Opinion No. 2017-120

November 20, 2017

Ms. Clair Danner, Sponsor
277 Marion County 5029
Saint Joe, AR 72675

Dear Ms. Danner:

I am responding 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 constitutional amendment.

At the outset, I wish to make clear 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 a measure when making a decision to certify or reject.

Section 7-9-107 authorizes my office to 1) certify the popular name and ballot title of a proposed measure, 2) substitute and certify the popular name and ballot title, or 3) reject the entire submission if the “nature of the issue [] is presented in such manner that the ballot title would be misleading” to voters.[1] The purpose of my review under section 7-9-107 is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment.[2] In this way, voters will have a fair understanding of the issues presented by reference to the ballot title alone.[3]

At the time they are submitted to my office under section 7-9-107, the popular name and ballot title for proposed constitutional amendments and acts “should be complete enough to convey an intelligible idea of the scope and import of the proposal.”[4] And it follows from my duty to reject misleading submissions that any ballot title submitted for review should represent the sponsor’s attempt to summarize her proposed amendment or act in a non-misleading fashion. While I am authorized to craft and certify a ballot title that is more suitable for voters to understand, section 7-9-107 does not contemplate that I substitute a ballot title for one that is wholly deficient as submitted. Nor does the statute require that I modify the proposed measure itself in order to then summarize the measure in a suitable ballot title. Crafting the measure’s text and accurately summarizing that text in a ballot title are the sponsor’s responsibility prior to submission.

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

Natural Resource Cannabis Amendment


Ballot Title

An amendment proposed by the people of the State of Arkansas, adhere to the full legalization of the cannabis plant (genus cannabis) making it legal under Arkansas State law; of which federal law holds precedence over State laws; therefore, bringing the intention issue of the otherwise continued federal raids to an end; to amend the Arkansas Constitution to provide Arkansas legislation with the Natural Resource Cannabis Amendment; in collaboration and synonymously with the General Assembly, Congress, and the Bureau of Cannabis/Marijuana Control, all shall promulgate and adopt regulations and enact legislation that will foster, implement, and aid in the providing governing [sic] to decriminalize cannabis at the local, state, and federal levels, to leave to the states a power to establishing a comprehensive regulatory structure and system to legalize, control, license, and regulate the activities of cannabis/marijuana/hemp; protecting the health and public safety of consumers and small businesses by imposing strict anti-monopoly restrictions in the cannabis industry; and including, but not limited to, the conflating of the cannabis issues: promoting the economic and ecological vitality growth, eliminating revenue shortfalls with an abundance of revenues, to protect the clean energy natural resource of inexhaustible potentials, allowing for energy independent biomass technology and jobs; providing the citizenry with a future of opportunity by bringing clean energy jobs to America in the cannabis industry categories of textile, commodity, agricultural, and goods and services, in that, including but not limited to the cultivation, distribution, sale, and use of the cannabis plant (genus cannabis) to be regulated and taxed in like manner as similar products, purpose, and categories such as any other textile, commodity, agricultural, goods and services produced in or out of this State whether by import or export; making it illegal for any person(s), agency, entity, or medical pharmaceutical to cause excessive and unreasonable pricing or price gouging for recreational, industrial, commercial, personal, and medical purposes; and all products derived/produced therefrom the cannabis plant shall be lawful within the State of Arkansas; and providing that qualified person(s), bank, business, agency, entity, or medical facility engaging in or assisting with the cannabis industry shall be legal; which adheres to the current regulations and, local, state, and federal laws, and shall be regulated under State law upon passage; providing that the Bureau of Cannabis/Marijuana Control and the Cannabis/Marijuana Control Board shall administer and regulate the cannabis/marijuana industry regulatory structure with relevant expertise; whereas the listed activities with respect to cannabis/marijuana/hemp and products derived/produced therefrom containing cannabis are lawful in this State with required licensing, and shall be regulated and taxed in like manner; the General Assembly shall enact an excise tax of (5%) five percent to be levied upon wholesale sales of cannabis/marijuana/hemp and cannabis infused goods and services, requiring the first $30 million in revenue raised annually by such tax be credited to the public schools; that the listed activities with respect to cannabis and products derived therefrom containing cannabis by person(s) twenty-one (21) years of age or older are lawful in this State with required licensing, and shall be regulated in like manner; and the use thereof as an intoxicant similar to alcohol, and under the age of twenty-one (21) years shall be illegal. The State shall allow for the cannabis industry operation of retail and non-retain facilities for cannabis; tax industrial and commercial cannabis in like manner; permitting the use of medical cannabis/marijuana to assure that patients, including those under 21 years of age, may have safe access to medical cannabis to treat disease, injury, or illness; requiring the release and exoneration of non-violent cannabis/marijuana offenders in this State from incarceration, probation, and or parole, and dismissing, and or expunging, such convictions from such criminal records in this State; and providing that the sale of any cannabis and cannabis infused products, goods and services are subject to all State and local sales taxes, special taxes, excise duty on inland/import, and custom duties on border/export; and providing that the tax revenues, excluding local sales taxes, on any cannabis and cannabis infused products, goods and services shall be distributed (10%) to the Bureau of Cannabis/Marijuana Control; (5%) to the Cannabis/Marijuana Control Board; (20%) to the Arkansas Department of Education Public Schools; (15%) to the Arkansas Agriculture Department; (10%) to the Arkansas Department of Human Services Aging and Adult Services; (20%) to the Retinue Consortium Corporation; (10%) to the Arkansas Department of Human Services Parks and Tourism Department; (10%) to the Arkansas Highway and Transportation Department; and to the Community Reinvestment Fund §6(dd)(8)(a-e) $300,000,000 without fiscal year limitations upon passage of this amendment; and providing regarding this amendment that no legislators can remove the law because it is an amendment to the Arkansas Constitution, and can only be done so by the voters.

