Why was the proposed Arkansas constitutional amendment to overhaul the initiative and referendum process rejected by the Attorney General in March 2025?

Subject

The Attorney General's first rejection of attorney David Couch's proposed initiated constitutional amendment titled "An Amendment to Amend the Initiative and Referendum Process," covering ambiguities in the text and ballot title and an unworkable redesign of the AG's certification authority.

Plain-English summary

In March 2025, Little Rock attorney David Couch submitted a proposed constitutional amendment to Attorney General Tim Griffin under A.C.A. § 7-9-107, asking the AG to certify the popular name "AN AMENDMENT TO AMEND THE INITIATIVE AND REFERENDUM PROCESS" and the accompanying ballot title. The proposed measure would have made several big changes to how Arkansas voters use the initiative and referendum power, including: limiting the General Assembly's ability to amend or repeal voter-approved measures, requiring pre-circulation AG review and certification within ten days, setting up a 45-day Supreme Court challenge window, requiring under-penalty-of-perjury declarations from petition circulators, and limiting how Article 19, § 22 (the legislature's own constitutional amendment power) could affect this amendment.

The AG rejected it. By statute the AG has three response options: certify, substitute and certify a "more suitable" title, or reject and instruct the sponsor to redesign. The AG concluded the third option was the only available path because the problems were in the text of the measure itself, and the AG cannot rewrite a sponsor's measure.

The AG identified two material ambiguities and one structural defect:

Ambiguity 1: Limit on the General Assembly's Article 19, § 22 power. The measure's text added language to the "Self-Executing" paragraph of Article 5, § 1 saying "This Amendment may only be amended by a constitutional amendment initiated by the people." The ballot title said "this section may only be amended" by initiated amendment. "This Amendment" and "this section" are not the same thing. A reader could not tell whether the limit reached only the new text Couch was adding or the whole of Article 5, § 1.

Ambiguity 2: "Any measure" without the qualifier "approved by a vote of the people." The text changed an existing constitutional clause about voter-approved measures to also restrict legislative amendment of "any measure," dropping the qualifier. Read literally, this could prohibit the General Assembly from amending or repealing any state law it itself passed, which would be a much bigger change than the ballot title described. The ballot title kept the "approved by a vote of the people" qualifier, papering over an ambiguity in the text itself rather than summarizing it.

Structural defect: AG would sometimes be unable to act. The proposal forced the AG to either certify (with the substantive guarantees the proposed text required, like "fair and reasonable understanding of the issues") or reject-and-substitute. It eliminated the AG's current option to send a proposal back for redesign. But the AG cannot edit a sponsor's underlying text; if a measure's text is internally contradictory, no substituted ballot title can fix it. By eliminating the redesign route, the proposal would have created a regulatory dead end where the AG was statutorily required to certify something but functionally unable to do so.

The AG also flagged a list of secondary issues that did not on their own justify rejection: a positional problem with where the legislative-limit language sat in the text, an unclear "such separate vote" reference in a 24-hour emergency-clause provision, and grammatical sloppiness like the use of "and/or" (which the Arkansas Supreme Court has called a "linguistic abomination") and a stray "within in" typo.

The opinion is a careful primer on how Arkansas ballot title review actually works. It walks through the legal standards for popular names (must not mislead or be partisan, must reference the substance of the measure, can be misleading by implication if it covers only a subset of what the measure does) and ballot titles (must be impartial, accurate, free from misleading tendency, conveying an intelligible idea of the scope and significance, brief enough to be read in the voting booth's time limit). It is the kind of opinion any Arkansas initiative drafter should read before submitting.

