Why did the Arkansas AG reject a 2013 marriage-equality amendment ballot title?

Arkansas AG Opinion 2013-111: Marriage Amendment Title

Plain-English summary

Opinion 2013-111 rejected the ballot title for a proposed Arkansas constitutional amendment defining marriage as a union between two people regardless of gender and protecting clergy and religious organizations from certain marriage-related requirements.

"I conclude that I must reject your proposal due to deficiencies in the ballot title and in your proposal’s text."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

The ballot title did not explain how the proposal would change existing constitutional and statutory law. The proposal's religious-freedom section was also unclear about what "the refusal to do so" referred to and whether "civil claim" and "cause of action" meant the same or different things.

"The ballot title is also deficient because it makes no attempt to summarize for the voter what effect your proposal would have on existing law."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"First, it is not clear what you mean by ‘[t]he refusal to do so....’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"It is not clear whether you intend these two terms to be synonymous or to refer to distinct legal actions."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What marriage rule did the proposal contain?

Section one stated that marriage consisted of the union between two persons regardless of gender.

"SECTION ONE. Marriage consists of the union between two persons regardless of gender."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

What did the religious-organization provision say?

It said clergy and religious organizations could not be required to provide services, facilities, or goods related to solemnizing a marriage, and that refusal would not create a civil claim or cause of action.

"No member of the clergy or religious organization shall be required to provide services, facilities or goods relating to the solemnization of marriage. The refusal to do so shall not create any civil claim or cause of action."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Why couldn't the AG simply rewrite the ballot title?

The missing explanation of existing law would have required the office to create a largely independent title, which the opinion said exceeded its role.

"I am not authorized to simply craft, out of whole cloth, a ballot title that amounts to a completely independent product."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Did the rejection express a view on marriage equality?

No. The opinion said the office did not consider the merits, philosophy, or ideology of proposed measures during ballot-title certification.

"My office, in the certification of ballot titles and popular names, does not concern itself with the merits, philosophy, or ideology of proposed measures."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Could the sponsor resubmit?

Yes. The sponsor could address the identified problems and submit a revised amendment, popular name, and ballot title.

"You may, after addressing the matters discussed above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at your convenience."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Background and statutory framework

A.C.A. § 7-9-107 required the AG to certify proposed initiative and referendum popular names and ballot titles before petitions circulated. The review focused on whether they accurately and impartially summarized the proposal.

"Consequently, this review has been limited primarily to a determination ... of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

The opinion applied the rule that a ballot title must provide a fair understanding of the proposal and disclose an omitted essential fact that would give voters serious ground for reflection.

"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."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Holding

The AG rejected the ballot title and directed the sponsor to redesign the measure and title.

"My statutory duty, under these circumstances, is to reject your proposed ballot title, for the foregoing reasons, and to instruct you to ‘redesign’ the proposed measure and ballot title."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Citations and references

Statutes discussed by Opinion 2013-111:

• "A.C.A. § 7-9-107" Official opinions search
• "A.C.A. § 7-9-107(b)" Official opinions search
• "A.C.A. § 7-5-522" Official opinions search

Cases cited by Opinion 2013-111:

• "Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000)" Official opinions search
• "Bradley v. Hall, 220 Ark. 925, 927, 251 S.W.2d 470 (1952)" Official opinions search

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DustTIn McCDANIEL

Opinion No. 2013-111

September 17, 2013

Jennifer Pierce

1501 North University, Suite 228

Little Rock, Arkansas 72207

Dear Ms. Pierce:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107
(Repl. 2007), of the following popular name and ballot title for a proposed

constitutional amendment:

Popular Name

THE ARKANSAS MARRIAGE EQUALITY AMENDMENT

Ballot Title

An amendment to the Arkansas Constitution to provide that marriage
consists of the union between two persons regardless of gender;
providing that no member of the clergy or religious organization
shall be required to provide services, facilities or goods relating to
the solemnization of marriage and the refusal to do so shall not
create any civil claim or cause of action; providing that all laws and
constitutional provisions which conflict with this amendment are
hereby repealed to the extent that they conflict with this amendment

