Why did the Arkansas Attorney General reject the popular name and ballot title for the proposed 'Arkansas Ballot Measure Rights Amendment,' and what would the sponsors need to fix to get certification?
Subject
Whether to certify the popular name and ballot title of a proposed initiated constitutional amendment ("The Arkansas Ballot Measure Rights Amendment") submitted under A.C.A. § 7-9-107 by Protect AR Rights.
Plain-English summary
Jennifer Waymack Standerfer, on behalf of Protect AR Rights, asked the AG to certify the popular name and ballot title for a proposed constitutional amendment. The proposal would rewrite Arkansas Constitution article 5, § 1 (the initiative and referendum provisions) to do many things: declare a fundamental right to make and repeal laws by petition, declare a fundamental right of registered voters to sign petitions, declare a fundamental right of U.S. citizens (with certain criminal-conviction exclusions) to collect signatures, criminalize "petition fraud," create a notice-and-cure procedure when signatures are challenged, set procedural rules for challenging petitions and ballot titles, and authorize a two-thirds legislative vote to amend or repeal initiated acts (with no power to amend constitutional amendments).
The AG had previously rejected an earlier version of this proposal in Opinion 2025-037. This was the resubmission. The AG rejected it again, on two grounds.
Ground 1: Reading level. Act 602 of 2025 requires ballot titles to be written at an eighth-grade reading level on the Flesch-Kincaid Grade Level formula. The earlier submission scored 11.5; the new one scored 9.3. Closer, but still not at eighth grade. That alone would require rejection.
Ground 2: Substantive ambiguity in the measure's text. The proposal would change article 5, § 1's "Amendment of Petition" paragraph so that correction of an insufficient state-wide petition is permitted only if the petition has "valid signatures of qualified electors equal to … At least seventy-five percent (75%) of the required number of signatures of qualified electors from each of at least fifteen (15) counties of the state, but shall require signatures of qualified electors from no more than fifteen (15) counties." Read literally, that simultaneously requires signatures from at least fifteen counties and no more than fifteen counties, which means exactly fifteen counties. But other parts of the same proposal (and the ballot title itself) say signatures cannot be required from more than fifteen counties, suggesting the sponsors meant to set a fifteen-county ceiling, not a fifteen-county floor-and-ceiling.
That contradiction matters because the AG's certification job is to make sure voters who read the ballot title aren't misled. If the underlying text is genuinely ambiguous, no ballot title (whether the sponsors' or one the AG could substitute) can accurately summarize it. Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), and a long line of AG opinions back to 1999 establish that the AG can reject a ballot title because of ambiguities in the underlying measure. So the AG had a statutory duty under A.C.A. § 7-9-107(e) to reject and "instruct … [the sponsor] to redesign your proposed measure and the ballot title."
The AG was careful to clarify that "the merits" of the measure aren't part of the analysis. AG certification is not a vote on whether the proposal is a good idea.
What this means for you
Ballot initiative sponsors and drafters
Two practical lessons come out of this opinion. First, the eighth-grade Flesch-Kincaid requirement under Act 602 of 2025 is a real and binding rule, not aspirational. Run your draft through a Flesch-Kincaid calculator before submission. If you score above eighth grade, you'll get rejected even if every other requirement is met. The score is sentence-length and word-syllable driven: shorter sentences, common words, and you'll get there.
Second, internal consistency in the underlying measure text is just as important as the ballot title's accuracy. The AG's certification job extends to checking whether the underlying measure is itself ambiguous or self-contradictory. A drafting error like the one here, where two provisions of the same amendment appear to set different rules, will sink the certification even if the ballot title alone is clean. Have an outside drafter or constitutional lawyer read the full text for internal consistency before submitting.
The good news is rejections are not terminal. The AG explicitly tells the sponsor to "redesign your proposed measure and the ballot title" and resubmit. Each cycle of submission and rejection is essentially a free drafting consultation, but it costs you calendar time. With a 2026 election deadline and signature-gathering ahead, multiple rejection cycles can foreclose making the ballot.
Election lawyers advising sponsors
When you're brought in to fix a rejected proposal, focus on three checkpoints: (1) Flesch-Kincaid score on the ballot title, (2) internal consistency across the measure's text (don't have provision A say "X must be ≥ N" and provision B say "X cannot be > N" if you mean different things), and (3) consistency between the measure's text and the ballot title (the ballot title here said "no more than fifteen counties" but the underlying text required "exactly fifteen counties"). The AG flagged all three and the inconsistency between text and title was the dispositive issue.
