What does the Arkansas Attorney General have to consider when deciding whether to certify a ballot title for an initiated constitutional amendment, and why was the original 'Arkansas Ballot Measure Rights Amendment' ballot title rejected on its first submission?

Subject

The first review and rejection of the popular name and ballot title submitted by Protect AR Rights for a proposed initiated constitutional amendment titled "The Arkansas Ballot Measure Rights Amendment."

Plain-English summary

This is the AG's first decision in the saga of the "Arkansas Ballot Measure Rights Amendment." Jennifer Standerfer, on behalf of Protect AR Rights, submitted the proposed amendment, popular name, and ballot title under A.C.A. § 7-9-107. The proposal would rewrite article 5, § 1 of the Arkansas Constitution to declare fundamental rights to make laws by petition, sign petitions, and collect signatures, criminalize "petition fraud," create voter-cure procedures for challenged signatures, and impose various procedural and substantive limits on legislative interference with the initiative process.

The AG rejected the submission on a single dispositive ground: the ballot title, scored on the Flesch-Kincaid Grade Level formula, ranked at grade level 11.5. Act 602 of 2025 prohibits the AG from certifying ballot titles above an eighth-grade reading level. The rejection was on that ground.

The AG also identified three additional issues the sponsor would want to address on resubmission:

1. "Legal voter" → "qualified electors". The proposed amendment substituted "qualified electors" for "legal voter" in several places, but the ballot title didn't summarize this change. The change might be an "essential fact which would give the voter serious ground for reflection."

2. Limitations on General Assembly's authority. The proposal added a provision prohibiting the General Assembly from amending or repealing a constitutional amendment approved by voters. It didn't address the General Assembly's article 19, § 22 power to refer amendments to the people. The ballot title also didn't name which constitutional sections were being amended, so the reader couldn't see the scope of changes.

3. Conflicting Measures provision ambiguity. The proposed text said: "If two or more measures initiated or referred to the people shall be approved by a majority of the votes severally cast for and against the same at the same election, and provisions of the measures are in irreconcilable conflict, the provision of the measure that received the highest number of affirmative votes shall become law." Two readings: (a) only the conflicting provision becomes law (with non-conflicting provisions left in limbo), or (b) all non-conflicting provisions plus the winning conflicting provision all become law. Plus, "provision" is a smaller part of a measure, but only measures (whole bills/laws/etc.) become law.

This opinion is the procedural setup that AGOp. 2025-046 (rejecting the second submission of the same proposal) builds on.

What this means for you

Ballot initiative sponsors

The eighth-grade reading-level limit in Act 602 of 2025 is the most consequential procedural change to Arkansas ballot-initiative law in years. A ballot title at grade 11.5 is going to get rejected, full stop. Run your title through a Flesch-Kincaid calculator before submission. Microsoft Word's grammar checker reports the score; so do many free online tools.

Reading-level reduction is mechanical: shorter sentences, shorter words, simpler structure. "The legislature shall not amend a constitutional amendment" beats "It is hereby provided that the legislative body shall not be authorized to enact amendments to constitutional amendments approved by the electorate" by several grade levels.

The substantive issues the AG flagged here (definition swaps, reference to article 19 § 22, ambiguous conflict-of-measures language) are the kind of things a careful drafter or constitutional lawyer would catch on review. Get an outside read on your text before submission. Each rejection cycle costs you weeks in calendar time you might not have if you're aiming at a particular election.

Election lawyers

This opinion gives you a clean walk-through of the AG's review framework: (a) popular name analysis (Pafford, Paschall, Kurrus, Chaney), (b) ballot title analysis (Becker v. Riviere, Wilson v. Martin, Bailey v. McCuen), (c) Roberts v. Priest treatment of textual ambiguity, (d) Act 602's reading-level rule. When advising clients on initiative drafting, this opinion is a one-stop reference.

Voters who may be asked to sign

If a sponsor is circulating petitions for this measure, the version they're circulating must have been certified by the AG. The original 11.5-grade-level version was rejected. The first revision (covered in AGOp. 2025-046) was also rejected. As of June 2025, no certified version had been circulated. Verify with the Secretary of State's office before signing.

Civic organizations and policy advocates

Act 602 of 2025 is now a real constraint on initiative drafting. It will affect both proposals you support and proposals you oppose. The "eighth-grade reading level" line is mechanical, but it interacts with substantive accuracy: simplify too much, and the title may become misleading; don't simplify enough, and it gets rejected. Watch for litigation around this tension.

Common questions

Q: What is the Flesch-Kincaid Grade Level formula?

It estimates U.S. school grade level needed to understand a text, using sentence length and syllables per word. Formula: 0.39 × (words/sentences) + 11.8 × (syllables/words) − 15.59. Score of 8.0 means understandable by an 8th grader. Act 602 of 2025 caps Arkansas ballot titles at 8.0.