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the
popular name and ballot title of all proposed initiative and referendum acts or
amendments before the petitions are circulated for signature. The law provides that
the Attorney General may substitute and certify a more suitable and correct
popular name and ballot title, if he can do so, or if the proposed popular name and

323 CENTER STREET, SUITE 200 * LittLe Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

Jennifer Pierce
Opinion No. 2013-111
Page 2

ballot title are sufficiently misleading, may reject the entire petition. Neither
certification nor rejection of a popular name and ballot title reflects my view
of the merits of the proposal. This Office has been given no authority to
consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make
legal determinations concerning the merits of the 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,” this office will not require that a measure’s proponents acknowledge in the
ballot title any possible constitutional infirmities. As part of my review, however,
I may address constitutional concerns for consideration by the measure’s
proponents.

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 proposed amendment.

The purpose of my review and certification is to ensure that the popular
name and ballot title honestly, intelligibly, and fairly set forth the purpose of
the proposed amendment or act.”

The popular name is primarily a useful legislative device.* 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.’ The popular name is to be considered together with the ballot title in
determining the ballot title’s sufficiency.”

" 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. MceCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

2 See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).

Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).

4 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),

• May v, Daniels, 359 Ark. 100, 105, 194 S,W.3d 771, 776 (2004).

Jennifer Pierce
Opinion No. 2013-111
Page 3

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.° According
to the court, if information omitted from the ballot title is an “essential fact which
would give the voter serious ground for reflection, it must be disclosed.”’ At the
same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-
107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit
in voting booths when other voters are waiting in line.’ 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.” The title,
however, must be free from any misleading tendency, whether by amplification,
omission, or fallacy; it must not be tinged with partisan coloring.'® The ballot title
must be honest and impattial,'' and it must convey an intelligible idea of the scope
and significance of a proposed change in the law.”

Furthermore, the Court has confirmed that a proposed amendment cannot be
approved if “[t]he text of the proposed amendment itself contribute[s] to the
confusion and disconnect between the language in the popular name and the ballot
title and the language in the proposed measure.”’ 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.”’ 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 clarification of the ambiguities.

° Becker y. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
’ Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).

• Id. at 288, 884 S.W.2d at 944.

” Id. 293, 884 S,W.2d at 94647.

'° Id, at 284, 884 S.W.2d at 942.

"' Becker v. MeCuen, 303 Ark, 482, 489, 798 S.W.2d 71, 74 (1990).

"2 Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994)
(internal quotations omitted),

'3 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000).

4 Id.

Jennifer Pierce
Opinion No. 2013-111
Page 4

Having analyzed your proposed amendment in light of the foregoing precepts, I
conclude that I must reject your proposal due to deficiencies in the ballot title and
in your proposal’s text.

The ballot title is also deficient because it makes no attempt to summarize for the
voter what effect your proposal would have on existing law. As I pointed out in
my response to a recent submission that is very similar to yours (see Opinion No.
2013-072), the Arkansas Supreme Court requires some attempt at explaining to
voters how a proposed constitutional amendment would affect current law:

[T]he elector, in voting upon a constitutional amendment, is simply
making a choice between the retention of the existing law and the
substitution of something new. It is the function of the ballot title to
provide information concerning the choice that he is called upon to
make. Hence the adequacy of the title is directly related to the degree
to which it enlightens the voter with reference to the changes that he
is given the opportunity of approving.’