What this means for you

Initiative petition sponsors

Three concrete drafting takeaways:

1. Match your ballot title language to your measure language exactly. If your text says "this Amendment," your ballot title should also say "this Amendment." If your text says "this section," ballot title says "this section." Variation between the two is treated as ambiguity, not synonymy.
2. Don't drop qualifiers when you cite or amend existing text. When you're modifying an existing constitutional or statutory provision, every word matters. Removing "approved by a vote of the people" from the body of a sentence changes the scope of the sentence; the AG and reviewing courts read these changes the way a contract lawyer reads a redline.
3. Don't try to legislate the AG's review process around itself. The AG cannot edit your text. If you eliminate the AG's reject-and-redesign authority, you create a procedural dead end you don't want.

The list of secondary issues at the end of the opinion is also worth reading for any sponsor: "and/or" is dispreferred under Arkansas Supreme Court usage, "within in" is a typo, "If" capitalized mid-sentence is a typo, and so on. Submitting a proposal with these visible errors is a signal to the AG that the drafting wasn't tight, even when none of them on their own justify rejection.

Election law attorneys

The opinion confirms the workflow under A.C.A. § 7-9-107(e): the AG can reject and instruct redesign when the text of the measure (not just the ballot title) is the problem. The opinion's collected string-cite of prior AG opinions rejecting on text-ambiguity grounds (2016-015, 2015-132, 2014-105, 2014-072, 2013-079, 2013-046, 2013-033, 2011-023, 2010-007, 2009-083, 2008-018, 2005-190, 2002-272, 2001-397, 2001-129, 2001-074, 2000-084, 1999-430) is a useful map of the AG's enforcement pattern on this point.

The Paschall v. Thurston citation is also load-bearing: the Arkansas Supreme Court there held that a popular name can be misleading if it omits a major topic the measure covers, and a ballot title's identity with the measure's text does not save it from being misleading if the language fails to give voters fair understanding.

State legislators

Watch the Article 19, § 22 / Article 5, § 1 interaction in any future ballot proposal that touches the initiative process. The Couch proposal explicitly tried to limit the legislature's amendment power over the new text. The AG flagged that this kind of self-shielding language has to be drafted with surgical precision because the consequences for the legislature's general amendment authority are large.

Voters

If you signed a petition or were asked to sign one, the AG's certification process is the front-end check on whether the ballot title you'll see actually matches what the measure does. Rejection at this stage does not mean the proposal can't move forward; the sponsor can redesign and resubmit, which is exactly what happened here (see Opinion 2025-021, the second rejection).

Common questions

Q: Can the AG just rewrite the ballot title to make it work?

Sometimes, but not when the problem is in the text of the measure itself. The AG can substitute a "more suitable" ballot title only if the ballot title alone is the issue. If the underlying measure has internal contradictions, ambiguities, or missing qualifiers, no rewritten ballot title can faithfully summarize a contradictory text.

Q: Why does it matter whether "any measure" includes "approved by a vote of the people"?

Because the broader reading would prohibit the General Assembly from amending or repealing ordinary statutes, which would be a much bigger constitutional change than restricting amendments to voter-approved measures. The ballot title kept the qualifier (suggesting the narrow reading); the text dropped it (allowing the broad reading). The two are inconsistent, so the ballot title cannot accurately summarize the text.

Q: What happens after a rejection like this?

The sponsor can redesign the measure and resubmit. Couch did exactly that, leading to AG Opinion 2025-021 about a month later. (Spoiler from that later opinion: the second submission fixed some issues but introduced new ones and was rejected again.)

Q: Is the AG's role limited to legal review, or does the AG consider whether the proposal is good policy?

Strictly legal review. The opening paragraph of the opinion makes this explicit: "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."

Q: Act 154 of 2025 was mentioned in a footnote. Does that change anything?

Act 154 of 2025 amended A.C.A. § 7-9-107(e) to allow the AG to reject a proposed measure if it conflicts with the U.S. Constitution or a federal statute. The act did not contain an emergency clause, so it had not yet taken effect when the AG issued this opinion. Once effective, it adds another rejection ground but does not change the existing ambiguity-based rejection authority.

Q: Why does the AG cite Garner's Modern English Usage and Black's Law Dictionary in a constitutional amendment review?

