Opinion No. 2018-046

May 4, 2018

Ms. Mary L. Berry, Officer
Arkansas True Grass Ballot Question Committee
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. 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]
When 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] 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.”[5] 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.[6] 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.”[7] And 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 one submitted is wholly deficient. Nor does the statute require that I modify the proposed measure itself, in order to then summarize its text in a suitable ballot title.[8] Instead, crafting and accurately summarizing the measure are the sponsor’s responsibilities 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 [sic] 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 [sic] 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 [sic] 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; 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 [sic] sell recreational marijuana and products produced therefrom to an 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 food or drink (a) shall 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; 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) [sic] a Class C misdemeanor charge for the second time offense with the right to cultivate, produce and sell relinquished for one year, and (c) a Class B misdemeanor charges [sic] for subsequent offenses with the right to cultivate, produce, and sell recreational marijuana relinquished for 5 years; and providing that the Amendment (a) shall not be construed to affect the ability of employers to have policies restricting the use of recreational marijuana by employees, (b) shall not be construed to permit driving under the influence of marijuana, (c) shall not be construed to permit the transfer of recreational marijuana to anyone under 18 years of age, (d) nor permit anyone under 18 years of age to cultivate, produce, sell, distribute, transport, possess, or use recreational marijuana, and (e) shall not be construed to limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity in regards to medical marijuana pursuant to the Arkansas Medical Marijuana Amendment of 2016.

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal submitted. Your submission has a fundamental shortcoming that requires me to reject the ballot title, popular name, and proposed measure as drafted.

Your current submission appears to be an amalgam of multiple earlier recreational-marijuana submissions to this office. Every section in this submission has been previously addressed and rejected in previous Attorney General opinions due to textual ambiguities. The language is either identical or virtually identical to previously rejected language.[9]

The constitutional amendment you are proposing involves a convoluted state-wide decriminalization scheme that purports to include some regulatory oversight. In my opinion, the proposal is fundamentally ambiguous to the extent that it precludes the crafting of a ballot title that will satisfy the Court’s test for ballot title sufficiency.

CONCLUSION

My office is not charged with any role in drafting initiated amendments or acts. Nor can I advise individual sponsors, who must vet their proposed measures, popular names, and ballot titles to ensure they meet the criteria established by section 7-9-107 and the Arkansas Supreme Court. Your submission falls short of these criteria. I must therefore reject your ballot title, popular name, and proposed measure.

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]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994) (internal quotation omitted).
[5]Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
[6]Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
[7]Id.
[8]See Op. Att’y Gen. 2017-032 (citing Ark. Code Ann. § 25-16-701, which prohibits the Attorney General from engaging in the private practice of law).
[9]For example, the current proposal states in section 4 that the identified marijuana-related activities “shall be lawful … and shall be regulated by the state” and that “penalties” may be imposed for violations. But my office has rejected previous, very similar proposals where the regulatory scheme and legality of the identified activities were unclear. E.g., Ops. Att’y Gen. 2017-012, 2015-132.