Opinion No. 2018-032

April 10, 2018

Randall Bynum, Esq.
Dover Dixon Horne, PLLC
425 West Capitol Avenue, Suite 3700
Little Rock, AR 72201

Dear Mr. Bynum:

I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2017), 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 a decision to certify or reject.

Arkansas Code Annotated § 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, if practicable, or 3) reject the entire submission if “the ballot title, or 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 or act.[2] In this way, voters will have a fair understanding of the issues presented by referenced to the ballot title alone.[3]
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,”[4] this office will not require that a measure’s proponents acknowledge in the ballot title any possible constitutional infirmities.[5] 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.

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

An Amendment to Allow Four Casinos to Operate in Arkansas, One Each at a Specifically Designated Location Within Each of the Following Four Counties: Benton County, Boone County, Miller County, and Pulaski County

Ballot Title

An Amendment to the Arkansas Constitution authorizing four casinos in Arkansas, one each at a specifically designated location in each of the following counties in Arkansas: Benton County, an approximate 247 acre [sic] area as identified by the Benton County Assessor, as of March 7, 2018, as Parcel Numbers 18-10408-000, 18-10494-000, 18-10447-000 and 18-10518-000, having a street address of 16994 Kincheloe Road [sic] Siloam Springs, Arkansas and more specifically described by legal description in this Amendment; Boone County, an approximate 62 acre [sic] area as identified by the Boone County Assessor, as of March 26, 2018 [sic] as Parcel Number 021-07943-002, 021-07943-000C, 021-07955-002C, 021-07939-000 and 021-07939-001, having street addresses of 13721, 13721A and 13781 Bird Lane, Omaha, Arkansas and more specifically described by legal description in this Amendment; Miller County, an approximate 35 acre [sic] area as identified by the Miller County Assessor, as of March 26, 2018, as a portion of Parcel Number 0840020, having a street address of 7815 U.S. Highway 67 East, Texarkana, Arkansas, and more specifically described by legal description in this Amendment; and Pulaski County, an approximate 200 acre [sic] area as identified by the Pulaski County Assessor, as of March 21, 2018, as Parcel Numbers 44R0290000500, 44R0290000600, 44R0200006300 and 44R0300000100, located between Crystal Valley Road and Lawson Road, Pulaski County, Arkansas and more specifically described by legal description in this Amendment; all being subject to all applicable State laws and local ordinances related to health and building codes, or any related requirement and provisions, but providing that no local zoning, land use laws, subdivision regulations or similar provisions shall prohibit the development or operation of the casinos authorized by this Amendment and providing that no casino shall be located in an area zoned exclusively residential as of January 1, 2018; providing that the casinos shall be subject to the laws enacted by the General Assembly in accord with this Amendment and regulations promulgated by the Arkansas Gaming Commission in accord with laws enacted by the General Assembly; defining casino gaming and gaming as dealing, operating, carrying on, conducting, maintaining, or exposing for play any game played with cards, dice, equipment, or any mechanical, electromechanical, or electronic device or machine for money, property, checks, credit, or any representative value; creating the Arkansas Gaming Commission to regulate casinos in accord with laws enacted by the General Assembly, with the Arkansas Gaming Commission comprised of five (5) commissioners, each appointed by the Governor for staggered 5-year terms; providing for the General Assembly to appropriate monies to or for the use of the Arkansas Gaming Commission; requiring each casino to pay to the Arkansas State Treasury a net casino gaming receipts tax equal to twenty percent (20%) of its annual net casino gaming receipts; and providing that the net casino gaming receipts tax revenue shall be distributed seventy percent (70%) to the State Highway and Transportation Department Fund as identified in Ark. Code Ann. Section 19-6-405 or its successor fund, fifteen percent (15%) to be equally divided among all other counties in Arkansas in which a casino is not operating during the month for which the net casino gaming receipts tax is paid, eight percent (8%) to the General Revenue Fund, three percent (3%) to the Arkansas Economic Development Commission Industry Training Program or its successor program, one percent (1%) to the Arkansas Department of Human Services for gambling disorder prevention services, one percent (1%) to the county in which the casino is located, and two percent (2%) to the city or town in which the casino is located and, in the event the casino is not located within a city or town, then the two percent (2%) allocated to the city or town shall go to the county in which the casino is located; defining annual net casino gaming receipts as gross receipts for a 12-month period from casino gaming less amounts paid out or reserved as winnings to casino patrons for that 12-month period; subjecting each casino to the same income, property, sales, use, employment and other taxation as any for-profit business located in the county and city or town in which the casino is located, except that the Arkansas Gross Receipts Act of 1941, and any amendments or replacements thereto, and local gross receipts taxes shall not apply to casino gaming receipts, and no additional State or local taxes, fees, or assessments shall be imposed on the casinos except as authorized in this Amendment; allowing a casino to operate any day for any portion or all of any day; acknowledging that current Arkansas law prohibits selling or complimentary serving of alcoholic beverages on Christmas Day, but allowing the selling or complimentary serving of alcoholic beverages in casinos during all hours the casino operates but otherwise subject to all applicable Arkansas laws involving the distribution and sale of alcohol; permitting the shipment into any county of Arkansas in which casino gaming is authorized of gambling devices shipped and delivered in accordance with applicable federal law (15 USC §§ 1171-1178 and amendments and replacements thereto); providing that the General Assembly shall not amend any provision of this Amendment except that the General Assembly by a two-thirds vote may amend the section creating the Arkansas Gaming Commission and setting forth its powers and the section setting forth the taxation of casinos and the distribution of such taxes; providing that the county in which a casino is to be located may prohibit such casino by an election in such county called by a petition signed by thirty eight percent (38%) of the registered voters of the county and providing that the collection of signatures for such petition shall not begin before November 7, 2018 [sic] and such petition shall be filed with the county clerk of said county by January 7, 2019, and if the petition is sufficient said election to be held within thirty (30) days of final legal actions regarding the sufficiency of the petition; rendering the provisions of this Amendment severable; declaring inapplicable all constitutional provisions and laws to the extent they conflict with this Amendment, but not otherwise repealing, superseding, amending, or otherwise affecting Amendment 84 (bingo or raffles) or Amendment 87 (State lottery) to the Arkansas Constitution, or Arkansas Act 1151 of 2005 (electronic games of skill).