Voters who may be asked to sign
If a sponsor is circulating petitions for an amendment that hasn't been certified by the AG, that's a problem. The certification process exists so that what you read on the petition matches what the constitution would actually do if the amendment passes. When sponsors gather signatures on an uncertified ballot title, the petitions can be invalidated.
Civic organizations watching the initiative process
Act 602 of 2025's eighth-grade reading-level requirement is going to filter out a lot of complex ballot titles. Watch for sponsors trying to simplify titles in ways that lose substantive accuracy. The AG can also reject titles that simplify so far that they become misleading. There's a real tension between the readability requirement and substantive accuracy that may itself become litigated.
Common questions
Q: What is the Flesch-Kincaid Grade Level formula?
It's a readability metric that estimates the U.S. school grade level needed to understand a text. The formula uses average sentence length and average syllables per word: 0.39 × (words/sentences) + 11.8 × (syllables/words) − 15.59. A score of 8.0 means a text understandable by an 8th grader; 12.0 means college level. Microsoft Word, Google Docs, and most online calculators produce the score automatically. Act 602 of 2025 requires Arkansas ballot titles to score at 8.0 or below.
Q: Why does the AG care about the underlying measure's text being ambiguous? Aren't ballot titles separate from the measure?
The AG can't certify a ballot title that misleads voters. If the underlying measure is ambiguous, no ballot title can accurately summarize it. The Arkansas Supreme Court in Roberts v. Priest said exactly this: ambiguity in the text prevents certification of the title. The AG is essentially saying, "I can't write or approve a fair summary of a self-contradictory text."
Q: The drafters obviously meant "no more than fifteen counties." Why couldn't the AG just substitute their intent?
Because the AG isn't authorized to rewrite the constitutional text under A.C.A. § 7-9-107. The AG can substitute a different ballot title, but cannot substitute different operative language for the constitutional amendment itself. If the text is "at least fifteen … but no more than fifteen," that's what would go before voters and what would amend the constitution. The AG's role is to send it back to the sponsors to rewrite their own proposal.
Q: Does this opinion say the AG is opposed to the measure's policy?
No. The AG was explicit that the certification analysis is "unrelated to my view of the proposed measure's merits." The AG is not allowed to consider whether a measure is good policy. The job is purely about whether voters reading the ballot title would understand what they were voting on, and whether the underlying text is internally consistent.
Q: How many tries does a sponsor get?
There's no statutory cap. The AG cycle is "submit → review → certify or reject with reasons → resubmit." Each rejection comes with reasons, so each cycle teaches the sponsor what to fix. But each cycle also burns calendar time. Sponsors aiming for a particular election need to start early enough that rejection cycles don't consume the petition-gathering window.
Background and statutory framework
Arkansas allows citizens to initiate constitutional amendments and statutes by petition under article 5, § 1 of the Arkansas Constitution. The procedural workflow is in A.C.A. § 7-9-101 et seq.
Section 7-9-107 sets the ballot-title certification process. The sponsor submits the proposed popular name, ballot title, and full text to the Attorney General. The AG must either certify or reject. If rejected, the AG states reasons and instructs the sponsor to redesign. If certified, the sponsor circulates petitions.
Act 602 of 2025 added the Flesch-Kincaid eighth-grade reading-level requirement. The AG has now applied it twice in this single ballot proposal, rejecting first at 11.5 and then at 9.3.
The AG's authority to reject based on substantive ambiguity in the underlying measure (not just the ballot title) was confirmed by the Arkansas Supreme Court in Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000). The AG's predecessors have rejected on this ground in many opinions, including 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, and 1999-430.
The proposal at issue would rewrite article 5, § 1 substantially. Significant features include: declaring fundamental rights to petition, sign, and canvass; criminalizing "petition fraud"; creating mandatory voter-cure notice procedures (10 business days to fix a flagged signature); shifting the burden in legal challenges to require "clear and convincing evidence" against the petition; replacing canvasser affidavits with declarations under penalty of perjury; preventing rejection of measures with timely-corrected scrivener errors; and limiting the legislature's power to amend or repeal initiated measures (two-thirds for initiated acts; no amendment power for constitutional amendments). The substantive scope is what makes drafting precision difficult, and what produced the internal inconsistency that triggered rejection.