Q: Why does Act 602 set such a strict reading level?

The legislative purpose, as reflected in the act, is to make ballot titles understandable to ordinary voters in the time they're allotted to read the ballot (10 minutes per A.C.A. § 7-5-309). A grade-12 ballot title runs the risk of leaving most voters guessing.

Q: Did the AG's three "additional issues" themselves require rejection, or just the reading-level problem?

Just the reading level was the dispositive ground for rejection. The other three issues were flagged as things the sponsor "may wish to address." If the sponsor had submitted a grade-8 ballot title with those three substantive flaws, the AG might have substituted a corrected ballot title or rejected on different grounds. A second submission still has to clear all the substantive bars.

Q: What's the difference between popular name and ballot title?

Popular name is a short identifier ("The Arkansas Ballot Measure Rights Amendment"). Ballot title is the longer summary that voters actually read on the ballot. Both must be accurate and non-misleading. The popular name has to be considered together with the ballot title in determining whether the package as a whole would mislead voters.

Q: What happens if the sponsor doesn't address the three additional issues?

On resubmission, the AG will probably reject again on the same or related grounds. AGOp. 2025-046 (the second submission's rejection) addressed the AG's resolution of the conflict-of-measures-and-counties ambiguity that resurfaced in slightly different form in the second draft.

Q: What about the change from "legal voter" to "qualified electors"? Why does that matter?

Under the existing constitution, "legal voters" is the common phrase. Switching to "qualified electors" might broaden or narrow who can sign or be counted. The AG flagged that the ballot title didn't tell voters about this swap. A constitutional change in the meaning of who can sign a petition is an "essential fact" that voters need to know.

Background and statutory framework

A.C.A. § 7-9-107 governs the AG's review of initiated measures. The sponsor submits the original draft (full text plus popular name plus ballot title). Within 10 business days, the AG must (a) certify, (b) substitute and certify a more suitable title, or (c) reject and instruct the sponsor to redesign.

Act 602 of 2025, codified at A.C.A. § 7-9-107, added the eighth-grade Flesch-Kincaid reading-level requirement. The Act has an emergency clause and became effective April 14, 2025, when the Governor approved it (per AGOp. 2025-026).

The substantive standards governing popular names and ballot titles are extensive. Popular names: Pafford v. Hall (must identify the proposal); Paschall v. Thurston (popular name considered with ballot title); Kurrus v. Priest (purpose is to identify for discussion); Chaney v. Bryant and Moore v. Hall (must not be misleading or partisan); May v. Daniels (consider together with ballot title for sufficiency).

Ballot titles: Becker v. Riviere (impartial summary, fair understanding of issues); Wilson v. Martin and Cox v. Daniels (no technical terms not readily understood); Bailey v. McCuen (cannot omit material qualifying as essential fact giving voter serious ground for reflection; must be brief and concise; must be free from misleading tendency by amplification, omission, or fallacy); Plugge v. McCuen (need not be perfect or address every legal argument); Becker v. McCuen (honest and impartial); Christian Civic Action Committee v. McCuen (intelligible idea of scope and significance of change); Armstrong v. Thurston (need not summarize existing law); Richardson v. Martin (statement that measure repeals inconsistent laws is sufficient).

Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), holds that a ballot title cannot be approved if the underlying amendment text is itself ambiguous or self-contradictory. Even though the AG can substitute a different title, the AG cannot rewrite the substantive constitutional text, so a title cannot make sense of an unclear amendment.

McGill v. Thurston, 2024 Ark. 149, 699 S.W.3d 45, says ballot titles need not account for all possible legal effects and consequences.

Act 154 of 2025 amended A.C.A. § 7-9-107(e) to allow the AG to reject measures conflicting with federal law, but didn't have an emergency clause and so wasn't yet effective when this opinion was issued.

Citations

• A.C.A. § 7-9-107(a)–(e) (AG review process)
• A.C.A. § 7-5-309(b)(1)(B) (10-minute voting limit)
• Act 602 of 2025, § 2 (eighth-grade reading-level requirement)
• Act 154 of 2025 (federal-conflict rejection authority, not yet effective at time of opinion)
• Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950)
• Paschall v. Thurston, 2024 Ark. 155, 699 S.W.3d 352
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 699 (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, 825, 20 S.W.3d 376, 382 (2000)
• AGOp. 2025-026 (Act 602 effective date)
• AGOp. 2012-033 (rejection where ballot title evidences little effort)
• AGOp. 2016-051 (rejection where AG would craft "an independent product")

Source

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

Original opinion text

Opinion No. 2025-037
June 2, 2025

Jennifer Waymack Standerfer
Protect AR Rights
Via email only: [email protected]

Dear Ms. Standerfer:

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: THE ARKANSAS BALLOT MEASURE RIGHTS AMENDMENT

[Ballot title text reproduced in opinion describes: fundamental rights to make/repeal laws by petition, sign petitions, collect signatures (with criminal-conviction and sex-offender exclusions); "petition fraud" as a crime; voter-cure notice procedure; 15-county signature ceiling; 24-hour emergency-clause vote rule; two-thirds amendment/repeal vote for initiated acts; no legislative amendment of constitutional amendments; conflicting-measures rule; 10-day litigation window; clear-and-convincing burden; scrivener-error and substantial-compliance protections; severability.]

