (Opinion 2024-034). On second submission, the AG substituted and certified a corrected popular name and ballot title.
Three substantive changes:
-
"Any new casino licenses" replaced with "certain new casino licenses." The original popular name said voter approval would be required for "any new casino licenses," but the measure's text only required it for new licenses outside the three already authorized counties (Crittenden, Garland, Jefferson). Calling this "any new licenses" was misleading. To accurately describe the actual scope (voter approval for new licenses except in those three counties) would require adding 55+ words to a 28-word popular name. Cleaner fix: change "any" to "certain."
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"Majority of the voters" replaced with "majority of those in the county who vote at the election." This was the major correction. The Arkansas Supreme Court has held since 1885 that "majority of the voters" has a "fixed legal meaning" of those who actually voted, not those who could have voted. Glover v. Hot Springs Kennel Club, Inc. (1959), reviewing a greyhound racing statute, applied this rule to a similar phrase. Browning v. Waldrip (1925) applied it to "majority of the landowners in a district." The Court has reinforced this rule across 138 years. If the sponsor wanted "majority of registered voters" (a different standard, much harder to meet), the sponsor needed to say so explicitly and resubmit.
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Missing material provision added to ballot title. The Arkansas Supreme Court requires that ballot titles include all "essential facts which would give the voter serious ground for reflection" (Bailey v. McCuen, 1994). The ballot title omitted the substantive scope of the special-election requirement. The AG added language summarizing it.
Plus minor grammatical fixes: comma placement, expanding bracket spacing.
The substituted ballot title was certified.
What this means for you
Pope County residents and Arkansas voters
This proposed amendment would have rolled back the 2018 Amendment 100 authorization for a Pope County casino. The amendment did not appear on the November 2024 ballot (it failed to gather sufficient signatures or was challenged out). The AG's certification process is a procedural step, not a guarantee the amendment will reach voters. Sponsors still need to collect the signatures, survive any pre-election court challenges to the title, and pass at the polls.
If a future amendment along similar lines is filed, expect the same scrutiny on the "majority of voters" phrase. The fixed-legal-meaning rule means a sponsor who wants a tougher voter-approval standard (like "majority of all registered voters") has to write it that way explicitly.
Ballot initiative sponsors in Arkansas
Three lessons:
First, the popular name has to match the measure's text accurately, not aspirationally. The popular name here described the special-election requirement as applying to "any new casino licenses." The measure actually carved out the three already-authorized counties. The mismatch made the popular name misleading. The AG's fix was a one-word change ("any" to "certain"), which the AG preferred over a 55-word expansion.
Second, "majority of the voters" is a term of art under Arkansas law. The Arkansas Supreme Court since 1885 has consistently held this phrase means a majority of those who actually voted on the question, not a majority of all eligible voters. Glover, Browning, Graves, Watts, Vance, and Austell all stand for this rule. If you want a different standard, write it different. "Majority of registered voters" or "majority of qualified electors" are explicit alternatives.
Third, your ballot title has to summarize every material provision. The Arkansas Supreme Court treats omission of "essential facts" as misleading. If a provision would give a reasonable voter "serious ground for reflection," include it.
Election law attorneys
The opinion provides a useful refresher on the "majority of voters" doctrine. Glover v. Hot Springs Kennel Club, Inc., 230 Ark. 544 (1959), is the lead case. The doctrine reaches not just "majority of the voters" but parallel phrases like "majority of landowners," "majority of qualified electors," etc. Drafters who intend a stricter standard (registered voters, all eligible voters) need explicit, non-traditional phrasing to displace the default.
The opinion also flagged a scrivener's error in the proposed measure ("quorum county in the court" instead of "quorum court in the county"). The AG declined to reject on that basis but advised the sponsor to fix it. Drafting precision matters in initiated amendments because the text becomes the constitution.
Casino industry attorneys
If you are advising a casino-industry stakeholder watching Arkansas amendment activity, treat this opinion as a marker. It records exactly which counties had authorized licenses (Crittenden/Southland, Garland/Oaklawn, Jefferson/Saracen-Quapaw) at the time of the proposed amendment. The Pope County license was contested. A future amendment that reaches the ballot and passes could substantially change the casino landscape. Track signature collection and any pre-election challenges.
Common questions
Did this amendment pass?
The amendment did not appear on the November 2024 ballot. The AG's certification is one step among several. Sponsors must collect signatures, survive any pre-election court challenges, and pass at the polls. This proposed amendment did not advance through those subsequent stages.
