Why did the Arkansas AG reject the 2013 Marriage Equality Amendment ballot title?

Arkansas AG Opinion 2013-112: Marriage Ballot Title

Plain-English summary

Opinion 2013-112 rejected the popular name and ballot title submitted for a proposed Arkansas constitutional amendment recognizing marriage as the union of two people regardless of sex. The rejection concerned the adequacy and clarity of the submitted ballot language, not the proposal's merits.

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

The ballot title did not tell voters how the proposal would alter existing constitutional and statutory law. The AG also found unclear wording in the proposal itself, including whether it purported to recognize an existing right or create a new right and what protections its religious-freedom provision would establish.

"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/

"I cannot begin to certify a ballot title for your proposed amendment in the face of the ambiguities noted above. You must remedy these confusing and ambiguous points before I can perform my statutory duty."
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

Did the AG decide whether same-sex marriage should be legal in Arkansas?

No. The opinion said certification or rejection did not reflect the AG's view of the proposal's merits and that the office had no authority to consider those merits in this review.

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

What was missing from the ballot title?

It did not explain the proposal's effect on existing law. Instead, it repeated a general-repeal clause stating that contrary laws and constitutional amendments would be null and void.

"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 general-repeal clause that is contained in the proposal’s text."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

What ambiguity did the AG find in the marriage provision?

The phrase stating that the constitution would "recognize that a marriage is legally recognized" did not make clear whether the proposal treated same-sex marriage as a pre-existing right or created a new right.

"The doubling of the term ‘recognize’ renders this provision unclear in the same way that Section 1 was previously unclear."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

What problem did the AG find in the religious-freedom provision?

The wording about clergy or religious organizations not being required to "provide obligations" was unclear, and the later phrase "to do so" had no clear reference.

"It is not clear what is meant by the phrase ‘by not requiring [them] to provide obligations.’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"The phrase ‘to do so’ has no clear referent in the prior sentence."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Could the sponsors submit a revised measure?

Yes. The opinion instructed them to redesign the measure and ballot title and allowed resubmission after they addressed the stated problems.

"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 Attorney General to review proposed initiative and referendum popular names and ballot titles before petition circulation. The office could substitute suitable language when possible or reject a sufficiently misleading submission.

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

The review asked whether the language accurately and impartially summarized the proposal. The opinion described the governing purpose as giving voters an honest, intelligible, and fair statement of the measure.

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

Holding

The AG rejected the proposed ballot title and instructed the sponsors to redesign both the measure and the title before resubmission.

"My statutory duty, under these circumstances, is to reject your proposed ballot title (for the foregoing reasons) and 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 2013-112:

• "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 2013-112:

• "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
• "U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994)" 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 McDANIEL

Opinion No. 2013-112

September 19, 2013

Jack M. Weir, [II
Christopher Jacks

Post Office Box 13963
Maumelle, Arkansas 72113

Dear Messrs. Weir and Jacks:
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 recognize that a
marriage is legally recognized as a union of two people regardless of
whether the parties to the marriage are of the same or different sex.
The amendment protects religious freedoms by not requiring a
member of the clergy or religious organization to provide obligations
or privileges relating to the solemnization of marriage and that the
refusal to do so shall not create any civil claim or cause of action.
Any laws or constitutional amendments contrary to this amendment
shall be null and void upon passage of the 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

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/

Jack M. Weir, III & Christopher Jacks
Opinion No. 2013-112
Page 2

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
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

' 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 vy, McCuen, 310 Ark. 654, 841 S.W.2d 139
(1992).

• 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).

Jack M. Weir, III & Christopher Jacks
Opinion No. 2013-112
Page 3

proposal.’ The popular name is to be considered together with the ballot title in
determining the ballot title’s sufficiency.

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 impartial,'' 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

‘ E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore vy. Hall, 229
Ark, 411, 316 S.W.2d 207 (1958).

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

° Becker v. 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 946-47.

'° Td. at 284, 884 S.W.2d at 942.

"' Becker v. McCuen, 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).

Jack M. Weir, III & Christopher Jacks
Opinion No. 2013-112
Page 4

“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.

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 your prior submission (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
general-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.

'4 Td.

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

Jack M. Weir, III & Christopher Jacks
Opinion No. 2013-112
Page 5

In addition to the foregoing deficiencies, I am also unable to certify your measure
because ambiguities in its text prevent me from assessing whether the ballot tittle
fairly and correctly summarizes your measure.

Ambiguities in Section 1 of your measure

In your prior submission, Section 1 stated: “The right to marry shall not be
abridged or denied on account of sex or sexual orientation.” As I noted in Opinion
No. 2013-072, this provision gave rise to several ambiguities, the chief of which
was whether, by this language, you intended “(a) to recognize what you take to be
a pre-existing right to same-sex marriage in Arkansas or (b) to create a right to
same-sex marriage in Arkansas.” I went on to explain that the “possible
assumption that such a right [exists] under current law is questionable” due to the
lack of any federal court ruling in our jurisdiction to that effect.

