Opinion No. 2018-086

July 25, 2018

Skip Cook
Arkansans for Governmental Reform
10705 Paul Eells Drive, Suite #6
North Little Rock, AR 72113

Dear Mr. Cook:

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 I 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 reference 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

The Arkansas Citizens’ Redistricting Amendment

Ballot Title

This is an Amendment to the Arkansas Constitution that changes the manner for the Decennial Redistricting of Arkansas Congressional and State legislative districts. The Amendment establishes a Citizens’ Redistricting Commission (the Commission) consisting of seven members. The amendment repeals Article 8 of the Arkansas Constitution that establishes a Board of Apportionment consisting of the Governor, the Secretary of State and the Attorney General. That Board currently establishes the State legislative districts. The Amendment repeals Arkansas Code Sections 7-2-101-105 and removes from the General Assembly the authority to establish the districts for the United States Congress. The Amendment provides that one of the members shall be appointed by the Majority Leader of the House of Representatives, one by the Minority Leader of the House of Representatives, one by the Majority Leader of the Senate, and one by the Minority Leader of the Senate. These four members of the Commission shall choose three additional members of the Commission by majority vote or if the Commission is deadlocked by blind selection from a pool of individuals nominated by each commissioner. No more than four of the members of the Commission shall have any political party affiliation as determined by statewide voter registration and the three member elected by the commissioners shall not be affiliated with any political party as determined by statewide voter registration. Each member of the Commission shall be a registered voter in Arkansas for the five years preceding their appointment and have voted in each of the last two statewide general elections. A person is ineligible to serve as a commissioner if the person or his/her immediate family member currently or has at any time during the five years preceding his or her appointment served as an elected or appointed statewide or constitutional officer, a member of the United States Congress, the Arkansas General Assembly or as a city or county official. A person is ineligible to serve as a commissioner if the person currently or at any time during the five years immediately preceding his or her appointment has served as a federal, state or local lobbyist. A person is ineligible to serve as a commissioner if the person currently or at any time during the five years immediately preceding his or her appointment has been an employee of the federal, state or local government, the United States Congress, the Arkansas General Assembly or a constitutional officer. A person who is retired from active duty in any branch of the United States Armed Forces or currently serves or has previously served in the United States Armed Forces Reserve is not ineligible as a result of such military service. A person is ineligible to serve as a commissioner if the person currently or at any time during the five years immediately preceding his or her appointment has been an employee or compensated in any manner by the campaign committee of a candidate for the United States Congress, the Arkansas General Assembly or a statewide office or has been elected or appointed to a position with a national, state or local political party organization in the state, or has been employed or has been compensated in any manner by a national, state, or local political party organization in this state. The appointments to the Commission shall be made between January 15 and Feburary [sic] 1 in years ending in one. At a meeting called by the Secretary of State no later than February 15, the four members shall elect within 14 days of the initial meeting by majority vote the three additional members. Five members of the Commission constitue [sic] a quorum and five or more affirmitive [sic] votes are required for any official action. For any commissioner who does not complete his term, the replacement commissioner shall be appointed in the manner of the commissioner’s original appointment. Commissioners shall have a term of office of ten years. In addition to the five-year restrictions on certain public service prior to becoming a commissioner, during the term of office and for three years thereafter a commissioner shall be ineligible for registration as a paid lobbyist or hold any elective or appointed office in the executive or legislative branch of government of this State. The Commission shall establish single-member congressional and legislative districts using the following criteria in the following order of priority: districts shall be established on the basis of population and shall not vary by more than one percent of the ideal population for such districts, with the ideal population for each district determined by dividing the number of districts to be established into the population of the State, except as required to comply with the criteria following below, United States Constitution and the Federal Voting Rights Act; the districts shall be composed of contiguous territory; the geographic integrity of any city, county, local neighborhood, or community of interest shall be respected; districts shall be reasonably compact. In no case shall a district have a population that varies by more than five percent from the ideal district population nor shall a district have a population that varies by more than one percent from the average district population. The Amendment provides that no district shall be drawn to discriminate against or favor a political party, incumbent legislator or member of Congress nor be drawn to augment or dilute the voting strength of a group of individuals speaking the same language or racial minority group. The Amendment establishes the procedures the Commission must follow for establishing the legislative and congressional districts. The Amendment provides that the Commission shall have standing in all legal actions. The Amendment provides that the Department of Finance and Administration shall submit to the legislature a reccomendation [sic] for appropriation for adequate redistricting expenses and that the legislature shall make the necessary appropriations by majority vote. The Amendment provides that original jurisdiction is vested in the Arkansas Supreme Court to compel the Commission to perform its duties, which is an exception to the State’s right to sovereign immunity.

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]

“It has long been regarded as axiomatic that the majority of voters, when called upon to vote for or against a proposed measure, will derive their information about its contents from an inspection of the ballot title immediately before exercising the right of suffrage.”[9] Accordingly, 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.[10] 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.”[11] 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.”[12] The Court has also disapproved the use of terms that are “technical and not readily understood by voters.”[13] Without a definition of such terms in the ballot title, the title may be deemed insufficient.[14]

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.”[15] At the same time, however, a ballot title must be brief and concise;[16] otherwise voters could run afoul of the statutory five-minute limit in voting booths[17] when other voters are waiting in line.[18] 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.[19] Yet the title must be “free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring.”[20] The ballot title must be honest and impartial,[21] and it must convey an intelligible idea of the scope and significance of a proposed change in the law.[22]

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.[23] The Court has 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.”[24] 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

Your proposed popular name and ballot title are certified as submitted. I believe a cautionary note is warranted, however, in light of the significance of the subject matter undertaken—apportionment and legislative and congressional redistricting—and the complexity and far-reaching effects of this proposal. You should be aware that experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot title challenge. Any ambiguity in the text of a measure could lead to a successful challenge.

Pursuant to Ark. Code Ann. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and of the associated penalties for violations. Enclosed herewith are instructions that should be incorporated in your petition prior to circulation.

Sincerely,


Leslie Rutledge
Attorney General

Enclosures

[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 infra note 20.
[8]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[9]Wilson v. Martin, 2016 Ark. 334, *7, 500 S.W.3d 160, 166 (citing Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)).
[10]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
[11]Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
[12]Id. at *9, 500 S.W.3d at 159.
[13]Wilson, 2016 Ark. 334 at *9, 500 S.W.3d at 167 (stating that “voters [should not] be placed in a position of either having to be an expert in the subject or having to guess as to the effect his or her vote would have”).
[14]Id.
[15]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[16]See Ark. Code Ann. § 7-9-107(b).
[17]Ark Code Ann. § 7-5-309 (Supp. 2017).
[18]Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
[19]Id. at 293, 884 S.W.2d at 946-47.
[20]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, 318 Ark. at 249, 884 S.W.2d at 610.
[21]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[22]Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted).
[23]Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
[24]Id.