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

Third review and rejection of the popular name and ballot title for David Couch's proposed initiated constitutional amendment titled "An Amendment Concerning Constitutional Amendments, Initiated Acts, and Referendum."

Plain-English summary

This was Couch's third submission of the same proposed amendment. The AG had rejected the first two (Opinions 2025-018 and 2025-021). The third submission resolved the two substantive issues that had killed the second version:

1. Misleading representation of the AG's role. The earlier draft described the AG's ballot-title review process inaccurately. Couch fixed it.

2. Article reference. The earlier draft used "Article" rather than "Article 5, § 1," which had the effect of broadly restricting the General Assembly's article 19, § 22 power without naming the change in the ballot title. Couch fixed it.

Between the second rejection and the third submission, however, the General Assembly passed Act 602 of 2025, which became effective on April 14, 2025 (when the Governor approved it; Act 602 had an emergency clause). Act 602 prohibits the AG from certifying any ballot title with a Flesch-Kincaid Grade Level above 8.0. Couch's third-submission ballot title scored 12.2.

That failure is dispositive. The AG explained that any substituted title would be a "wholesale rewrite," which is the sponsor's responsibility, not the AG's. So the AG rejected.

The AG flagged two additional issues for Couch to address on resubmission:

1. Grammatical issue. Under "Initiative Popular Name and Ballot Title," subdivision (A) read: "Certify that the ballot title provides a fair and reasonable understanding of the issues in the measure of the proposed measure." The phrase "issues in the measure of the proposed measure" appears to have unintentionally retained extra words.

2. Challenges to popular name. Couch's proposal newly required the Secretary of State to assign a popular name. The AG didn't fully describe why this was an issue here, but the discussion suggests the absence of a procedure for challenging popular names raised a concern.

(This opinion's narrative continues in AGOp. 2025-033, where the fourth submission was substituted and certified.)

What this means for you

Ballot initiative sponsors

Two operational lessons. First, the rejection cycle is iterative. Each rejection identifies issues; you fix them; you resubmit. But new statutory requirements can drop into the cycle (as Act 602 of 2025 did here). Watch the legislative session for any change to A.C.A. § 7-9-107 between your rejections and your resubmissions.

Second, the AG won't do "wholesale rewrites" of your ballot title. Substitution is for fine-tuning, not wholesale revision. If your title has structural reading-level problems, you fix those, then resubmit.

Election lawyers

The Couch initiative-amendment opinions (2025-018, 2025-021, 2025-026, 2025-033) together are a worked example of the iterative rejection-and-resubmission cycle. The series shows the AG's evolving treatment of (1) substantive ambiguity and misleading framing in the underlying measure (handled in 2025-018 and 2025-021), and (2) reading-level compliance under Act 602 (handled in 2025-026 and 2025-033). For client-counseling purposes, this whole arc is worth pulling.

Civic organizations

Act 602 of 2025 is a real and binding constraint on initiative drafting. As of mid-April 2025, every ballot title submitted has to score at or below grade 8.0 on Flesch-Kincaid. This affects sponsor strategy and timing. A title that took six weeks to draft at grade 12 has to come down to grade 8 before AG certification, and that's not a trivial transformation.

Common questions

Q: How is Act 602 of 2025 different from any other reading-level requirement?

There wasn't a quantitative reading-level requirement before Act 602. The prior law required ballot titles to be impartial and free from technical jargon, but that was qualitative. Act 602 set a hard quantitative cap.

Q: Why was Act 602 effective April 14, 2025 and not August 5, 2025?

Because Act 602 had an emergency clause. Acts with emergency clauses become effective when the Governor approves them (or as the act specifies). Acts without emergency clauses are subject to the 90-day referendum-petition window and the August 5 default for the 2025 session. AGOp. 2025-032 walks through the calculation for non-emergency acts.

Q: Couldn't the AG have substituted a grade-8 title?

The AG declined. Substituting a wholesale rewrite of a 12.2-grade title down to grade 8 is, in the AG's view, sponsor's work, not AG's. The AG can fine-tune; the AG won't do an independent draft.

Q: What was wrong with the earlier "Article" vs "Article 5, § 1" issue?

The proposal expanded restrictions on the General Assembly. By using just "Article" (without specifying which article), the underlying text could be read as restricting article 19, § 22's separate procedure that lets the General Assembly refer amendments to voters. The ballot title didn't tell voters that the proposal was effectively narrowing legislative authority over a different article. The fix was to specify "Article 5, § 1" so the scope of the change was clear and limited.

Background and statutory framework

A.C.A. § 7-9-107 governs the AG's review of initiated measures. The AG has 10 business days to certify, substitute and certify, or reject and instruct redesign.

Act 602 of 2025 added the eighth-grade Flesch-Kincaid reading-level requirement to A.C.A. § 7-9-107. The act had an emergency clause and became effective April 14, 2025.

The AG's authority to substitute a "more suitable" ballot title under § 7-9-107(c) is generally limited to fine-tuning. AGOps. 2024-031, 2023-098, 2018-123, 2018-112, 2018-110, 2018-108, and 2018-106 all decline substitution where the AG would have to craft an independent product. AGOp. 2012-033 (rejection where ballot title evidences little effort to comply) and AGOp. 2016-051 (rejection where AG would craft an independent product) are the leading internal authorities.

The Couch series of opinions traces the history: 2025-018 (first submission, rejected), 2025-021 (second submission, rejected on AG-role-and-Article-reference issues), 2025-026 (third submission, rejected on Act 602 reading-level grounds), 2025-033 (fourth submission, substituted and certified). The fourth submission scored 9.3 originally, and the AG worked the substitute down to grade 8.

Citations

• A.C.A. § 7-9-107 (AG review process)
• Act 602 of 2025, § 2 (eighth-grade reading-level requirement; emergency clause; effective April 14, 2025)
• AGOp. 2025-018 (first Couch rejection)
• AGOp. 2025-021 (second Couch rejection)
• AGOp. 2025-033 (fourth Couch submission, substituted and certified)
• AGOp. 2025-032 (effective date of acts without emergency clause)
• AGOp. 2024-031 et seq. (substitution declines)
• AGOp. 2012-033 (rejection where little effort)
• AGOp. 2016-051 (rejection where AG would craft independent product)

Source

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

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." Act 602 has an emergency clause and became effective on April 14, 2025, when the Governor approved it. 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 or to "reject[] [the] proposed ballot title …, state the reasons for rejection[,] and instruct the petitioners to redesign the proposed ballot title or proposed measure in a manner that does not violate this subsection."

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. Thus, if "[t]he proposed ballot title evidences little or no effort … to comply with the rules governing the initiative process" or would require the Attorney General to craft "an independent product" before the ballot title complied with the law, 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.

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." It 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.

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

Sincerely,
TIM GRIFFIN
Attorney General