GUIDELINES

The popular name is primarily a useful legislative device.[6] 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.[7] The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.[8]

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.[9] 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.”[10] 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.”[11] The Court has also disapproved the use of terms that are “technical and not readily understood by voters.”[12] Without a definition of such terms in the ballot title, the title may be deemed insufficient.[13]

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.”[14] At the same time, however, a ballot title must be brief and concise;[15] 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.[16] 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.[17] 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.”[18] The ballot title must be honest and impartial,[19] and it must convey an intelligible idea of the scope and significance of a proposed change in the law.[20]

Furthermore, the Court has confirmed that a ballot title cannot be approved if the text of the proposed measure itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the measure.[21] 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.”[22] 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.

RESPONSE

In light of the Court’s pronouncements, noted above, it is my opinion 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 because of several fundamental ambiguities in the text of the measure itself. Because of these significant issues, I have not conducted a thorough, point-by-point review of your proposal.[23] Rather, I will point out what I view to be baseline, fundamental deficiencies with your submission.

DISCUSSION

A fatal deficiency of primary importance, in my opinion, is the complete lack of information regarding casino licensing under your proposal, and whether there is any correlation between ownership of the properties listed in your proposal and licensing of a casino or a casino operator.

Section 4 of your measure states—at least with respect to the four locations specifically designated for casinos—that “all licenses hereunder” would be subject to laws passed by General Assembly. However, it is unclear what “licenses” this phrase is meant to refer to. The measure does not clearly provide for any actual licenses. Moreover, it is silent regarding any licensing process.

This silence regarding the licensing process is particularly problematic because also left unaddressed is the relationship or correlation, if any, between ownership of the properties your measure describes and the licensing of a casino to be located on those properties. As mentioned above, Section 4 references “[t]he initial licensed casino operator” after each legal description of the four properties where casinos would be authorized under your proposal. But your proposal does not indicate—much less state—who the initial licensed casino operators would be, how they would be selected for a license, or what their qualifications must be to operate a casino.[24] If it is your intention that the owner or owners of the described properties would be, simply by virtue of such ownership, the initial licensed casino operators at each property—without any other qualifications—this fact must, in my opinion, be disclosed in a ballot title, together with the identity with these owner(s).[25]

Furthermore, even if the land ownership does not guarantee a casino-operator’s license, knowing who owns the land would still be of critical importance to the voters, as the adoption of your proposed amendment would in all likelihood lead to an immense increase to the value of those properties. Thus, in my opinion, ownership of the properties must also be disclosed in a ballot title. The Court has on more than one occasion rejected ballot initiatives “that failed to disclose in the ballot title the direct benefits to a ‘relatively few’ special interests.”[26] As the Court stated, “the majority of voters will read a proposed amendment for the first, and only, time when they read it on the ballot. Thus, it is crucial that the ballot title not be misleading, and that it disclose enough information so that voters can make ‘an intelligent choice and be fully aware of the consequences of their vote.’”[27] In this instance, I think that it is unrealistic and insufficient to expect voters to know, based on your proposed ballot title, who owns the parcels or where they are located within each county.

