Why did the Arkansas Attorney General reject the third version of David Couch's proposed amendment ('An Amendment Concerning Constitutional Amendments, Initiated Acts and Referendum'), and what did the sponsor need to fix?

Subject

Attorney General Tim Griffin rejected the third submitted ballot title for David Couch's proposed amendment concerning constitutional amendments, initiated acts, and referendums. Its Flesch-Kincaid grade level was 12.2, above the eighth-grade limit in Act 602 of 2025.

Plain-English summary

Couch asked the Attorney General to certify the popular name and ballot title for a proposed constitutional amendment. The AG had rejected two earlier versions in Opinions 2025-018 and 2025-021. This submission resolved the two problems he had identified in 2025-021: a misleading description of the AG's ballot-title review role and the use of “Article” instead of “Article 5, § 1” when describing restrictions on the General Assembly's Article 19, § 22 powers.

Act 602 of 2025 took effect on April 14, 2025. It prohibits the AG from certifying a proposed ballot title with a Flesch-Kincaid reading level above eighth grade. Couch's title scored 12.2. The AG said rewriting it to comply would be a wholesale rewrite that the sponsor, rather than the AG, must undertake. He rejected the popular name and ballot title and instructed Couch to redesign the title.

The AG also identified two issues for a possible resubmission. The proposal used the phrase “issues in the measure of the proposed measure,” which appeared to contain extra words. It would let parties contest a popular name assigned by the Secretary of State, but supplied no standards for the name or basis for a challenge. The AG said the ballot title misleadingly suggested that such a basis existed.

What this means for you

Sponsors preparing a proposed ballot title

Check the title's Flesch-Kincaid grade level before asking for certification. In this opinion, a 12.2 score exceeded the statutory eighth-grade ceiling. The AG declined to substitute a compliant title because doing so would require a wholesale rewrite. The sponsor was instructed to redesign it.

Counsel revising a rejected proposal

Review the AG's stated reasons against both the proposed measure and its ballot title. Couch resolved two issues from the prior opinion, but the newly effective reading-level requirement prevented certification. The AG also flagged wording in the proposed measure and a missing basis for challenging a popular name that could matter on resubmission.

Common questions

Did resolving the issues from Opinion 2025-021 secure certification?

No. The AG said both earlier issues had been resolved, but Act 602 of 2025 barred him from certifying this title because its reading level was 12.2.

Could the AG substitute a shorter title?

The opinion says the AG may substitute a more suitable title in appropriate circumstances. For this submission, he said reaching the statutory reading level would require a wholesale rewrite, which was Couch's responsibility.

Did the AG reject the proposed amendment on its merits?

No. The AG expressly said that certification or rejection of a popular name and ballot title is unrelated to his view of the measure's merits. His stated ground for rejection was the title's reading level.

What else did the AG identify for resubmission?

He identified extra words in a sentence describing the ballot title and a popular-name challenge procedure that offered no standards or grounds for a challenge.

Background and statutory framework

A.C.A. § 7-9-107 governs this review. Act 602 of 2025 added a rule against certifying a ballot title above eighth-grade reading level under the Flesch-Kincaid Grade Level Formula as it existed on January 1, 2025. The AG said the act took effect on April 14, 2025, when the Governor approved it, because it had an emergency clause.

The opinion incorporates the review standards explained in Opinion 2025-018. It says the AG may substitute a “more suitable” title or reject a noncompliant title with reasons and instructions to redesign it. It cites earlier opinions declining substitution when a proposed title shows little effort to comply or would require the AG to create an independent product.

Currency note

This opinion was issued in 2025. Check the current text of A.C.A. § 7-9-107 before relying on its requirements for a new submission.

Citations

• A.C.A. § 7-9-107 (ballot-title review)
• Act 602 of 2025, §§ 2 and 4 (reading-level rule and emergency clause)
• Ark. Att'y Gen. Ops. 2025-018 and 2025-021 (prior submissions)
• Ark. Att'y Gen. Ops. 2024-031, 2023-098, 2018-123, 2018-112, 2018-110, 2018-108, 2018-106, 2012-033, and 2016-051 (cited substitution decisions)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/
• The official PDF has three text pages and six scanned pages containing the submitted ballot title and proposed amendment. The text below is a PDF extraction of the letter followed by OCR of the scanned attachment; OCR can misread characters and does not preserve strikeout and underline formatting.

Original opinion text

Opinion No. 2025-026
May 5, 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. In Opinion Nos. 2025-018 and 2025-021, I rejected prior versions of your proposed initiated amendment to the Arkansas Constitution. You have now revised the language of your proposal and submitted it for certification. It is attached to this opinion.