Citations
- A.C.A. § 7-9-107 (popular name and ballot title certification)
- A.C.A. § 7-9-107(e) (rejection and redesign instruction)
- Act 602 of 2025 (Flesch-Kincaid eighth-grade reading-level requirement)
- Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000)
- AG Opinions rejecting on textual 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
Source
Original opinion text
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-046
July 1, 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. In Attorney General Opinion No. 2025-037, I rejected a prior version 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
The Arkansas Ballot Measure Rights Amendment
Ballot Title
This measure amends the Arkansas Constitution. It gives the people the fundamental right to make and repeal laws by petition. It gives Arkansas registered voters the fundamental right to sign a petition. It gives U.S. citizens who have not been convicted of certain crimes the fundamental right to collect signatures on a petition. It makes "petition fraud" a crime. The legislature will decide the penalty range for criminals who defraud petitions. The government will notify registered voters before it rejects their signatures. The government will count the signature of registered voters who timely correct problems with their signature. The government will not require signatures on petitions to be from more than fifteen counties. The legislature may amend or repeal an initiated act by a two-thirds vote. The legislature shall not amend a constitutional amendment. A county or city government may amend or repeal a county or local measure by a two-thirds vote. The ballot title of a referendum will be "This referendum repeals…" followed by the title of the Act. The Secretary of State must publish a notice that explains how the name or title can be challenged. A lawsuit against the ballot title must be filed within ten days after the notice is published. The courts will quickly review of lawsuits against a petition or title. Lawsuits against petitions shall be proven by clear and convincing evidence. The government will not reject a measure for a filing or clerical error that is timely corrected. The government will not reject a measure that substantially complies with the law. Any laws affecting this amendment must be ministerial. It clarifies that only registered voters' signatures will be counted. Previously, canvassers signed an affidavit. This changes the affidavit to a declaration under penalty of perjury. This measure repeals all inconsistent state laws. If part of the amendment is held invalid, the rest of it can stand on its own.
-
Rules governing my review. In Attorney General Opinion No. 2025-037, 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. I rely on those same rules and legal standards outlined in that opinion and incorporate them here by reference.
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Application. In Attorney General Opinion No. 2025-037, I explained that I could not approve your ballot title because Act 602 of 2025 requires ballot titles to be written at an eighth-grade reading level on the Flesch-Kincaid Grade Level formula, yet your ballot title ranked at grade level 11.5. The ballot title you have provided with your current submission ranks at 9.3 on the Flesch-Kincaid Grade Level formula. Although this submission is much closer to an eighth-grade reading level, it still does not meet the requirements of Act 602. I must reject your ballot title, however, not solely because of the reading level of your ballot title but because of a key ambiguity I have identified in the text of your proposed measure and ballot title. This ambiguity prevents me from (1) ensuring that your ballot title is not misleading or (2) substituting a more appropriate ballot title.
The ambiguity pertains to how your proposal changes the law regarding the number of counties from which signatures of qualified electors are required. A provision in the "Amendment of Petition" paragraph of Article 5, § 1 currently states that correction or amendment of an insufficient state-wide petition shall only be permitted if the petition contains valid signatures of legal voters equal to "[a]t 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." Your proposed measure would change the language of this provision so that it reads as follows: "At least seventy-five percent (75%) of the required number of signatures of qualified electors from each of at least fifteen (15) counties of the state, but shall require signatures of qualified electors from no more than fifteen (15) counties."
I suspect that you mean for this language to (1) require signatures from electors from at least 15 counties and (2) prevent any law requiring that signatures be gathered from more than 15 counties. But that is not what you have written. Rather, your proposed language requires that signatures be gathered from at least 15 counties, and it requires that the signatures be from no more than 15 counties. In other words, the signatures must come from exactly 15 counties. This language is inconsistent with another provision in the "Referendum" paragraph of your text, which states, "Initiative or referendum petitions provided for under this Article 5, Section 1 shall not be required to be filed for more than fifteen (15) counties." It is also inconsistent with your ballot title, which says, "The government will not require signatures on petitions to be from more than fifteen counties." Thus, it is not clear whether a petition with signatures from electors from more than 15 counties would be considered "insufficient."
This ambiguity in your text prevents 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."
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General