You have made no attempt to describe to the voter how your proposal would
change existing constitutional and statutory law. Rather, you have simply quoted a
gencral-repeal clause that is contained in the proposal’s text. The precise manner
in which you acknowledge your proposal’s effects on existing law is a matter for
you to determine and submit to this office in draft form. I am neither authorized
nor inclined to undertake this effort on your behalf. While I can modify a proposed
ballot title to render it a more accurate summary of the measure, I am not
authorized to simply craft, out of whole cloth, a ballot title that amounts to a
completely independent product. The current ballot title is wholly deficient in its
attempt to summarize for the voter what impact the proposal would have on
current law.

In addition, I am unable to certify a ballot title because of some ambiguities in
your proposal’s text. Section 2 of your proposal states: “No member of the clergy
or religious organization shall be required to provide services, facilities or goods
relating to the solemnization of marriage. The refusal to do so shall not create any
civil claim or cause of action.” This section contains two ambiguities.

First, it is not clear what you mean by “[t]he refusal to do so....” This clause
clearly intends to refer to something in the prior sentence. Yet the prior sentence
speaks in terms of what clergy and religious organizations cannot be required to

'° Bradley v. Hall, 220 Ark. 925, 927, 251 S.W.2d 470 (1952).

Jennifer Pierce
Opinion No, 2013-111
Page 5

do. Putting these two together generates an ambiguity because it is not clear what
it means to “refuse to” “not be required to provide” certain things. Without
clarification on this score, I am unable to summarize your proposal in a ballot title.

Second, the final clause of section two refers to “any civil claim or cause of
action.” It is not clear whether you intend these two terms to be synonymous or to
refer to distinct legal actions. Without clarification on this score, I am unable to
summarize your proposal in a ballot title.

Finally, I should note that, though I am not rejecting your proposal at this stage
due to the wording of its popular name, I believe some consideration should be
given to whether the latter’s terminology mects the test of impartiality that the
Arkansas Supreme Court has imposed in the context of ballot measures.'°

My office, in the certification of ballot titles and popular names, does not concern
itself with 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 A.C.A. § 7-9-107 and my duty is to the electorate. I
am not your counsel in this matter and cannot advise you as to the substance of
your proposal.

My statutory duty, under these circumstances, is to reject your proposed ballot
title, for the foregoing reasons, and to instruct you to “redesign” the proposed
measure and ballot title. You may, after addressing the matters discussed above,
resubmit your proposed amendment, along with a proposed popular name and
ballot title, at your convenience. I anticipate, as noted above, that some changes or
additions to your submitted popular name and ballot title may be necessary. I will
be pleased to perform my statutory duties in this regard in a timely manner after
resubmission.

Sincere]

Attorney General
DM/cyh

Enclosure

6 See, e.g., Op. Att’y Gen. 2012-028.

POPULAR NAME

The Arkansas Marriage Equality Amendment

BALLOT TITLE

AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO PROVIDE THAT MARRIAGE
CONSISTS OF THE UNION BETWEEN TWO PERSONS REGARDLESS OF GENDER;
PROVIDING THAT NO MEMBER OF THE CLERGY OR RELIGIOUS ORGANIZATION SHALL BE
REQUIRED TO PROVIDE SERVICES, FACILITIES OR GOODS RELATING TO THE
SOLEMNIZATION OF MARRIAGE AND THE REFUSUAL TO DO SO SHALL NOT CREATE ANY
CIVIL CLAIM OR CAUSE OF ACTION; PROVIDING THAT ALL LAWS AND CONSTITUTIONAL
PROVISIONS WHICH CONFLICT WITH THIS AMENDMENT ARE HEREBY REPEALED TO
THE EXTENT THAT THEY CONFLICT WITH THIS AMENDMENT

SECTION ONE. Marriage consists of the union between two persons regardless of
gender.
SECTION TWO. No member of the clergy or religious organization shall be required to

provide services, facilities or goods relating to the solemnization of
marriage. The refusal to do so shall not create any civil claim or cause

of action.

SECTION THREE. All laws and constitutional provisions which conflict with this
amendment are hereby repealed to the extent that they conflict with

this amendment.