What was the Pope County casino controversy at the time?
Amendment 100 (passed 2018) authorized one casino license each in Crittenden, Garland, and Jefferson counties (the first three were quickly issued and operational), plus a fourth in Pope County. The Pope County license became contested through years of litigation between Cherokee Nation Businesses, Gulfside Casino Partnership, and Choctaw Nation, with state regulatory action and court appeals delaying issuance. The 2024 proposed amendment would have ended the Pope County controversy by repealing the authorization entirely.
Why does "majority of the voters" mean those who voted, not all registered voters?
The Arkansas Supreme Court since 1885 has held that the phrase has a "fixed legal meaning" of those who actually voted. The rule was first applied in Vance v. Austell, 45 Ark. 400 (1885). It was reaffirmed in Browning v. Waldrip, 169 Ark. 261 (1925); Graves v. McConnell, 162 Ark. 167 (1924); Watts v. Bryan, 153 Ark. 313 (1922); Glover v. Hot Springs Kennel Club, Inc., 230 Ark. 544 (1959); and Vance v. Johnson, 238 Ark. 1009 (1965). The Glover case is particularly clear: a majority of "qualified electors of the county" means a majority of those who voted, not all 17,000+ poll-tax holders.
Can a sponsor write a different rule?
Yes. A sponsor who wants "a majority of all registered voters" (or any other stricter standard) just needs to write it explicitly. The default rule applies when the measure uses traditional phrasing without specifying a different denominator.
What about the requirement that the special election be held by ordinance of the quorum court?
The proposed measure specified that the quorum court would call the special election by ordinance and that the county board of election commissioners would publish the ordinance. This is a substantive procedural mechanism the AG accepted on second submission.
What did the AG mean by "scrivener's error"?
A drafting mistake. The measure said "quorum county in the court" when it clearly meant "quorum court in the county." The AG noted but did not reject for it. The sponsor had the option to fix and resubmit, or to leave it. Any visible error in the constitutional text could be exploited in a post-election challenge.
Background and statutory framework
AG ballot-title review. A.C.A. § 7-9-107 authorizes AG review of submitted measures. The AG can certify, substitute and certify, or reject. § 7-9-107(d)(1) authorizes substitution.
Popular name standards. Chaney v. Bryant, 259 Ark. 294 (1976), and Moore v. Hall, 229 Ark. 411 (1958), require popular names to be neither misleading nor partisan.
Majority of voters doctrine. A long line of Arkansas Supreme Court decisions establish that "majority of the voters" or comparable phrases mean those who voted, not those who could have voted:
- Vance v. Austell, 45 Ark. 400 (1885)
- Watts v. Bryan, 153 Ark. 313, 240 S.W. 405 (1922)
- Graves v. McConnell, 162 Ark. 167, 257 S.W. 1041 (1924)
- Browning v. Waldrip, 169 Ark. 261, 273 S.W. 1032 (1925)
- Glover v. Hot Springs Kennel Club, Inc., 230 Ark. 544, 323 S.W.2d 902 (1959) (greyhound racing franchise statute)
- Vance v. Johnson, 238 Ark. 1009, 386 S.W.2d 240 (1965)
Ballot title material-provision requirement. 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.
Petition instructions. A.C.A. § 7-9-108 requires petitions to include canvasser/signer instructions.
Amendment 100. Adopted November 2018. Section 4 authorizes four casino licenses (Crittenden, Garland, Jefferson, Pope). The Pope County license remained contested at the time of this 2024 opinion.
Citations
- A.C.A. § 7-9-107 (sponsor submission and AG review)
- A.C.A. § 7-9-107(d)(1) (substitute and certify authority)
- A.C.A. § 7-9-108 (canvasser/signer instructions)
- Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
- Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
- Vance v. Austell, 45 Ark. 400 (1885)
- Watts v. Bryan, 153 Ark. 313, 240 S.W. 405 (1922)
- Graves v. McConnell, 162 Ark. 167, 257 S.W. 1041 (1924)
- Browning v. Waldrip, 169 Ark. 261, 273 S.W. 1032 (1925)
- Glover v. Hot Springs Kennel Club, Inc., 230 Ark. 544, 323 S.W.2d 902 (1959)
- Vance v. Johnson, 238 Ark. 1009, 386 S.W.2d 240 (1965)
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
Source
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