What was the Arkansas Attorney General's substituted and certified ballot title for David Couch's 'An Amendment Concerning Constitutional Amendments, Initiated Acts, and Referendums,' and what does that ballot title actually say?
Subject
Substitution and certification of the popular name and ballot title for David Couch's proposed initiated constitutional amendment.
Plain-English summary
This is the success case in the Couch initiative-amendment series. After three rejections (Opinions 2025-018, 2025-021, 2025-026), the fourth submission cleared the AG's review.
What the sponsor fixed:
- The grammatical error in the prior draft (subdivision (A)'s "issues in the measure of the proposed measure")
- The absence of a procedure for challenging popular names
- Reading level: from 12.2 (in the third submission) to 9.3 (in this fourth submission)
The AG made minor changes to bring the ballot title down to eighth grade while preserving accurate description, then substituted and certified the popular name and ballot title.
The certified ballot title (substituted by the AG) summarizes the proposed amendment's effects:
- The General Assembly cannot amend or repeal a constitutional amendment voters have approved
- The AG's ballot title review must happen within 10 days, with three options: approve, rewrite, or reject
- AG decisions to rewrite or reject can be appealed immediately to the Arkansas Supreme Court, which decides quickly
- Once approved, the title goes to the Secretary of State, who within 5 days assigns a popular name (which cannot be misleading or partisan)
- The Secretary of State publishes notice of how to challenge name or title
- Any challenge must be filed within 45 days; later challenges are barred
- For statewide referendums, ballot title is the title of the Act assigned by the General Assembly; popular name is the subtitle
- Canvassers must declare (rather than swear by affidavit) that signatures were made by legal voters in their presence; the change replaces affidavits with declarations under penalty of perjury
- A bill's emergency-clause vote must occur at least 24 hours after the bill itself passes
- Only the people, not the General Assembly, can propose changes to article 5, § 1 (the General Assembly's article 19, § 22 power to refer amendments to that section is taken away)
- A law affecting the people's initiative or referendum rights only takes effect if voters approve it at the next general election
- Laws regulating these rights must serve a compelling state interest, narrowly tailored
- The amendment repeals all inconsistent state laws
- Severability if any provision is held invalid
The AG was explicit that certification was "not related to my view of the proposed measure's merits." The certification process is procedural compliance, not policy approval.
What this means for you
Ballot initiative sponsors
This is the AG's substituted-and-certified version of Couch's proposal. If you're sponsoring petitions on this measure, you must use the AG-certified popular name and ballot title text, not your own original submission. The substitution authority under A.C.A. § 7-9-107(c) means the AG's certified version is the legal version going forward.
The Couch series shows what successful resubmission looks like: address every substantive issue from prior rejections, hit the reading-level target, and the AG can then substitute fine-tuning to get over the line. The sponsor's job is to deliver a near-eighth-grade title that has all the substantive elements; the AG's job is to either certify, fine-tune to certify, or reject.
Election lawyers
The certified title in this opinion is now the operational document for any litigation challenging the popular name or ballot title (legal challenges have a 45-day window from publication). If you're litigating against this initiative, your target is the AG-certified version, not Couch's original submission.
Voters who will see this title on the ballot
The certified ballot title runs about 27 sentences. Reading time is meaningful, especially given Arkansas's 10-minute voting limit per A.C.A. § 7-5-309(b)(1)(B). Reading at an eighth-grade level (which the certified version does), the average voter can get through it in 1-2 minutes. Read the underlying constitutional text if anything in the title is unclear; the title is a summary, not a verbatim reproduction.
Civic organizations
The certified title represents the proposal as the AG understood it after several iterations. Public discussion of the proposal should be anchored in the certified text, not earlier draft language that's no longer operative.
Common questions
Q: Does AG certification mean the AG endorses the proposal?
No. The AG explicitly said certification is "unrelated to my view of the proposed measure's merits." Certification is a procedural finding that the title accurately and impartially summarizes the proposal at an appropriate reading level. The AG isn't endorsing the policy.
Q: Can opponents still challenge the certified title?
Yes. Under A.C.A. § 7-9-107 and the proposal's own terms (now substantively reflected in the certified text), any challenge to the popular name or ballot title must be filed in the Arkansas Supreme Court within 45 days of the Secretary of State's publication. After that, no further challenges.
Q: What happens next in the petition process?
After certification, the sponsor circulates petitions with the certified ballot title and popular name. Signature requirements: 10% of the total vote for governor in the last preceding general election (per article 5, § 1). Petitions must be filed at least four months before the general election. Signatures must come from at least 15 counties (with at least 50% of the per-county threshold from each).
Q: How does the substitution process work?
Under A.C.A. § 7-9-107(c) and (d), if the sponsor's proposed title is "more suitable and correct" with adjustments, the AG can substitute and certify rather than reject. The AG used this authority here: minor changes were enough to get from grade 9.3 to grade 8 while preserving substantive accuracy.
Q: Why does this matter for Arkansas's initiative process generally?
The Couch amendment, if approved by voters, would significantly restructure Arkansas's ballot-initiative process. Notable changes: replacing canvasser affidavits with declarations under penalty of perjury, the 24-hour emergency-clause vote, the requirement that laws affecting initiative rights be approved by voters before taking effect, the compelling-state-interest narrow-tailoring test for laws regulating these rights, and removing the General Assembly's article 19, § 22 power to refer changes to article 5, § 1.
Background and statutory framework
A.C.A. § 7-9-107 governs AG review. Act 602 of 2025 added the eighth-grade Flesch-Kincaid reading-level requirement. Act 602 had an emergency clause and became effective April 14, 2025.
