Opinion No. 2017-122

November 28, 2017

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

Dear Ms. Berry:

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 substitute and certify a ballot title that is more suitable (in terms of affording voters a fair understanding of the issues presented), section 7-9-107 does not contemplate that I generate a ballot title when the ballot title submitted is wholly deficient. Nor does the statute require that I modify the proposed measure itself in order to then summarize the measure’s text 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

The Arkansas Recreational Marijuana Amendment

Ballot Title

An amendment to the Arkansas Constitution concerning the cannabis plant, and in connection therewith, permitting 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; recognizing that such activity remain unlawful under federal law; providing for the expungement of all marijuana related convictions from criminal records that were imposed under the Arkansas Uniformed Controlled Substances Act prior to the enactment of this amendment; providing for the release of persons from incarceration, probation, and parole whose current and only convictions were for violating the State law in regards to marijuana; defining recreational marijuana containing more than 0.3% THC; providing that a business entity or an adult may cultivate, produce, distribute, sell, purchase, transport, and use recreational marijuana and products produced therefrom; providing that a person 18 years of age or older, or business entity may cultivate marijuana plants in a location not subject to public view without optical aid; providing that any location where more than a total of 12 marijuana plants is being grown for recreational purposes, the location is registered with the county sheriff’s office in the county in which the plants are being grown; permitting the transport of recreational marijuana out of public view; permitting the consumption of recreational marijuana wheresoever the consumption of alcohol is permitted by adults; providing that sales of recreational marijuana will be subject to existing sales tax, and an additional 5% recreational marijuana excise tax, and a local sales tax of 2%; permitting any adult or business entity that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana and products produced therefrom to any adult person 18 years of age or older with proof of age; limiting the quantity of recreational marijuana products that can be sold per day to buyers presenting an out of state proof of age; providing that the recreational marijuana that is sold in the form of edibles or drinkables (a) shall not be designed to appeal to children; (b) shall not exceed 10 milligrams of the 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; providing that the following activities shall be or remain unlawful under State law; (a) cultivating, producing, distributing, selling, possessing and using recreational marijuana while under 18 years of age; (b) providing recreational marijuana to a person under 18 years of age with or without remuneration; (c) cultivating more than 12 marijuana plants in a location that has not been registered with the county sheriff’s office; (d) cultivating recreational marijuana subject to public view without optical aid; (e) [sic] using flammable solvents to extract THC from the marijuana plant in a residential area; (f) selling more than one half an ounce of smokable [sic] or vaporizable recreational marijuana and more than 32 ounces of edible or drinkable recreational marijuana to an adult who presents an out of state identification; (g) selling recreational marijuana within 1500 feet of a public or private school, daycare center, or church; (h) selling recreational marijuana products that does [sic] not provide labels with required product information, designed to appeal to children, or exceeds 10 mg per serving; (i) transporting marijuana subject to public view; (j) consuming recreational marijuana where the consumption of alcohol is prohibited or where the owner(s) prohibited such use; (k) operating a motorized vehicle with a THC blood content that exceeds 14 nanograms per milliliter; providing penalties for violations pursuant to the Amendment that include (a) a fine not to exceed two-hundred dollars ($200.00) for a first time offense, (b) a Class C misdemeanor charge for second time offense with the right to cultivate, produce and sell relinquished for one year, and (c) a Class B misdemeanor charges for subsequent offenses with the right to cultivate, produce, and sell recreational marijuana relinquished for 5 years; 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, or use recreational marijuana and; (e) is not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or, any license [sic] entity pursuant to the Arkansas Medical Marijuana Amendment of 2016.

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 measure contains a lengthy section that appears to have been simply copied over to the ballot title. Section 10 (“Unlawful activities pursuant to this Amendment”) has 13 subsections, which purport to describe activities related to recreational marijuana that will be “unlawful.” And in a clause with 11 subsections, your proposed ballot title states that “the following activities shall be or remain unlawful under state law … .” The clause in the ballot title tracks the language in Section 10 almost exactly. As a result, determining if the ballot title “adequately inform[s]”[5] voters of the measure’s content would require me to pick and choose language from the text of the measure itself, which is tantamount to crafting a ballot title out of whole cloth. This is beyond the scope of my authority under section 7-9-107.

Moreover, there is a fundamental inconsistency between the “unlawful” activities listed in Section 10, and the activities discussed in Section 7 (“Employers, driving, minors, medical marijuana privileges.”). Section 7 appears to create three classes of marijuana-related activities: those the proposed measure is not “intended to affect,” such as an employer’s ability to restrict the use of marijuana by its employees;[6] those the proposed measure is “not intended to permit,” such as driving under the influence of marijuana;[7] and those the proposed measure is not “intended to limit,” such as rights and privileges under the Arkansas Medical Marijuana Amendment of 2016.[8]

As an initial matter, I cannot distinguish between the conduct described in Section 10 as “unlawful” and the conduct described in Section 7 as merely not “permit[ted].” For example, “driving under the influence of marijuana” appears to be both an unlawful activity[9] and an activity that the proposed measure is “not intended to permit … .”[10] And the same is true of minors cultivating, producing, distributing, etc. recreational marijuana.[11]

There are important, operative differences between unlawful conduct and conduct that is not affirmatively permitted under a given law. To the extent a proposed amendment addresses both categories of conduct, the sponsor must attempt to explain (in the text of the measure itself) how these categories interact. Because your proposed measure fails to do so, I cannot begin to review the sufficiency of the proposed ballot title.

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.[12] 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 falls short of the minimum criteria under section 7-9-107. Therefore, I cannot 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 and enable a “reasoned decision in the voting booth.” Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2. Likewise, a ballot title cannot be approved if the text of the proposal 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]Lange, 2016 Ark. 337, 500 S.W.3d 154, at n. 2 (noting the importance of voters’ ability to make a “reasoned decision in the voting booth.”).
[6]See Section 7(a).
[7]See Section 7(c).
[8]See Section 7(g).
[9]Section 10(a)(13).
[10]Section 7(c).
[11]Compare Section 7(e) (“Nothing in this amendment is intended to permit any minor to cultivate … recreational marijuana and products produced therefrom.”) with Section 10(1) (“The following activities … are unlawful … pursuant to this amendment: cultivating … recreational marijuana if under the age of eighteen (18) years old.”).
[12]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).