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. And my office attempts in the usual course to identify problems in the text of a proposed measure that prevent certification of a satisfactory ballot title. But there are threshold shortcomings in your submission that preclude any detailed review under section 7-9-107(c).

First, the text of your proposed constitutional amendment is “so all-encompassing that to include every important factor of the proposal in the ballot title would cause the ballot title to be so complex, detailed and lengthy that the Arkansas voter could not intelligently make a choice on the title within the five minutes allowed in the voting booth.”[5] The measure is some 36 pages long, not including the ballot title. It has 17 distinct sections, many of which have subsections and sub-subsections. At least one section (itself 13 pages long) has sub-sub-subsections.[6]

The Arkansas Supreme Court has recognized that “at some point, length and complexity alone might militate against a voter’s ability to form an intelligent opinion about the issue at hand.”[7] In my opinion, this point has been reached here. The text of your measure is overlong and extremely dense. As a result, I cannot begin the process of identifying the textual ambiguities that would result in a ballot title misleading to voters. I must reject the submission for this reason.

Second, the proposed ballot title suggests that your proposed constitutional amendment would change federal law. The ballot title states, for example, that the measure would “bring[] … otherwise continued federal raids to an end,” as well as “aid in … decriminaliz[ing] cannabis at the local, state, and federal levels.” It is inherently misleading to give voters the impression that amending the Arkansas Constitution could negate or alter federal law. Because an amendment purporting to do so would likely be unconstitutional,[8] your submission is fundamentally flawed.

CONCLUSION

The Arkansas Constitution does not charge my office with any role in drafting initiated constitutional amendments or acts. My duty in reviewing submissions under section 7-9-107 is to the electorate as a whole. I cannot advise or advocate for individual sponsors.[9] Sponsors must make the necessary efforts to ensure that their proposed measures, popular names, and ballot titles have been thoroughly vetted for compliance with the high standards established by the Court prior to their submission to my office.

Your submission is defective to the point that I cannot begin to analyze whether the ballot title, or the nature of the issue, is presented in such a way that the ballot title would be misleading. While the deficiencies noted above are not necessarily all of the issues preventing certification of a popular name and ballot title for your proposed measure, they are sufficiently serious that I am unable to further review your submission pursuant to section 7-9-107(c). I must reject your entire ballot title, popular name, and proposed measure.

Sincerely,


Leslie Rutledge
Attorney General

Enclosure

[1]Ark. Code Ann. § 7-9-107(c).
[2]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
[3]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
[4]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994) (internal quotation omitted). The Arkansas Supreme Court has explained that ballot titles are legally insufficient unless they “adequately inform” voters of the the proposed amendment’s content, thereby enabling a “reasoned decision in the voting booth.” Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2. And a ballot title’s failure to “honestly and accurately reflect what is contained in the proposed Amendment” may lead the Court to conclude that the “omission is significant,” making the proposed ballot title deficient. Id. at *9, 500 S.W.3d at 159. Likewise, a ballot title cannot be approved if the text of the proposal itself creates a disconnect between the ballot title and the content of the proposed measure. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). This is because “internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title, and to confusion in the ballot title itself.” Id.
[5]Page v. McCuen, 318 Ark. 342, 347, 884 S.W.2d 951, 954 (1994).
[6]See Section 4 (“Definitions”).
[7]Walker v. Priest, 342 Ark. 410, 426, 29 S.W.3d 657, 665 (2000).
[8]See Gralike v. Cook, 191 F.3d 911, 915 (8th Cir. 1999), aff’d 531 U.S. 510 (2001) (striking an initiated amendment to the Missouri Constitution that “order[ed] members of Missouri’s congressional delegation to use their authority to amend the United States Constitution to impose the term limits ... on Congressional service.”).
[9]See Op. Att’y Gen. 2017-032 (citing Ark. Code Ann. § 25-16-701 (Supp. 2015) for the proposition that the Attorney General is prohibited from engaging in the private practice of law).