The AG's options under § 7-9-107(d):
1. Certify in the form submitted
2. Substitute and certify a more suitable title (this is what happened here)
3. Reject and instruct redesign
Substitution requires that the AG's edits are fine-tuning rather than wholesale rewrites. Wholesale rewrites are sponsor's responsibility under AGOps. 2024-031, 2023-098, 2018-123, 2018-112, 2018-110, 2018-108, 2018-106.
The Couch series at the AG: 2025-018 (first rejection), 2025-021 (second rejection on misleading-AG-role and Article-reference grounds), 2025-026 (third rejection on Act 602 reading-level grounds), 2025-033 (fourth submission, substituted and certified).
Citations
- A.C.A. § 7-9-107 (AG review and certification)
- A.C.A. § 7-9-107(c) (substitution authority)
- A.C.A. § 7-9-107(d)(1) (three response options)
- Act 602 of 2025 (eighth-grade reading-level requirement)
- AGOp. 2025-018 (first Couch rejection)
- AGOp. 2025-021 (second Couch rejection)
- AGOp. 2025-026 (third Couch rejection on reading-level)
- AGOp. 2025-032 (effective date of non-emergency 2025 acts)
Source
Original opinion text
Opinion No. 2025-033
May 21, 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, 2025-021, and 2025-026, 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.
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.
- 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 CONCERNING CONSTITUTIONAL AMENDMENTS, INITIATED ACTS, AND REFERENDUM
Ballot Title
This is a proposed change to the Arkansas Constitution. The General Assembly (state lawmakers) cannot change the Constitution by themselves. Before a statewide petition can be circulated, it must be sent to the Attorney General. The Attorney General will either approve the title, rewrite it, or reject it. If it is rewritten or rejected, that decision can be appealed to the Arkansas Supreme Court. The Secretary of State will give the petition a name. The Secretary of State must also publish a notice that explains how people can challenge the name or title. Any challenge must be made within 45 days. No other challenges will be allowed after that time. For referendums, state lawmakers will decide the name and title. Canvassers must swear that to the best of their knowledge each signature was made by a legal voter who signed in their presence. If a bill has an emergency clause, the vote on that clause must happen at least 24 hours after the bill passes. Only the people, not state lawmakers, can propose a change to Article 5, Section 1 of the Constitution. Any new law that effects the initiative or referendum process must be approved by voters at the next general election. Any state law that conflicts with this amendment will not be valid. If part of the amendment is found to be invalid, the rest will still be valid if able to stand on its own.
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Rules governing my review. In Opinion No. 2025-018, issued in response to your previous request for review and certification, I described the rules and legal standards that govern my review of popular names and ballot titles. And in Opinion No. 2025-026, I explained a new requirement imposed by Act 602 of 2025, which prohibits the Attorney General from certifying "a proposed ballot title with a reading level above eighth grade." I rely on the same rules and legal standards outlined in those opinions and incorporate them here by reference.
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Application. Having reviewed the text of your proposed constitutional amendment, as well as your proposed popular name and ballot title, my statutory duty at this stage is to substitute and certify the popular name and ballot title indicated below. In Opinion No. 2025-026, I explained that I could not approve your ballot title because it ranked at grade level 12.2 on the Flesch-Kincaid Grade Level formula. I also identified two other minor issues: a grammatical error in the proposal's text and the proposal's failure to mention any standards upon which a popular name could be challenged. You have now corrected both of these issues, and you have rewritten your ballot title so that it ranks at an 8.5 on the Flesch-Kincaid Grade Level formula. With regard to your proposed ballot title, I have made several minor changes to ensure that the ballot title clearly and accurately sets forth the purpose of your proposed initiated amendment to the Arkansas Constitution, while remaining at an eighth-grade reading level. With these changes incorporated, the following popular name and ballot title are substituted and certified:
Popular Name
An Amendment Concerning Constitutional Amendments, Initiated Acts, and Referendums
Ballot Title
This is a proposed change to the Arkansas Constitution. The General Assembly cannot change or repeal a constitutional amendment that voters have approved. Before a statewide petition can be circulated, the proposed law and ballot title must be sent to the Attorney General. Within 10 days, the Attorney General approves the ballot title, rewrites it, or rejects it. The Attorney General approves the ballot title if it clearly explains the issues. If it does not, the Attorney General rewrites it. If no substituted language can explain the issues clearly, the Attorney General rejects the title. If the Attorney General rewrites or rejects the title, that decision can be appealed to the Arkansas Supreme Court immediately. The Court shall hear and decide the case quickly. Once a ballot title is approved, the Attorney General sends it to the Secretary of State. Within 5 days, the Secretary of State gives the petition a popular name. The name cannot be misleading or partisan. The Secretary of State must also publish a notice that explains how the name or title can be challenged. Any challenge must be made within 45 days. After that, no other challenges are allowed. For statewide referendums, the ballot title is the title of the Act given by the General Assembly. The popular name is the subtitle. Canvassers must declare that to the best of their knowledge each signature was made by a legal voter who signed in front of them. Previously, canvassers signed an affidavit. This changes the affidavit to a declaration under penalty of perjury. If a bill has an emergency clause, the vote on that clause must be held at least 24 hours after the bill passes. Only the people can propose a change to Article 5, Section 1 of the Constitution. The General Assembly cannot refer an amendment to that section to the people for a vote. If a law affects the people's right to the initiative or referendum process, the law only takes effect if voters approve it at the next general election. Laws that regulate these rights must serve a compelling state interest. They must be narrowly tailored to serve that interest. This measure repeals all inconsistent state laws. If part of the amendment is held invalid, the rest will still be valid if it can stand on its own.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General