Did the Arkansas AG approve the popular name and ballot title for a constitutional amendment to make government transparency a citizen's right?
Plain-English summary
Robert Steinbuch submitted a proposed constitutional amendment titled "The Arkansas Government Disclosure Amendment" to the Attorney General for the certification required before petition circulation can begin. The proposal would have added a constitutional right to government information, restricted legislative changes to transparency laws without voter approval, allowed citizen lawsuits against the state for transparency violations, and waived sovereign immunity in those suits.
Attorney General Tim Griffin had previously reviewed an essentially identical version of the proposal in Opinion No. 2024-007, where he certified the popular name as submitted but substituted his own ballot title. Here, he applied the same approach again. The AG substituted both the popular name and the ballot title and certified the revised versions. The substitute popular name added a year identifier ("of 2026") and the substitute ballot title used plainer language while preserving the substantive content of the proposal.
With certification, sponsors can now begin collecting signatures on petitions, using the substituted language. The AG's review is procedural; he is not authorized to consider the merits of the underlying measure.
What this means for you
If you are a sponsor or organizer of an Arkansas ballot measure
The AG's role under A.C.A. § 7-9-107 is to certify or reject the popular name and ballot title before circulation. He has authority to substitute his own language, but not to alter the underlying text of the proposed measure. Plan for that. If your draft has structural problems in its substantive text, the AG cannot fix them and you have to redesign and resubmit.
The AG used a substituted version here, so if you are relying on the certified language for canvassing materials and petition forms, use exactly the substituted popular name and ballot title from the opinion, not the version you originally submitted.
If you are a canvasser or potential signer
Pay attention to the certified ballot title on the petition. Per A.C.A. § 7-98-108, canvasser and signer instructions must precede every petition. The opinion notes that the 2024 version of those instructions accompanied the certification but may be revised in 2025 if the legislature changes the underlying statute. Before signing, look for current canvasser instructions on the petition.
If you are a voter following Arkansas transparency policy
This proposal would constitutionalize a citizen's right to government information, require voter approval before the legislature could change transparency laws (subject to a two-thirds emergency-referral mechanism and a nine-tenths immediate-effect mechanism), and let private citizens sue the state for transparency failures with attorney's fees recoverable. Whether it makes the ballot depends on signature collection.
If you are a state attorney or government counsel
Note the sovereign-immunity waiver language. The proposal "abrogat[es] the sovereign immunity of the State of Arkansas in lawsuits concerning government transparency and allow[s] plaintiffs to recover attorney's fees in such suits." If passed, this would create a new constitutional cause of action against state agencies for FOIA-style violations, with fee shifting. The substantive scope ("government transparency" defined as the obligation to share or deliver information) is broad.
Common questions
Q: What is the difference between a popular name and a ballot title?
A: The popular name is the short label for the measure (think a headline). The ballot title is the longer, more detailed summary that voters see on the actual ballot. Both have to be reviewed and certified by the AG before petition circulation.
Q: Why did the AG change the language instead of approving it as submitted?
A: Under A.C.A. § 7-9-107, the AG can either certify the language as submitted or substitute his own and certify the substituted version. He cannot certify language that misleads voters about what the measure does. The opinion does not detail his specific objections to the original wording for this filing, but it incorporates the analysis from Opinion 2024-007 on a near-identical earlier draft.
Q: Can the AG block a ballot measure on the merits?
A: No. The AG's certification authority is limited to whether the popular name and ballot title fairly inform voters of what the measure does. The AG explicitly disclaims any authority to consider the measure's merits.
Q: What happens after certification?
A: Sponsors can begin circulating petitions for signatures. They need a constitutional minimum of qualified voter signatures within statutory deadlines to qualify for the ballot. If they hit those numbers and the petitions clear the Secretary of State's review, the measure goes to voters at the next general election (here, November 4, 2026).
Q: Does this amendment, if passed, override Arkansas FOIA?
A: No. It would coexist with Arkansas FOIA but constitutionalize a transparency right and limit how the legislature can amend transparency laws. The amendment also lets citizens sue the state for failures to comply with transparency requirements, including recovery of attorney's fees, and abrogates sovereign immunity for those suits.
Q: Would the amendment apply retroactively?
A: The proposed effective date is November 4, 2026. Whether any of its provisions reach pre-2026 conduct depends on how courts interpret the text after passage.
Background and statutory framework
Under A.C.A. § 7-9-107, sponsors of an initiated amendment or initiated act submit the proposed text, popular name, and ballot title to the Attorney General. The AG must either certify them as submitted, substitute and certify his own versions, or reject and instruct the sponsor to redesign. Certification is a prerequisite to legal circulation of petitions for signatures.
The AG's authority is limited:
- He can change the popular name and ballot title (and did here).
- He cannot change the underlying text of the proposed amendment.
- He cannot consider whether the policy is good or bad.
- His certification is not a constitutional opinion on whether the measure, if passed, would survive judicial review.
A.C.A. § 7-98-108 separately requires that canvasser and signer instructions appear on every petition, informing them of constitutional privileges and penalties. These instructions are typically incorporated by the AG's office and may be updated in odd-numbered years to reflect legislative changes.
The substantive text of this proposal would do several things:
- Establish "government transparency" as a constitutional right of Arkansas citizens, defined as the government's obligation to share or deliver information to citizens.
- Prohibit the General Assembly from passing transparency laws without voter approval, except by referring the law to the people by a two-thirds vote, or putting a law into immediate effect by a nine-tenths emergency vote subject to later voter ratification.