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. Rules governing my review. In Opinion No. 2025-018, issued in response to your previous
   request 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.

Since that opinion, however, the General Assembly passed Act 602 of 2025, which states, “The Attorney General shall not certify a proposed ballot title with a reading level above eighth grade as determined by the Flesch-Kincaid Grade Level Formula as it existed on January 1, 2025.” 1 Act 602 has an emergency clause and became effective on April 14, 2025, when the Governor approved it. 2 Like my review of proposed ballot titles that are misleading, if a proposed ballot title fails to comply with Act 602, I am authorized to substitute a “more suitable” ballot title 3 or to “reject[] [the] proposed ballot title …, state the reasons for rejection[,] and instruct the petitioners

1
Act 602 of 2025, § 2 (amending A.C.A. § 7-9-107).
2
Id. § 4.
3
A.C.A. § 7-9-107(c).
Mr. David A. Couch
Opinion No. 2025-026
Page 2

to redesign the proposed ballot title or proposed measure in a manner that does not violate this subsection.” 4

Ultimately, it is the sponsor’s responsibility to craft a ballot title that that complies with the statutory requirements; the law neither contemplates nor requires that I compose an entirely new ballot title. 5 Thus, if “[t]he proposed ballot title evidences little or no effort … to comply with the rules governing the initiative process” 6 or would require the Attorney General to craft “an independent product” before the ballot title complied with the law, 7 this Office has regularly declined to substitute and rejected the proposal.

2. Application. In Opinion No. 2025-021, I listed two issues that prevented me from certifying
   your ballot title as submitted or from substituting and certifying an alternative: (1) the proposed measure’s misleading representation of the Attorney General’s role in the ballot title review process and (2) the measure’s use of “Article,” rather than “Article 5, § 1,” which increased the restrictions on the General Assembly’s Article 19, § 22 powers but did not convey the scope of these restrictions in the ballot title or popular name. You have now resolved both of these issues. But due to Act 602, additional changes to the wording of your ballot title are necessary.

As explained above, Act 602 prohibits me from certifying ballot titles that are above an eighth- grade reading level under the Flesch-Kincade Grade Level formula. Yet the ballot title you have submitted ranks at grade level 12.2. Thus, your ballot title requires significant revisions before it complies with the Act. Any ballot title I could substitute would amount to a wholesale rewrite, but it is the sponsor’s duty to craft a ballot title that complies with Act 602. As a result, my statutory duty is to reject your popular name and ballot title because it does not comply with the requirements of Act 602 and instruct you to redesign the proposed ballot title in a manner that does not violate the requirements of the Act. 8

3. Additional Issues. While the foregoing defect provides sufficient grounds for me to reject your
   submission, I have identified other issues in your proposal that you may wish to address if you resubmit:

   • Grammatical Issue. In your proposed text, under the heading “Initiative Popular Name
   and Ballot Title,” subdivision (A) provides: “Certify that the ballot title provides a fair and
   reasonable understanding of the issues in the measure of the proposed measure.” 9 It

4
Act 602 of 2025, § 2.
5
See, e.g., Ark. Att’y Gen. Ops. 2024-031, 2023-098, 2018-123, 2018-112, 2018-110, 2018-108, 2018-106.
6
Ark. Att’y Gen. Op. 2012-033.
7
Ark. Att’y Gen. Op. 2016-051.
8
Act 602 of 2025, § 2.
9
(emphasis added).
Mr. David A. Couch
Opinion No. 2025-026
Page 3

appears that several words were unintentionally left in here. It is unclear what an “issue[] in the measure of the proposed measure” would be.

• Challenges to the Popular Name. Under the same heading, your proposal deviates from your previous submissions by requiring the Secretary of State to assign a popular name after the Attorney General certifies a ballot title. After the Secretary of State assigns a popular name, certain parties “may contest the popular name.” But your proposed measure does not provide any standards for the popular name or basis upon which it can be challenged. Thus, the ballot title misleadingly presents the matter as if there is some basis upon which the popular name could be challenged, even though your proposed measure includes no such basis.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

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AN AMENDMENT CONCERNING CONSTITUTIONAL AMENDMENTS, INITIATED ACTS AND REFERENDUM

Ballot Title:

The General Assembly may not amend or repeal a constitutional amendment. Before a state-wide petition is circulated, the proposed measure and ballot title shall be submitted to the Attorney General. The Attorney General shall either certify, substitute or reject the ballot title. Any substitution or rejection can be immediately reviewed by the Supreme Court. The Attorney General shall deliver the certified ballot title to the Secretary of State. The Secretary of State shall assign a popular name. The Secretary of State shall publish a notice informing the public of the procedure to challenge the certification. Any challenge shall be filed with the Supreme Court within forty-five days of the publication. No action filed later than forty-five days shall be heard. The Ballot Title for any state-wide referendum shall be the title of the Act and the name shall be the subtitle. On each petition part the canvasser shall declare that all signatures were made by a legal voter in their presence. Any vote on an emergency clause must occur at least twenty-four hours after passage of the measure. Article 5, Section 1, may only be amended by a constitutional amendment initiated by the people. Any law passed effecting the people’s exercise of their right to the initiative or referendum is effective only if approved at the next general election. Any legislation enacted to restrict, hamper, impair or otherwise regulate the rights reserved to the people must serve a compelling state interest and be narrowly tailored to serve that interest. All provisions of the Constitution, statutes, and common law of this State inconsistent or in conflict with any provision of this amendment are declared null and void. If any provision or section of this amendment is held invalid, such invalidity shall not affect any other provision of the amendment that can be given effect without the invalid provision.

AN AMENDMENT CONCERNING CONSTITUTIONAL
AMENDMENTS, INITIATED ACTS AND REFERENDUM

Stricken language would be deleted from and underlined language would be added to present law.

Article 5, Section 1

§ 1. Initiative and Referendum

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option to approve or reject at the polls any entire act or any item of an appropriation bill.

Initiative. The first power reserved by the people is the initiative. Eight per cent of the legal voters may propose any law and ten per cent may propose a constitutional amendment by initiative petition and every such petition shall include the full text of the measure so proposed. Initiative petitions for state-wide measures shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon; provided, that at least thirty days before the aforementioned filing, the proposed measure shall have been published once, at the expense of the petitioners, in some paper of general circulation.

Referendum. The second power reserved by the people is the referendum, and any number not less than six per cent of the legal voters may, by petition, order the referendum against any general Act, or any item of an appropriation bill, or measure passed by the General Assembly, but the filing of a referendum petition against one or more items, sections or parts of any such act or measure shall not delay the remainder from becoming operative. Such petition shall be filed with the Secretary of State not later than ninety days after the final adjournment of the session at which such Act was passed, except when a recess or adjournment shall be taken temporarily for a longer period than ninety days, in which case such petition shall be filed not later than ninety days after such recess or temporary adjournment. Any measure referred to the people by referendum petition shall remain in abeyance until such vote is taken. The total number of votes cast for the office of Governor in the last preceding general election shall be the basis upon which the number of signatures of legal voters upon state-wide initiative and referendum petitions shall be computed.

Upon all initiative or referendum petitions provided for in any of the sections of this article, it shall be necessary to file from at least fifteen of the counties of the State, petitions bearing the signature of not less than one-half of the designated percentage of the electors of such county.

Emergency. If it shall be necessary for the preservation of the public peace, health and safety that a measure shall become effective without delay, such necessity shall be stated in one section, and if upon a yea and nay vote two-thirds of all the members elected to each house, or two-thirds of all the members elected to city or town councils, shall vote upon separate roll call in favor of

the measure going into immediate operation, such emergency measure shall become effective without delay. Any such separate vote must occur at least twenty-four (24) hours after the passage of the measure. It shall be necessary, however, to state the fact which constitutes such emergency. Provided, however, that an emergency shall not be declared on any franchise or special privilege or act creating any vested right or interest or alienating any property of the State. If a referendum is filed against any emergency measure such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the electors voting thereon, it shall be thereby repealed. The provision of this sub-section shall apply to city or town councils.

Local for Municipalities and Counties. The initiative and referendum powers of the people are hereby further reserved to the legal voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.

Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. General laws shall be enacted providing for the exercise of the initiative and referendum as to counties. Fifteen per cent (15%) of the legal voters of any municipality or county may order the referendum, or invoke the initiative upon any local measure. In municipalities the number of signatures required upon any petition shall be computed upon the total vote cast for the office of mayor at the last preceding general election; in counties upon the office of circuit clerk. In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty (60) days nor more than ninety (90) days before the election at which it is to be voted upon; for a referendum petition at not less than thirty (30) days nor more than ninety (90) days after the passage of such measure by a municipal council; nor less than ninety (90) days when filed against a local or special measure passed by the General Assembly.