In your current submission, you have modified Section 1 so that it now states: “An
Amendment to the Arkansas Constitution to recognize that a marriage is legally
recognized as a union of two people regardless of whether the parties to the
marriage are of the same or diffcrent sex.” This Section contains several
ambiguities that prevent me from summarizing your measure in a ballot title.

e The primary ambiguity, which I noted in the previous submission and
referred to above, remains. Section 1 now proposes to amend the Arkansas
Constitution “to recognize that a marriage is legally recognized as a union
of two people regardless of...sex.” (Emphasis added.) The doubling of the
term “recognize” renders this provision unclear in the same way that
Section 1 was previously unclear. Under current Arkansas law, a marriage
between two people of the same sex is not “legally recognized.” Hence, as I
noted in response to your first submission, your proposal remains unclear
regarding whether it intends ‘“(a) to recognize what you take to be a pre-
existing right to same-sex marriage in Arkansas or (5) to create a right to
same-sex marriage in Arkansas.” This foundational ambiguity also
manifests itself in the problem, which was noted above, that the ballot title
fails to give the voter any account of how the current law will be changed.

e Section 1 is also ambiguous because it lacks a verb, which renders it a
sentence fragment. I realize you may intend the prefatory clause “Be it
enacted by the people of the State of Arkansas” to supply Section 1’s verb.
But an enacting clause is not required for a proposed state constitutional

Jack M. Weir, III & Christopher Jacks
Opinion No. 2013-112
Page 6

amendment.’ Indeed, the inclusion of an enactment clause may be
confusing to the voters.’”

Ambiguities in Section 2 of your measure

Section 2 of your proposed amendments states: “This amendment protects
religious freedoms by not requiring a member of the clergy or religious
organization to provide obligations or privileges relating to the solemnization of
marriage and that the refusal to do so shall not create any civil claim or cause or
action.” This Section contains the following ambiguities, which prevent me from
summarizing your measure in a ballot title.

e Section 2 says it “protects religious freedoms” of clergy and religious
organizations “by not requiring [them] to provide obligations or privileges
related to the solemnization or marriage....” It is not clear what is meant by
the phrase “by not requiring [them] to provide obligations.” While an
“obligation” can be created, met, or provided for, it is not the sort of thing
that can be “provided,” which essentially means to “make available;
furnish.”"®

e The ambiguity contained in the phrase “by not requiring [them] to provide
obligations” is part of the reason that the phrase in the next sentence—“‘to
do so”—is syntactically problematic. The phrase “to do so” has no clear
referent in the prior sentence.

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 meets the test of impartiality that the
Arkansas Supreme Court has imposed in the context of ballot measures.”

I cannot begin to certify a ballot title for your proposed amendment in the face of
the ambiguities noted above. You must remedy these confusing and ambiguous
points before I can perform my statutory duty.

© See U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994).
"7 See Op. Att’y Gen. 2012-034.

'8 The American Heritage Dictionary, “provide,” http://www.ahdictionary.com/word/search.html
?q=provide (last visited, Sept. 16, 2013).

"" See, e.g., Op. Att’y Gen. 2012-028.

Jack M. Weir, III & Christopher Jacks
Opinion No. 2013-112
Page 7

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 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.

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM/cyh

Enclosure

(Popular Name)
The Arkansas Marriage Equality Amendment

(Ballot Title)

AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO RECOGNIZE THAT A MARRIAGE
IS LEGALLY RECOGNIZED AS A UNION OF TWO PEOPLE REGARDLESS OF WHETHER THE
PARTIES TO THE MARRIAGE ARE OF THE SAME OR DIFFERENT SEX. THE AMENDMENT
PROTECTS RELIGIOUS FREEDOMS BY NOT REQUIRING A MEMBER OF THE CLERGY OR
RELIGIOUS ORGANIZATION TO PROVIDE OBLIGATIONS OR PRIVILEGES RELATING TO
THE SOLEMNIZATION OF MARRIAGE AND THAT THE REFUSAL TO DO SO SHALL NOT
CREATE ANY CIVIL CLAIM OR CAUSE OF ACTION. ANY LAWS OR CONSTITUTIONAL
AMENDMENTS CONTRARY TO THIS AMENDMENT SHALL BE NULL AND VOID UPON
PASSAGE OF THE AMENDMENT.

(Proposed Constitutional Amendment)
Be it enacted by the people of the State of Arkansas:

SECTION 1. An Amendment to the Arkansas Constitution to recognize that a marriage is
legally recognized as a union of two people regardless of whether the parties to the
marriage are of the same or different sex.

SECTION 2. This amendment protects religious freedoms by not requiring a member of
the clergy or religious organization to provide obligations or privileges relating to the
solemnization of marriage and that the refusal to do so shall not create any civil claim or

cause of action.

SECTION 3. Any laws or constitutional amendments contrary to this amendment shall be
nuil and void upon passage of the Amendment.