- Clarify that any law referred under this amendment is not a referred constitutional amendment under Article 19, Section 22.
- Prohibit the General Assembly from amending the transparency amendment by a referred constitutional amendment under Article 19, Section 22.
- Preserve the people's authority to amend the transparency amendment under Article 5, Section 1.
- Abrogate sovereign immunity for transparency suits and allow plaintiffs to recover attorney's fees.
- Declare the amendment self-executing and severable.
- Set the effective date as November 4, 2026.
Citations and references
Statutes:
- A.C.A. § 7-9-107 (review and certification of popular names and ballot titles)
- A.C.A. § 7-98-108 (instructions to canvassers and signers)
Prior AG opinions referenced:
- Ark. Att'y Gen. Op. 2023-123 (rules governing AG review of popular names and ballot titles)
- Ark. Att'y Gen. Op. 2024-007 (review and certification of identical earlier draft, except for effective date)
Source
Original opinion text
Opinion No. 2024-070
July 18, 2024
Robert Steinbuch
Via email only: [email protected]
Dear Mr. Steinbuch:
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 Attorney General Opinion 2024-007, I reviewed the text, popular name, and ballot title of a proposed measure that was identical, except for the effective date, to your proposed text, popular name, and ballot title. There, I certified the popular name as submitted and substituted and certified a ballot title.
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
The Arkansas Government Disclosure Amendment
Ballot Title
An Amendment to the Arkansas Constitution to Create the "Arkansas Government Disclosure Amendment";
Establishing Government's Obligation to Share Information With and Deliver Information to Citizens as a Right;
Prohibiting the General Assembly From Making a Law Concerning Government's Obligation to Share Information With and Deliver Information to Citizens Without Approval of the People, But Allowing a Two Thirds Majority of the General Assembly to Refer That Law to the People to Be Approved or Rejected at the Next General Election;
Permitting the General Assembly, by a Nine Tenths Vote and in the Case of An Emergency, to Make a Referred Law Take Immediate Effect Until Approved or Rejected at the Next General Election;
Clarifying That Any Act Referred Under this Amendment is Not a Referred Constitutional Amendment Under Article 12, Section 22 of the Arkansas Constitution;
Prohibiting the General Assembly From Referring Future Amendments to the Arkansas Government Disclosure Amendment to the People Under Article 12, Section 22;
Preserving the People's Power to Amend the Arkansas Government Disclosure Amendment Under Article 5, Section 1 of the Arkansas Constitution;
Empowering Arkansas Citizens to Sue the State of Arkansas in Court and Recover Damages and Attorney's Fees for Government's Failure to Comply with the Requirements of Arkansas Law Concerning Government Openness and Disclosure;
Clarifying That This Amendment does not Alter the Constitutional Powers of the State Supreme Court;
Clarifying That This Amendment Does Not Alter the Constitutional Powers of the General Assembly to Determine the Rules That Affect the Openness of State Legislative Meetings;
Declaring That All Provisions of the Constitution, Statutes, and Common Law of This State To the Extent Inconsistent Or In Conflict With Any Provision of This Amendment Are Expressly Declared Null and Void;
Providing That The Provisions of This Amendment Are Severable; And
Stating That the Amendment Becomes Effective on November 4, 2026.
2. Rules governing my review. In Attorney General Opinion 2023-123, which I issued in response to a previous request for review and certification of a similar proposed measure, I explained the relevant law governing my review of popular names and ballot titles. Rather than repeat that explanation, I incorporate it here by reference.
3. Application. Having reviewed the text of your proposed measure, as well as your proposed popular name and ballot title, I substitute and certify the following popular name and ballot title for your proposed measure:
Popular Name
The Arkansas Government Disclosure Amendment of 2026
Ballot Title
An amendment to the Arkansas Constitution providing that government transparency is a right of Arkansas citizens; defining "government transparency" as the government's obligation to share information with citizens or to deliver information to citizens; prohibiting the General Assembly from making a law concerning government transparency without approval by a vote of the people, but allowing a two-thirds majority of the General Assembly to refer such a law to the people to be approved or rejected at the next general election; permitting the General Assembly, by a nine-tenths vote and in the case of an emergency, to make a law concerning government transparency take immediate effect until approved or rejected by a vote of the people at the next general election; clarifying that any act the General Assembly refers to the people under this Amendment is not a referred constitutional amendment under article 19, section 22 of the Arkansas Constitution; prohibiting the General Assembly from amending this Amendment by referring an amendment to the people under article 19, section 22 of the Arkansas Constitution; clarifying that the people of Arkansas may exercise their authority under article 5, section 1 to amend this Amendment or an Arkansas statute concerning government transparency; abrogating the sovereign immunity of the State of Arkansas in lawsuits concerning government transparency and allowing plaintiffs to recover attorney's fees in such suits; clarifying that this Amendment does not alter the constitutional powers of the State Supreme Court; clarifying that this Amendment does not alter the constitutional powers of the General Assembly to determine the rules that affect the openness of state legislative meetings; declaring that all provisions of the Constitution, statutes, and common laws of this State are declared null and void to the extent they are inconsistent or in conflict with any provision of this Amendment; declaring that this Amendment's provisions are severable; and stating that this Amendment is effective November 4, 2026.
Under A.C.A. § 7-98-108, 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. Please note, however, that these instructions may be revised in 2025 to incorporate any relevant legislative changes.
Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General