Because Arkansas Supreme Court ballot title cases hold that "technical and not readily understood" terms are disfavored, and drafting clarity is a justiciable issue. The Court has repeatedly criticized "and/or" usage in formal legal text, drawing on style authorities like Garner. Those usages are not just stylistic preferences; they bear on whether voters can understand the ballot.

Background and statutory framework

A.C.A. § 7-9-107 is the procedural backbone of pre-circulation ballot title review in Arkansas. Under § 7-9-107(a), sponsors of statewide initiated measures must "submit the original draft" of the measure to the Attorney General. Section 7-9-107(b) defines the "original draft" to include the full text of the proposed measure plus its ballot title and popular name.

Within ten business days, under § 7-9-107(d)(1) and (e), the AG has three options:

1. Approve and certify the ballot title and popular name as submitted.
2. Substitute and certify a "more suitable and correct" ballot title and popular name.
3. Reject both, state the reasons, and instruct the sponsor to redesign the measure and the ballot title.

Option 3 is available when the AG determines the ballot title or "the nature of the issue" is presented in a misleading manner or designed so a vote for or against would be a vote for the opposite of what the voter intends.

The popular-name standard, drawn from Pafford v. Hall, 217 Ark. 734 (1950), and Paschall v. Thurston, 2024 Ark. 155, requires that the popular name not be misleading or partisan and that it cover the substance of the measure (not just one of its topics). May v. Daniels, 359 Ark. 100 (2004), holds that the popular name and ballot title are read together for sufficiency.

The ballot-title standard, set out in Becker v. Riviere, 270 Ark. 219 (1980); Bailey v. McCuen, 318 Ark. 277 (1994); and Becker v. McCuen, 303 Ark. 482 (1990), requires impartial and accurate summary, fair understanding of the issues, no misleading tendency by amplification, omission, or fallacy, and brevity that fits within the time a voter has at the booth (currently ten minutes per § 7-5-309(b)(1)(B)).

The text-ambiguity bar is from Roberts v. Priest, 341 Ark. 813 (2000): a ballot title cannot be approved if the text of the proposed amendment itself contributes to confusion. The AG's authority to reject on text-ambiguity grounds rather than try to substitute a title is well-settled across the long string of opinions cited in footnote 26.

Citations

• A.C.A. § 7-9-107 (full review procedure)
• A.C.A. § 7-9-109 (current authority to reject popular name and ballot title)
• A.C.A. § 7-5-309(b)(1)(B) (ten-minute voting booth limit)
• Ark. Const. art. 5, § 1 (initiative and referendum)
• Ark. Const. art. 19, § 22 (legislative amendment power)
• Act 154 of 2025 (federal-conflict rejection ground; not yet effective)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Paschall v. Thurston, 2024 Ark. 155, 699 S.W.3d 352
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160
• Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Shepard v. McDonald, 189 Ark. 29, 70 S.W.2d 566 (1934)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Armstrong v. Thurston, 2022 Ark. 167, 652 S.W.3d 167
• Richardson v. Martin, 2014 Ark. 429, 444 S.W.3d 855
• McGill v. Thurston, 2024 Ark. 149, 699 S.W.3d 45
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987)
• Prior AG rejections cited: Ops. 2023-131, 2023-123, 2016-015, 2015-132, 2014-105, 2014-072, 2013-130, 2013-122, 2013-079, 2013-046, 2013-033, 2011-023, 2010-007, 2009-083, 2008-018, 2007-289, 2005-190, 2003-160, 2002-272, 2001-397, 2001-129, 2001-074, 2000-312, 2000-084, 1999-430