Every extension, enlargement, grant, or conveyance of a franchise or any rights, property, easement, lease, or occupation of or in any road, street, alley or any part thereof in real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution, or otherwise, shall be subject to referendum and shall not be subject to emergency legislation.

General Provisions

Definition. The word "measure" as used herein includes any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character.

No Veto. The veto power of the Governor or mayor shall not extend to measures initiated by or referred to the people.

Amendment and Repeal. 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 such measure other than a constitutional amendment approved by a vote of the people 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.

Election. All measures initiated by the people whether for the State, county, city or town, shall be submitted only at the regular elections, either State, congressional or municipal, but referendum

provide a fair and reasonable understanding of the measure, the Attorney General shall reject the

ballot title and provide petitioners with a written statement clearly explaining all the reasons for such determination and rejection.

Any substitution or rejection made by the Attorney General under this section is subject to immediate review by the Supreme Court, which shall have original and exclusive jurisdiction and shall expeditiously hear and decide any such action.

The Attorney General upon certification of the ballot title shall deliver the certification to the Secretary of State on the day of certification. Within five days of receipt of the certification the Secretary of State shall prepare and assign a popular name to the measure. The Secretary of State shall within ten days cause to be published in a newspaper of state-wide circulation and shall publish on its website a notice informing the public of the popular name and the certification of the ballot title and the procedure identified in this section to govern any party who may contest the popular name or certification before the Supreme Court. The procedure shall be as follows:

(A) Any legal action against the popular name or certification or both shall be filed with the

Supreme Court within 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.

Referendum Name and Ballot Title. The Ballot Title for any state-wide referendum petition shall be the title of the Act as assigned by the General Assembly and the popular name shall be the subtitle as assigned by the General Assembly.

Limitation. No limitation shall be placed upon the number of constitutional amendments, laws, or other measures which may be proposed and submitted to the people by either initiative or referendum petition as provided in this section. No petition shall be held invalid if it shall contain a greater number of signatures than required herein.

Verification. Only legal votes shall be counted upon petitions. Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto the affidavit declaration under penalty of perjury of the person circulating the same, that all signatures thereon were made in the presence of the affiant- declarant, and that to the best of the affiant's-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.

Sufficiency. The sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes. The sufficiency of all local petitions shall be decided in the first instance by the county clerk or the city clerk as the case may be, subject to review by the chancery court.

Court Decisions. If the sufficiency of any petition is challenged such cause shall be a preference cause and shall be tried at once, but the failure of the courts to decide prior to the election as to the sufficiency of any such petition, shall not prevent the question from being placed upon the

ballot at the election named in such petition, nor militate against the validity of such measure, if it shall have been approved by a vote of the people.

Amendment of Petition. (a)(1) If the Secretary of State, county clerk or city clerk, as the case may be, shall decide any petition to be insufficient, he or she shall without delay notify the sponsors of such petition, and permit at least thirty (30) days from the date of such notification, in the instance of a state-wide petition, or ten (10) days in the instance of a municipal or county petition, for correction or amendment. (2) For a state-wide petition, correction or amendment of an insufficient petition shall be permitted only if the petition contains valid signatures of legal voters equal to: (A) At least seventy-five percent (75%) of the number of state-wide signatures of legal voters required; and (B) At least seventy-five percent (75%) of the required number of signatures of legal voters from each of at least fifteen (15) counties of the state. (b) In the event of legal proceedings to prevent giving legal effect to any petition upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition.

Unwarranted Restrictions Prohibited. No law shall be passed to prohibit any person or persons from giving or receiving compensation for circulating petitions, nor to prohibit the circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions; but laws shall be enacted prohibiting and penalizing perjury, forgery, and all other felonies or other fraudulent practices, in the securing of signatures or filing of petitions. Any law passed effecting the people's exercise of their right to the initiative or referendum is effective only if approved by the electors at the general election immediately following passage.

Publication. All measures submitted to a vote of the people by petition under the provisions of this section shall be published as is now, or hereafter may be provided by law.

Enacting Clause. The style of all bills initiated and submitted under the provisions of this section shall be, "Be It Enacted by the People of the State of Arkansas, (municipality or county, as the case may be)." In submitting measures to the people, the Secretary of State and all other officials shall be guided by the general election laws or municipal laws as the case may be until additional legislation is provided therefor.

Self-Executing. This section shall be self-executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall be enacted to restrict, hamper, ef impair or otherwise regulate the exercise of the rights herein reserved to the

people, unless such legislation serves a compelling state interest and is narrowly tailored to serve that interest.

Inconsistent provisions inapplicable. 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.

Severability. 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 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.