What did the Arkansas AG say about the first marijuana legalization ballot title submitted in 2014?

Plain-English summary

Mary Lou Berry submitted "The Arkansas Hemp and Marijuana Amendment" for AG certification. This was the first version. The AG rejected it for a single critical ambiguity in the text:

The proposal defined "hemp" as cannabis containing less than 1% THC and "marijuana" as cannabis containing greater than 1% THC. Cannabis with exactly 1% THC fell into neither category. The AG couldn't write a ballot title because the proposal didn't tell voters what would happen to that segment of the cannabis spectrum.

The AG also identified, without making them grounds for rejection, several drafting problems that made the proposal "less than suitable in its current form for inclusion in the Arkansas Constitution":

• Inconsistent capitalization (one defined term capitalized, the other not)
• Quotation marks around already-defined terms
• "Cannabis . . . remains illegal under federal law" when in fact it's certain acts by people, not the plant itself, that are illegal
• "No limit to the amount of license" when "amount" doesn't apply to countable things
• Punctuation errors like "manufacturing, shall not be limited"

The AG suggested Berry "redesign" the measure. She came back with a revised version. That second version was also rejected (in Op. 2014-113) for different ambiguities.

Currency note

This opinion was issued in 2014. 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.

Background and statutory framework

A.C.A. § 7-9-107 requires the AG to certify the popular name and ballot title of every proposed initiative or referred constitutional amendment before petition circulation. The AG has three options:

1. Certify what the sponsor submitted.
2. Substitute and certify a more suitable and correct version (allowed when the AG can fix the problem).
3. Reject the entire submission if the ballot title is sufficiently misleading, or if the underlying text is too ambiguous to permit honest summary.

Neither certification nor rejection reflects the AG's view on the merits. The role is purely procedural.

The substantive standard the Arkansas Supreme Court applies:

• The ballot title must give voters a fair understanding of the issues (Becker v. Riviere).
• Essential facts that would give voters serious ground for reflection must be disclosed (Bailey v. McCuen).
• The title must be brief and concise to respect A.C.A. § 7-5-522's five-minute booth limit.
• The title must be honest, impartial, free from misleading tendency, and convey an intelligible idea of the scope and significance of the proposed change (Christian Civic Action Committee v. McCuen).

Critically, under Roberts v. Priest (2000), a proposed amendment can be rejected when the text itself contributes to confusion between the popular name, ballot title, and measure. Where the effects of the proposal are unclear, the AG cannot perform his duty without clarification.

Common questions

How important was the exactly-1%-THC ambiguity?

Critical. The federal Farm Bill definition of hemp uses 0.3% THC as the threshold, and many states have followed that. A 1% threshold was already unusual. Combining that unusual threshold with a hard "less than"/"greater than" framing created a sliver of cannabis with no legal status. A grower or possessor with exactly 1% THC product would not know whether they were operating under the hemp rules or the marijuana rules, and the AG could not write a ballot title that explained the gap to voters because the gap was the gap.

Could the AG have just substituted a better-drafted ballot title?

No. The problem was in the underlying text, not the ballot title. The AG can substitute a ballot title when the title is the problem but the measure is clear. He cannot rewrite the measure itself. A.C.A. § 7-9-107(b)'s substitution power is limited.

What was different in Op. 2014-113?

The second submission cured the THC threshold problem (by switching to "less than" and "greater than" framings that no longer created a gap). It introduced new ambiguities: subject-verb agreement issues, unclear scope of "the manufacturing," ambiguous use of "any specific license," and the strange phrase "issued in this state by the General Assembly" suggesting only legislative licensing. The AG rejected the second version for those new reasons.

Why didn't the AG go further and reject for the drafting errors he noted?

He distinguished between internal inconsistencies that would inevitably lead to confusion (which require rejection under Roberts) and drafting weaknesses that make the proposal unsuitable (which the AG flags but doesn't reject for). The capitalization, punctuation, and stylistic issues were in the second category. The THC gap was in the first.

Could Ms. Berry have litigated the rejection?

Yes. The Arkansas Supreme Court has original jurisdiction over ballot-title sufficiency cases. A sponsor unhappy with a rejection can ask the court to overrule the AG. The AG's opinion is persuasive but not binding on the court. In practice, sponsors usually revise and resubmit rather than litigate, because the court tends to apply the same standards the AG applied.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-105
October 2, 2014

Mary L. Berry, Sponsor
117 North Washington Street
Summit, Arkansas 72677-0511

Dear Ms. Berry:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2013), of the following popular name and ballot title for a proposed constitutional amendment, as follows:

Popular Name

THE ARKANSAS HEMP AND MARIJUANA AMENDMENT

Ballot Title

An amendment proposed by the people to the Arkansas Constitution to provide, effective April 20, 2014, that the cultivation, manufacturing, distribution, sale, purchase, possession, and use of the Cannabis plant (genus cannabis) and all products derived from the Cannabis plant (genus cannabis) are lawful in every geographic area of each and every county of this state, but acknowledging that the Cannabis plant (genus cannabis) for any purpose remains illegal under federal law unless altered by congress.; [sic] that, for purposes of this amendment "hemp" is defined as any part of the Cannabis plant (genus cannabis), living or not, containing less than one percent, by dry weight, Delta-9-tetrahydrocannabinol (Delta-9-THC); that, for purposes of this amendment "Marijuana" is defined as any part of the Cannabis plant (genus cannabis), living or not, containing greater than one percent, by dry weight, Delta-9-Tetrahydrocannabinol (Delta-9-THC); [remainder of ballot title as submitted]

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 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.

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 "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, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed popular name and ballot title due to an ambiguity in the text of your proposed measure. A number of additions or changes to your ballot title are, in my view, necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguity. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

I refer to the following ambiguity:

The proposal defines "hemp" and "Marijuana" by reference to the THC content of each but fails to classify cannabis containing exactly one percent THC.

Additionally, in my view, several aspects of your proposal, while not constituting the sort of internal inconsistencies the Court described in Roberts, make it less than suitable in its current form for inclusion in the Arkansas Constitution. These include unconventional and inconsistent capitalization (e.g., of the two words defined, one is consistently capitalized, the other is not); use of quotation marks around terms already defined, which usage is unconventional; inexact usage (e.g., "Cannabis . . . remains illegal under federal law" when in fact it is not the plant itself that is "illegal," but rather certain acts by people in connection with the plant); awkward syntax (e.g., "no limit to the amount of license" when "amount" denotes the measure of a thing not subject to being counted); and incorrect punctuation (e.g., "manufacturing, shall not be limited"). The examples given are not intended to be and are not exhaustive of the proposal's shortcomings, which you should remedy if the proposal is to be resubmitted.

I cannot certify a ballot title for your proposed amendment in the face of the ambiguity noted above, which you must remedy before I can perform my statutory duty.

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

Enclosures