Source

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

Original opinion text

Opinion No. 2025-018
March 25, 2025
David A. Couch
5420 Kavanaugh Boulevard, Suite 7530
Little Rock, Arkansas 72707
Dear Mr. Couch:
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. 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 TO AMEND THE INITIATIVE AND REFERENDUM PROCESS Ballot Title Providing that the General Assembly may not amend or repeal a constitutional amendment approved by a vote of the people; Providing that prior to a petition on a state-wide measure being circulated, the proposed measure, the popular name and exact title to be used on the ballot shall be submitted to the Attorney General for approval and certification. Within ten days, the Attorney General shall either certify that the popular name and ballot title submitted are not misleading, and that the ballot title is an honest and impartial summary of the proposed measure that gives the voter a fair and reasonable understanding of the issues in the measure, or reject the popular name and/or title if it determines that either do not meet the requirements of this section. If the proposed popular name or ballot title are rejected, the Attorney General shall provide a written statement clearly explaining all the reasons for rejection and shall provide a substituted popular name and/or ballot title that makes only such changes to the proposed popular name and/or title as is necessary to meet the requirements of this section, and then certify the Mr. David A. Couch Opinion No. 2025-018 Page 2 approved substituted popular name and ballot title to be used on the ballot. The Attorney General upon certification of the approved popular name and ballot title shall deliver the certification to the Secretary of State on the day of certification. The Secretary of State shall within ten days cause to be published in a newspaper of statewide circulation and shall publish on its website a notice informing the public of such certification and the procedure identified in this section to govern any party who may contest such certification before the Supreme Court. The procedure shall be as follows: (A) Any legal action against such certification shall be filed with the Supreme Court within in forty-five (45) days of the Secretary of State’s publication; (B) No such action filed later than forty-five (45) days following publication shall be heard by the Supreme Court; (C) An action timely filed shall be advanced by the Supreme Court as a matter of public interest and shall be heard and decided expeditiously. Providing that the Ballot Title for any state- wide referendum petition shall be the title of the Act as assigned by the General Assembly and the name shall be the subtitle as assigned by the General Assembly; Providing that each part of any petition shall have attached thereto the declaration under penalty of perjury of the person circulating the same, that all signatures thereon were made in the presence of the declarant, and that to the best of the declarant’s knowledge and belief each signature is genuine, and that the person signing is a legal voter and no other affidavit, declaration or verification shall be required to establish the genuineness of such signatures; Providing that any such separate vote on an emergency clause must occur at least 24 hours after passage of the measure; Providing that this section may only be amended by a constitutional amendment initiated by the people pursuant to the terms of this amendment and not by an amendment referred by the General Assembly pursuant to Article 19, Section
2. Providing 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 and providing that If [sic] 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 of the amendment that can be given effect without the invalid provision or application, and to this end the provisions of this amendment are declared to be severable.
3. 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). Mr. David A. Couch Opinion No. 2025-018 Page 3
   • 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
4. Rules governing the popular name. The popular name is primarily a useful legislative device,7
   and its purpose is to identify the proposal for discussion.8 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.9 And it must be considered together with the ballot title in determining the ballot title’s sufficiency.10 Thus, a popular name can be misleading if it references only a subset of the topics covered in the measure’s text.11
5. Rules governing the ballot title. The ballot title must summarize the proposed amendment.
