Opinion No. 2018-047

May 4, 2018

Mr. John W. Hall Jr.
Attorney at Law
1202 Main Street, Suite 210
Little Rock, AR 72202

Dear Mr. Hall:

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

Arkansas Cannabis Adult and Medical Use and Regulation Amendment

Ballot Title

A constitutional amendment:

To make possession and growth of cannabis (marijuana) for personal use by adults legal under state and local law, despite the statutory prohibition in federal law, because this amendment is implemented by the People of Arkansas under the Tenth Amendment to the U.S. Constitution.

To repeal Amendment 98 of [sic] the Arkansas Constitution, the Arkansas Medical Marijuana Amendment of 2016. It replaces Amendment 98 with a simplified method of acquiring medical cannabis for a greater number of qualifying conditions at a reduced tax rate and at any dispensary.

It allows patients with a medical cannabis card with a qualifying condition to purchase cannabis at the same tax rate as pharmaceutical drugs and to allow minors with at least one qualify [sic] condition with a medical cannabis card the right to use cannabis and to assign a designated caregiver to purchase and administer the cannabis to the minor.

To allow the sale of cannabis (marijuana) to adults (persons 21 years of age or older) for personal use; to allow the personal and commercial cultivation, possession, and use of cannabis by adults; to permit the taxation of revenue derived from commercial cannabis facilities; to permit the promulgation of administrative rules and regulations for commercial sales and production and personal possession and production through the Alcohol Beverage Control Division of the Department of Finance and Administration; and to prescribe certain penalties for violations of this amendment.

To allow adults [sic] possession of up to four ounces of cannabis in one’s own home or on their person for personal use as a state constitutional right as long as minors (those under 21) do not possess or have access to it.

To allow up to six mature plants and six seedlings (no higher or wider than 12 inches) to be grown for personal use and to allow licensed dispensaries to grow up to 200 mature plants (any size) and 200 seedlings (no higher or wider than 12 inches), subject to increase depending on market supply and demand.

Cultivation facilities and dispensaries holding medical marijuana licenses under Amendment 98 are grandfathered in, and they may continue to provide cannabis to adults until the ABC has received, processed, and issued licenses for adult use facilities, but must continue to serve patients that are in possession of a medical cannabis card with the same product and price structure that was available prior to implementing adult use sales.

Individuals may petition to initiate a local ordinance to provide for the number of cannabis establishments allowed within a municipality or county or to completely prohibit cannabis establishments within a municipality or county. Such ordinance shall be submitted to the electors of the municipality or county at the next regular biennial election when a petition is signed by qualified electors in the municipality in [sic] a number of signatures equal to the percentage required for a local option or repeal of local option election. (That is currently 38% of the votes cast for chief executive or circuit clerk by qualified electors in the municipality at the last preceding general election. If the percentage changes by the General Assembly, the percentage for cannabis local option [sic] be the same as for alcohol local option. That change, however, must occur no less than one year before an election.)

To proscribe limits and penalties for driving or boating under the influence of cannabis.

To require the Arkansas Alcohol Beverage Control Division to develop and publish rules and regulations for all cannabis businesses and to issue licenses to all cannabis establishments and allow municipalities to act if the ABC does not.

To promote the benefits of medical cannabis to combat opiod [sic] and other drug abuse.

To eradicate the illicit market in cannabis.

To promote tourism.

To distribute state sales tax for the sale of cannabis as follows: 40% for public education, pre-K-12; 15% for maintenance and repairs to roads and bridges; 15% for the implementation, administration, and enforcement of this amendment; 10% for drug rehabilitation efforts by grants or direct state expenditures; 10% for salaries and support of prosecutors; and 10% for salaries and support of public defenders.

To seal the records of all those convicted at any time of misdemeanor possession of cannabis, if not already sealed, and without fee.
To release those incarcerated in Arkansas prisons or jails, if any, for cannabis charges of possession of 16 ounces or less or possession or cultivation of six or less cannabis plants, and to seal their records, and to seal the records of any persons who have served their sentence [sic] and been released for charges of possession of 16 ounces or less or possession or cultivation of six or less plants.

This Amendment shall be broadly construed to accomplish its intent, and, where possible, it is self-executing.

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal submitted. Your submission has a fundamental flaw that requires me to reject the ballot title, popular name, and proposed measure as drafted. Your proposed ballot title is wholly inadequate, in my view, to fairly and adequately summarize the substance of your proposed constitutional amendment.[6] But more importantly, I believe the length and complexity of your proposed amendment preclude the crafting of a ballot title that will satisfy the rigorous standards that section 7-9-107 obligates my office to verify.

DISCUSSION

The Court has acknowledged that the Arkansas Constitution “does not specify a limit on the length of a proposal….”[7] But the Court has also noted a “practical constraint” in this regard:

[T]here is in effect a practical constraint on the length of both a proposed amendment and its ballot title that stems from the requirements that a ballot title convey the scope and import of the proposal while also imparting a fair description of the proposal to allow voters to vote intelligently in the limited time allotted them in a voting booth.[8]

The Court has pronounced that “[a] proposed measure must be of a size capable of having a ballot title which will not only convey the scope and import of the measure, but also impart a description of the proposal so voters can cast their votes intelligently and with a fair understanding on the issue.”[9] This has led the Court to observe that a sponsor’s “choice or insistence in covering [the subject matter] in so much detail can be said to have sounded the proposal’s own death knell.”[10] The Court further explained that a proposal may be “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.”[11]

In my judgment, your proposed twenty-seven-page constitutional amendment is so expansive that its scope and import cannot, as a practical matter, be conveyed to the voter in a ballot title that will satisfy the Court’s test for ballot title sufficiency.
Its subject matter includes the regulation and licensing of the “adult use” of marijuana; the “medical” use of marijuana (including the repeal, but continued efficacy in some respects, of Amendment 98 to the Arkansas Constitution); the authorization and prohibition of various specific acts in relation to both categories of marijuana use; actions relating to industrial hemp; local licensing and regulation of certain marijuana-related entities; and taxation and penalties in connection with marijuana-related activities, among other matters. It is detailed to an extent that I do not believe a sufficient ballot title can be crafted.

In sum, the ballot title you have submitted fails to sufficiently summarize the substance of your proposed constitutional amendment and describe changes the proposal would make in existing state law. But this failure cannot be rectified, in my opinion. I believe this is a case where the text, in the words of the Court, “precludes the writing of an acceptable ballot title.”[12] Because the voters have a limited amount of time to spend in the voting booth, they cannot practically be expected to read and comprehend a ballot title of the complexity, detail, and length that would be necessary in this case to meet the criteria established by section 7-9-107 and the Court.

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]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]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.” Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2. The title must be “free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring.” Bailey v. McCuen, 318 Ark. 277, 284, 884 S.W.2d 938, 942 (1994). 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).
[7]Walker. v. Priest, 342 Ark. 410, 417, 29 S.W.3d 657, 659 (2000) (citing Amendment 7, which is currently codified as Ark. Const. art. 5, § 1).
[8]Crochet, 326 Ark. at 343–44, 931 S.W.2d at 130–31.
[9]Id.
[10]Page v. McCuen, 318 Ark. 342, 347, 884 S.W.2d 951, 954 (1994).
[11]Id. (citations omitted) (concluding that the proposal’s text was “so expansive that it precludes the writing of an acceptable ballot title.”).
[12]Id.