Opinion No. 2017-097

September 22, 2017

Mary L. Berry, Committee Officer
Arkansas True Grass BQC
Post Office Box 511
Summit, AR 72677

Dear Ms. Berry:

I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed initiated measure.

At the outset, I wish to make clear to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not, consider the merits of the measure when making my determination to certify or reject a popular name and ballot title.

The Attorney General is required, pursuant to Ark. Code Ann. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or constitutional amendments before the petitions are circulated for signature. The law provides that the Attorney General may, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General may reject the entire petition.

Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the proposed act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is “clearly contrary to law,”[1] this office will not require that a measure’s proponents acknowledge in the ballot title any possible constitutional infirmities.[2] Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposal.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.[3]

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name

The Arkansas Recreational Marijuana Amendment


Ballot Title

An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of marijuana and products produced therefrom for recreational purposes by adults, 18 years of age or older may not be prohibited under State law; recognizing that such activities remain unlawful under federal law; providing for the expungement of marijuana related conviction(s) from all criminal records in the state; defining recreational marijuana containing more than 0.3% THC; permitting the cultivation, production, distribution, and sale of recreational marijuana by any business entity or adult; providing that a business entity or an adult may cultivate, produce, distribute, sell, purchase, transport, carry, marijuana and products produced therefrom for recreational purposes; providing that a person 18 years of age or older, or business entity may cultivate up to 25 mature and 25 non mature marijuana plants in a location not subject to public view without optical aid; providing that the location with more than 12 growing marijuana plants is registered with the county sheriff’s office; permitting the transport of recreational marijuana upon any public highway or street; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% recreational marijuana excise tax and a local sales tax of 2%; permitting any business that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana to any adult person 18 years of age or older; providing that the recreational marijuana that is sold in the form of edibles or drinkables (a)shall [sic] not be designed to appeal to children; (b) shall not exceed 10 milligrams of THC per serving, and (c) labeling or packaging must provide product information; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under State law; and providing that the amendment (a) is not intended to affect the ability of employers to have policies restricting the use of recreational marijuana by employees, (b) is not intended to permit driving under the influence of marijuana, (c) is not intended to permit the transfer of recreational marijuana to anyone under 18 years of age, (d) does not permit anyone under 18 years of age to cultivate, produce, sell, purchase, transport, carry, or use recreational marijuana and; (e) is not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or, any license entity pursuant to the Arkansas Medical Marijuana Amendment of 2016.

RESPONSE

The popular name is primarily a useful legislative device.[4] It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal.[5] The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.[6]

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented.[7] According to the Court, a ballot title will not be legally sufficient unless it “adequately inform[s]” the voters of the contents of a proposed amendment or act so that they can make a “reasoned decision in the voting booth.”[8] A ballot title’s failure to “honestly and accurately reflect what is contained in the proposed [act or] Amendment” may lead the Court to conclude that the “omission is significant.”[9] The Court has also disapproved the use of terms that are “technical and not readily understood by voters.”[10] Without a definition of such terms in the ballot title, the title may be deemed insufficient.[11]

Additionally, if information omitted from the ballot title is an “essential fact which would give the voter serious ground for reflection, it must be disclosed.”[12] At the same time, however, a ballot title must be brief and concise;[13] otherwise voters could run afoul of Ark. Code Ann. § 7-5-309’s five-minute limit in voting booths when other voters are waiting in line.[14] The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.[15] The title, however, must be “free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring.”[16] The ballot title must be honest and impartial,[17] and it must convey an intelligible idea of the scope and significance of a proposed change in the law.[18]

Furthermore, the Court has confirmed that a proposed measure cannot be approved if the text of the proposal itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure.[19] The Court concluded that “internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself.”[20] Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without (1) clarification or removal of the ambiguities in the proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal.

It is my opinion, based on the above precepts, that a number of additions or changes to your ballot title are necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities in the text of the measure itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you may, if you wish, redesign the proposed measure and ballot title, and then resubmit for certification. In order to aid your redesign, I highlight below the more concerning ambiguities in the text of your proposal.

Subsection 3(c) of your proposed amendment defines “carry on” or “carrying on” as “to have possession of an item on one’s body and personal effect.” And subsection 3(k) defines “personal effects” as “items a person has in his or her possession that they often carry with them.”

These subsections contain ambiguities that must be resolved before I can accurately summarize their language in a ballot title. First, the meaning of “and personal effect” from subsection 3(c) is unclear. If it is intended as part of the prepositional phrase “on one’s body … ,” this would be an unusual construction. In everyday usage, “items” are not described as being located “on one’s … personal effect.” If this is the construction intended, the subsection would need to more explicitly convey this intent. On the other hand, if “and personal effect” is not governed by the prepositional phrase “on one’s body,” then it appears to be extraneous verbiage with no obvious meaning.

Relatedly, “personal effects” are defined in subsection 3(k) as items that people “often carry with them.” “Often” is a vague and subjective modifier, and it is not itself a defined term. I am therefore unable to give voters a fair understanding, in a ballot title, of what it means to carry or possess items “often.”

Your proposed amendment references possession of marijuana and marijuana paraphernalia throughout, and marijuana possession is one of the primary activities your proposed amendment seeks to legalize. It is therefore crucial that the ambiguities identified above be clarified, so that your proposal can be summarized in a ballot title that will meet the standards established by the Court.


CONCLUSION

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on review of any revisions of your proposal.

My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title.[21] You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,


Leslie Rutledge
Attorney General

Enclosure


[1]See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).
[2]As part of my review, however, I may address constitutional concerns for consideration by the measure’s proponents.
[3]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
[4]Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
[5]See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term “partisan coloring,” see note 16 infra.
[6]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[7]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
[8]Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
[9]Id. at *9, 500 S.W.3d at 159.
[10]Wilson v. Martin, 2016 Ark. 334, *9, 500 S.W.3d 160, 167.
[11]Id., 500 S.W.3d at 167.
[12]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[13]See Ark. Code Ann. § 7-9-107(b).
[14]Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
[15]Id. at 293, 844 S.W.2d at 946-47.
[16]Id. at 284, 884 S.W.2d at 942. Language “tinged with partisan coloring” has been identified by the Arkansas Supreme Court as language that “creates a fatally misleading tendency” (Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that “gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words.” Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994).
[17]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[18]Christian Civic Action Committee, note 16 supra, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted).
[19]Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
[20]Id.
[21]Ark. Code Ann. § 7-9-107(c).