   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 3 A.C.A. § 7-9-107(d)(1). 4 Id. 5 A.C.A. § 7-9-107(e). 6 Id. Act 154 of 2025 amended A.C.A. § 7-9-107(e) to allow the Attorney General to reject a proposed measure if it conflicts with the United States Constitution or with a federal statute. However, the act does not contain an emergency clause, so it has not yet taken effect. 7 Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). 8 Paschall v. Thurston, 2024 Ark. 155, at 10, 699 S.W.3d 352, 359 (citing Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)). 9 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). 10 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004). 11 Paschall, 2024 Ark. 155, at 13–16, 699 S.W.3d at 361–363. Mr. David A. Couch Opinion No. 2025-018 Page 4 amendment’s text and give voters a fair understanding of the issues presented.12 The Court has also disapproved the use of terms that are “technical and not readily understood by voters.”13 Ballot titles that do not define such terms may be deemed insufficient.14 Additionally, sponsors cannot omit material from the ballot title that qualifies as an “essential fact which would give the voter serious ground for reflection.”15 Yet the ballot title must also be brief and concise lest voters exceed the statutory time allowed to mark a ballot.16 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.17 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.18 The ballot title must be honest and impartial,19 and it must convey an intelligible idea of the scope and significance of a proposed change in the law.20 The ballot title need not summarize existing law though.21 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.”22 Yet if a ballot title describes some of a measure’s changes with specificity while describing other changes more generally, this can render the ballot title misleading.23 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 12 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980). 13 Wilson v. Martin, 2016 Ark. 334, at 9, 500 S.W.3d 160, 167 (citing Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008)). 14 Id. 15 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). 16 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). 17 Plugge v. McCuen, 310 Ark. 654, 658, 841 S.W.2d 139, 141 (1992). 18 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) 19 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990). 20 Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 250, 884 S.W.2d 605, 610 (1994). 21 Armstrong v. Thurston, 2022 Ark. 167, at 10, 652 S.W.3d 167, 175. 22 Richardson v. Martin, 2014 Ark. 429, at 9, 444 S.W.3d 855, 861. 23 See Paschall, 2024 Ark. 155, at 16, 699 S.W.3d at 363. Mr. David A. Couch Opinion No. 2025-018 Page 5 name and the ballot title and the language in the proposed amendment.24 Yet a ballot title need not account for all possible legal effects and consequences of a proposed amendment.25
6. Application. Having reviewed the text of your proposed constitutional amendment, as well as
   your proposed popular name and ballot title, I have concluded that, due to (1) ambiguities in the text of your proposed measure and ballot title and (2) ambiguities created by your proposed summary of your text, I must reject your proposed popular name and ballot title and instruct you to redesign them. These ambiguities prevent me from either ensuring that your ballot title is not misleading or substituting a more appropriate ballot title.26 Limitation on the General Assembly’s Article 19, § 22 powers. This ambiguity pertains to how your proposal changes the law regarding the General Assembly’s authority to amend the Arkansas Constitution. The text of your measure would add the following language to the “Self-Executing” paragraph of Article 5, § 1: “This Amendment may only be amended by a constitutional amendment initiated by the people pursuant to the terms of this amendment and not by an amendment referred by the General Assembly pursuant to Article 19, Section 22.” Yet your ballot title provides that “this section may only be amended by a constitutional amendment initiated by the people pursuant to the terms of this amendment and not by an amendment referred by the General Assembly pursuant to Article 19, Section 22.”27 As a result of this disconnect, it is unclear whether you intend the scope of this limitation to extend only to the text that your proposed amendment adds to Article 5, § 1, or whether you intend to limit the means by which all of Article 5, § 1 may be amended.28 Limitation on the General Assembly’s power to amend the Constitution. The text of your proposed amendment would also add the following underlined language: No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any city council, except that any measure other than a 24 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). 25 McGill v. Thurston, 2024 Ark. 149, at 14–15, 699 S.W.3d 45, 55. 26 Although A.C.A. § 7-9-107 does not authorize the Attorney General to modify the text of the proposed measure itself, the Attorney General still reviews the text of the proposed measure because the ballot title and popular name cannot be certified when the “text of the proposed amendment itself” is ambiguous or misleading. Roberts, 341 Ark. at 825, 20 S.W.3d at 382. And in line with the caselaw, my predecessors have consistently rejected ballot titles “due to ambiguities in the text” of the proposed measure. E.g., Ark. Att’y Gen. Ops. 2016-015, 2015-132, 2014-105, 2014-072, 2013-079, 2013-046, 2013-033, 2011-023, 2010-007, 2009-083, 2008-018, 2005-190, 2002-272, 2001-397, 2001-129, 2001-074, 2000-084, 1999-430. 