Moreover, it is unclear from your proposal whether the owner or owners of these properties (and the initial licensed operator(s), if they are not one and the same) would be constitutionally granted the exclusive right to have a casino on their properties, be licensed casino operators, or both. If that, too, is your intention, I believe this information would also give voters serious ground for reflection and therefore must be disclosed in a ballot title for the measure.

As a final note, and while not reason alone for me to reject your popular name and ballot title, I must mention that your ballot title is quite long, containing 1,036 words. As I have explained in the past,[28] while the Court is willing to give the citizen-initiative process under our constitution[29] a liberal construction when determining the sufficiency of a ballot title,[30] the Court has clearly stated “that does not mean that liberality knows no bounds or [that] common sense has no place in the matter.”[31] As the Court explained:

While neither the length nor complexity of the ballot title should be a controlling factor, it is a consideration. The great majority of Arkansas voters are limited, as a practical matter, in the amount of time that can be spent considering such a proposal. Furthermore, common sense requires that we ask whether the average voter can make an intelligent considerate decision based on the ballot title.[32]

With these precedents in mind, prudence would suggest that you consider whether a ballot title of a length like the one you have submitted would meet the Court’s standards for intelligent consideration by the voters in the allotted time.
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.[33]

Sincerely,


Leslie Rutledge
Attorney General

Enclosure

[1]Ark. Code Ann. § 7-9-107(c) (Supp. 2017).
[2]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846, 848 (1948).
[3]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
[4]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).
[5]As part of my review, however, I may address constitutional concerns for consideration by the measure’s proponents.
[6]Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
[7]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 18 infra.
[8]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[9]Riviere, 270 Ark. at 226, 604 S.W.2d at 558 (internal citations omitted).
[10]Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
[11]Id. at *9, 500 S.W.3d at 159.
[12]Wilson v. Martin, 2016 Ark. 334, *9, 500 S.W.3d 160, 167.
[13]Id., 500 S.W.3d at 167.
[14]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[15]See Ark. Code Ann. § 7-9-107(b).
[16]Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
[17]Id. at 293, 884 S.W.2d at 946-47.
[18]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).
[19]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[20]Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted).
[21]Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
[22]Id.
[23]Cf. Op. Att’y Gen. 2016-099.
[24]The lack of any information in your proposal regarding the licensing process also omits critical information that would be relevant to voters, such as the transferability of casino-operator licenses; and whether such licenses could be suspended or revoked, on what basis, and by whom.
[25]As to this aspect of your proposal, voters, in my opinion, also would need to know whether there must be four separately licensed operators, one for each property listed, or whether a person or entity could hold multiple, or even all, licenses by virtue of owning multiple properties. Additionally, voters would need to know whether there would be any restrictions on the alienability of these properties to unknown and unnamed persons or entities should your amendment be adopted.
[26]Parker v. Priest, 326 Ark. 386, 388, 931 S.W.2d 108, 109 (1996) (citing Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982)). The Parker Court went on to say that “[i]t is clear that the benefit to specific private interests can indeed be a matter [that] would give the voter ‘serious grounds for reflection.’” Id.
[27]Id. at 392, 931 S.W.2d at 111 (emphasis added).
[28]See, e.g., Ops. Att’y Gen. 2017-055, 2017-042, 2016-099.
[29]Ark. Const., art. 5, § 1 (Supp. 2017).
[30]See Becker, supra note 19, 270 Ark. at 225, 604 S.W.2d at 558.
[31]Dust v. Riviere, 277 Ark. at 6, 638 S.W.2d at 666.
[32]Id. The Court, referencing its earlier opinion in Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938), noted that “the length of the title could be a serious objection because the law recognizes that an elector’s time is limited in occupying a voting booth.” Id. The Court ultimately held that the ballot title, which was 706-words long in that case, was “so complex, detailed, lengthy, misleading and confusing that the Arkansas voter cannot intelligently make a choice based on the title.” Id.
[33]Ark. Code Ann. § 7-9-107(c).