2. Rules governing my review. Arkansas law requires sponsors of statewide initiated measures to "submit the original draft" of the measure to the Attorney General. An "original draft" includes the full text of the proposed measure along with its ballot title and popular name. Within ten business days of receiving the sponsor's original draft, the Attorney General must respond in one of three ways:

• First, the Attorney General may approve and certify the ballot title and popular name in the form they were submitted.
• Second, the Attorney General may "substitute and certify a more suitable and correct ballot title and popular name."
• 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." 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. This response is also permitted when a proposed ballot title fails to comply with Act 602 of 2025, which prohibits the Attorney General from certifying "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."

If a proposed ballot title is written above an eighth-grade reading level, I am authorized to substitute a "more suitable" ballot title or to reject the proposed ballot title, state the reasons for the rejection, and "instruct the petitioners to redesign the proposed ballot title or proposed measure in a manner that does not violate [Act 602]."

3. Rules governing the popular name. The popular name is primarily a useful legislative device, and its purpose is to identify the proposal for discussion. 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. And it must be considered together with the ballot title in determining the ballot title's sufficiency. Thus, a popular name can be misleading if it references only a subset of the topics covered in the measure's text.

4. 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 amendment's text and give voters a fair understanding of the issues presented. The Court has also disapproved the use of terms that are "technical and not readily understood by voters." Ballot titles that do not define such terms may be deemed insufficient. And, as mentioned above, the General Assembly has prohibited ballot titles "with a reading level above eighth grade."

Additionally, sponsors cannot omit material from the ballot title that qualifies as an "essential fact which would give the voter serious ground for reflection." Yet the ballot title must also be brief and concise lest voters exceed the statutory time allowed to mark a ballot. 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. 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. The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law. The ballot title need not summarize existing law though. 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." But 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.

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 name and the ballot title and the language in the proposed amendment. Yet a ballot title need not account for all possible legal effects and consequences of a proposed amendment.

5. Application. Having reviewed the text of your proposed constitutional amendment, as well as your proposed popular name and ballot title, I must reject your popular name and ballot title because the ballot title does not comply with Act 602 of 2025. As explained above, Act 602 prohibits me from certifying ballot titles that are above an eighth-grade reading level under the Flesch-Kincaid Grade Level formula. The ballot title you have submitted ranks at grade 11.5. 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 statutory requirements. The law neither contemplates nor requires that I compose an entirely new ballot title. 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, instead, rejected the proposal. As a result, my statutory duty is to reject your popular name and ballot title and instruct you to redesign the proposed ballot title in a manner that does not violate the requirements of the Act.

6. 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:

• Change of "legal voter" to "qualified electors." Your ballot title does not summarize this substitution in your proposed constitutional amendment, even though this information could be an "essential fact which would give the voter serious ground for reflection."

• Ambiguity regarding the limitations on the General Assembly's authority. Your proposed amendment adds a provision to Article 5, § 1 that prohibits the General Assembly from amending or repealing "a constitutional amendment approved by a vote of the people." It does not amend the General Assembly's Article 19, § 22 powers to refer amendments to the people. Yet your ballot title fails to name which sections of the constitution your measure amends, so the extent of its changes to the General Assembly's authority is not clear. Your ballot title must provide "voters a fair understanding of the issues presented and the scope and significance of the proposed changes in the law." Without naming in your ballot title the specific constitutional provisions you propose changing, you cannot fully explain the "scope and significance of the proposed changes in the law."

• Conflicting Measures. Your ballot title and proposed constitutional amendment contain similar statements regarding how conflicting measures become law. But both are ambiguous and, therefore, misleading. Your proposal states as follows: "If two or more measures initiated or referred to the people shall be approved by a majority of the votes severally cast for and against the same at the same election, and provisions of the measures are in irreconcilable conflict, the provision of the measure that received the highest number of affirmative votes shall become law."

One reading of this statement is that only the conflicting provision of the measure with the highest number of affirmative votes becomes law: "the provision … shall become law." Under this reading, it is unclear what happens to the non-conflicting provisions of the two or more measures (if they received enough votes). But a second interpretation is that all the provisions not in conflict (if they received enough votes) become law, along with the conflicting provision that received the most votes.

Finally, this statement is also confusing because a provision is a smaller part of a measure. And only measures ("any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character") become law.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General