27 Emphasis added. 28 Ark. Att’y Gen. Op. 2007-289 (“I must note an obvious disconnect between the text of your proposed amendment and the proposed popular name and ballot tile you have submitted to summarize that text.… I thus cannot … certify a popular name and ballot title for your measure in light of this discrepancy.”); see also Ark. Att’y Gen. Ops. 2023-131, 2023-123, 2013-130, 2013-122, 2007-289, 2003-160, 2000-312. Mr. David A. Couch Opinion No. 2025-018 Page 6 constitutional amendment may be amended or repealed upon a yea and nay vote on roll call of two-thirds of all the members elected to each house of the General Assembly, or of the city council, as the case may be. The proposed addition of “any measure” does not include the qualifier “approved by a vote of the people,” so the proposed measure’s text could be read to prohibit the General Assembly from amending or repealing any measure—like an enacted bill—even if it was passed by the General Assembly, signed by the Governor, and never required to go to a vote of the people. Therefore, your text is capable of two, inconsistent readings, which generate a material ambiguity. Your proposed ballot title, however, does not faithfully summarize this breadth of meaning because your proposed ballot title picks one of the two ambiguities as if it were a faithful summary of the text. Your ballot title includes the qualifier “approved by a vote of the people.” Since this is an interpretive gloss, rather than a summary or resolution, of the ambiguity in your proposed text, I must reject your proposed summary and instruct you to redesign the measure due to the critical ambiguity in the text.29 Ballot title review process. Your proposed amendment adds language to Article 5, § 1 of the Arkansas Constitution that would significantly change the Attorney General’s role in reviewing ballot titles. Currently, as noted above, the Attorney General may (1) certify the popular name and ballot title as submitted, (2) substitute and certify a “more suitable” popular name and ballot title, or (3) reject the proposed popular name and ballot title and “instruct” the sponsor to “redesign the proposed measure and the ballot title and popular name.” However, your proposal purports to require every proposed popular name and ballot title to be certified. Under your proposal, this certification would occur in one of two ways: (1) the Attorney General could certify the popular name and ballot title as submitted if not misleading, or (2) the Attorney General could “reject the popular name and/or title,” provide a written statement explaining the reasons for the rejection, and “provide a substituted popular name and/or title that makes only such changes to the proposed popular name and/or title as is necessary to meet the requirements of this section, and then certify the approved popular name and title to be used on the ballot.” By removing the option for the Attorney General to reject the popular name and ballot title altogether, which is currently allowed under A.C.A. § 7-9-109, you have created a scenario whereby the Attorney General, in some circumstances, will be unable to act. As explained above and in previous ballot title opinions, I cannot modify the text of a proposed measure itself. Consequently, if the text of a measure contains contradictions, ambiguities, errors, or other problems that render it misleading, there is no ballot title I can substitute that will remedy the problem, as any substituted and certified ballot title would simply import the problem from the text of the measure to the ballot title. In such cases, it is up to the sponsor to correct the deficiencies in the text. But your proposed amendment would not allow the Attorney General to return the ballot title to the sponsor for the sponsor to correct these problems. By removing the Attorney General’s authority to reject a proposed measure without granting the authority to edit the measure’s text—while simultaneously requiring the Attorney General to certify that the popular name and ballot title are not misleading and that the title provides “an honest and impartial summary of the proposed measure that gives the voter a fair and 29 Ark. Att’y Gen. Ops. 2023-131, 2023-123, 2013-130, 2013-122, 2007-289, 2003-160, 2000-312. Mr. David A. Couch Opinion No. 2025-018 Page 7 reasonable understanding of the issues”—your amendment ensures that there will be times where the Attorney General is unable to act. Therefore, you have misleadingly presented the matter as if, upon submission to the Attorney General, some version of the ballot title will always be certified that presents the voter with a “fair and reasonable understanding of the issues in the measure.” Yet you have instead established a system in which, at times, that will be impossible—just like it is here with your current submission.

