Opinion No. 2019-014

February 27, 2019

Nate Steel, Attorney at Law
Capitol Law Group
400 West Capitol Avenue, Suite 2910
Little Rock, AR 72201

Dear Mr. Steel:

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

An Amendment to Create a Citizens Redistricting Commission for Decennial Redistricting of Arkansas Congressional and State Legislative Districts

Ballot Title

An amendment to establish a citizens commission for the purposes of decennial redistricting of congressional and state legislative districts (the “Commission”) to consist of seven (7) members, one appointed by the Speaker of the Arkansas House of Representatives, one by the President Pro Tempore of the Arkansas Senate, one by the Speaker Pro Tempore of the Arkansas House of Representatives, one by the Majority Leader of the Arkansas Senate, on by the Majority Leader of the Arkansas House of Representatives, one by the Minority Leader of the Arkansas Senate, and one by the Minority Leader of the Arkansas House of Representatives; repealing Article 8 of the Arkansas Constitution establishing a Board of Apportionment comprised of the Governor, the Secretary of State, and the Attorney General; repealing Arkansas Code Annotated Section 7-2-101 through Arkansas Code Annotated Section 7-2-105; removing from the General Assembly the authority to establish decennial districts for each of its members of the United States Congress and placing that authority with the citizens commission formed hereunder; requiring the Commission to reapportion the house of representatives [sic] and the senate [sic] immediately following the official reporting of each decennial census of the United States, with reapportionment based on the population within each house [sic] and senate [sic] district as reported by the official decennial census of the United States; requiring the Commission to establish 100 house [sic] districts, with each house [sic] district to elect one member of the house of representatives [sic]; requiring the Redistricting Commission to establish 35 senate [sic] districts, with each senate [sic] district to elect one member of the senate [sic]; requiring that appointments to the Commission be made between January 1 and February 1 of each calendar year ending in one; and requiring that the Speaker of the Arkansas House of Representatives selects the chairman of the Commission.

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 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. 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.[25] Instead, crafting and accurately summarizing the measure are the sponsor’s responsibilities prior to submission.

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 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 court challenge.

Please also be aware that this office has already certified the popular name and ballot title of what I understand to be two separate and independently proposed constitutional amendments that are—in most substantive respects—identical to your proposed measure.[26] Although this office has no statutory authority to refuse to review or to reject a proposed measure on that basis, sponsors of such similar, yet nevertheless separate and thus competing, measures should be aware of the potential for voter confusion during the subsequent phases of the initiative process, especially at the voting booth.[27]

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 (1984).
[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 n.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 Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)).
[10]Becker, 270 Ark. at 226, 604 S.W.2d at 558.
[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., 500 S.W.3d at 167.
[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 Comm., 318 Ark. at 249, 884 S.W.2d at 610 (1994).
[21]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[22]Christian Civic Action Comm., 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.
[25]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).
[26]See Ops. Att’y Gen. 2018-135, 2018-086.
[27]See Op. Att’y Gen. 2017-010 (expressing my “grave concerns about the potential for certifying two or more petitions that are identical in all substantive respects[,]” and my belief that, at least as to sponsors who appeared to be in communication or working with each other, “certifying identical measures would unavoidably lead to confusion.”).