These ambiguities prevent me from ensuring that your ballot title is not misleading and from substituting and certifying a more suitable ballot title. Consequently, my statutory duty under A.C.A. § 7-9-107(e) is to reject your proposed popular name and ballot title, stating my “reasons therefor,” and to “instruct … [you] to redesign your proposed measure and the ballot title … in a manner that would not be misleading.”
6. Additional issues. While the foregoing defects provide sufficient grounds for me to reject your
submission, I have identified other issues in your proposal that could be misleading or made clearer and that you may wish to correct or clarify:
• General Assembly measures. As addressed above, your proposal restricts the General Assembly’s authority to amend “[t]his Amendment” in the paragraph labeled “Self- Executing.” But under the portion of Article 1, § 5 labeled, “Majority,” the text states, “This section shall not be construed to deprive any member of the General Assembly of the right to introduce any measure, but no measure shall be submitted to the people by the General Assembly, except a proposed constitutional amendment or amendments as provided for in this Constitution.” These separate provisions do not directly conflict with one another because the limitations placed on the General Assembly in the “Self- Executing” paragraph would be “provided for in this Constitution.” But because these provisions are several pages apart in the text of your measure, it is not readily apparent when reading the language under the “Majority” heading that this restriction on the legislature exists. The reader must skip to the end of the proposed amendment to find this limitation, which could be considered misleading or confusing. To avoid this, you may wish to move the language you have added to the “Self-Executing” paragraph to the second paragraph under the “Majority” heading.
• Separate vote. A provision in your ballot title says, “Providing that any such separate vote on an emergency clause must occur at least 24 hours after passage of the measure.” I assume this language is meant to refer to the sentence you have added to the “Emergency” paragraph in Article 5, § 1. That paragraph states that when it is necessary for a measure to become effective without delay, two-thirds of all members elected to each house or to city or town councils “shall vote upon separate roll call in favor of the measure going into immediate operation” in order for the emergency measure to “become effective without delay.” You have added a line to this paragraph requiring that any separate roll call regarding whether the measure should take immediate effect must occur at least 24 hours after the measure is passed. But this context is not apparent in your ballot title. Mr. David A. Couch Opinion No. 2025-018 Page 8 Consequently, a person reading the ballot title would not know what “such separate vote” means. This is not a reason to reject your ballot title, but if your proposal were at the stage where it could be certified, I would have to replace this provision in your ballot title with clearer language. Therefore, I am flagging this issue for you now in case you wish to substitute different language.
• Grammatical issues. I have also identified a few minor grammatical changes and clarifications that you may wish to make to the ballot title and to the proposed measure’s text to ensure clarity for the voter. o In the “Initiative Popular Name and Ballot Title” portion of your proposed measure and in your ballot title, you say, “Within ten days, the Attorney General shall either certify that the popular name and ballot title submitted are not misleading, and that the ballot title is an honest and impartial summary of the proposed measure that gives the voter a fair and reasonable understanding of the issues in the measure, or reject the popular name and/or title if it determines that either do not meet the requirements of this section.” Your use of the pronoun, “it,” renders this sentence unclear. Presumably, you mean for “it” to refer to the Attorney General’s Office, so you may have meant to write “he or she” to refer to the Attorney General. Additionally, the use of “and/or” and “either” creates some ambiguity as to the sentence’s meaning. The Arkansas Supreme Court has repeatedly noted that “and/or” is “at best … equivocal, obscure and meaningless,” and at worst “slovenly, improper and a linguistic abomination.”30 You may wish to reword this sentence in the measure and in your ballot title for clarity. o There is a clause in the “Initiative Popular Name and Ballot Title” portion of your proposed measure and in your ballot title that states, “Any legal action against such certification shall be filed with the Supreme Court within in forty-five (45) days of the Secretary of State’s publication.” Your use of “within in” appears to be an error, and you may wish to correct this in your proposed measure and ballot title. o Finally, in the middle of the last sentence of your ballot title, you have capitalized the word, “If.” You may wish to make the text lowercase. Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve. Sincerely, TIM GRIFFIN Attorney General 30 Kennedy v. Papp, 294 Ark. 88, 92, 741 S.W.2d 625, 628 (1987) (cleaned up).