What did the Arkansas AG do with the Arkansas Hemp and Marijuana Amendment ballot title in 2014?

Plain-English summary

Mary L. Berry submitted a proposed constitutional amendment titled "The Arkansas Hemp and Marijuana Amendment." It would have legalized cultivation, production, distribution, sale, purchase, possession, and use of the cannabis plant across the state effective April 20, 2017, defined "hemp" and "marijuana" by Delta-9-THC concentration, allowed regulation but not prohibition of personal/industrial/commercial activities, capped marijuana license fees at $250/year, limited grows to 36 plants per person, and capped the state excise tax at 5%.

The AG's job under A.C.A. § 7-9-107 is to certify the popular name and ballot title of an initiative before signatures are gathered. The AG can certify as submitted, substitute a more suitable version, or reject the petition for misleading text. Certification does not reflect a view on the merits of the proposal; it is solely a quality check on whether voters will get an honest, intelligible, and impartial preview of the change in the law.

AG Dustin McDaniel:

• Popular name: certified as submitted ("THE ARKANSAS HEMP AND MARIJUANA AMENDMENT"). The popular name is a useful legislative shorthand; it need not contain detail, but must not mislead or be partisan.
• Ballot title: substituted. The substitute kept the proposal's substance but tightened the language and, critically, added a final sentence: "Voters should note that the listed activities with respect to the cannabis plant are unlawful under federal law and that the amendment can have no effect on federal law." That federal-supremacy notice is an "essential fact" voters needed in order to make an informed decision; without it the title risked misleading by omission.

The AG also flagged a procedural point: the proposal was submitted by email both in the body and as an attachment. The AG did not compare the two for identity; certification covered only the email body, not the attachment if it differed.

This opinion was issued November 3, 2014, the day before the November 4, 2014 general election. The amendment was not on the November 2014 ballot (those were already set). The certification controlled circulation of petitions going forward.

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.

Common questions

Did the AG approve the amendment itself?
No. Certification is not approval of the policy. It is a check on whether the popular name and ballot title fairly and intelligibly summarize the proposal so voters can decide.

Why was the federal-law disclaimer added to the ballot title?
The Arkansas Supreme Court has held that if information omitted from a ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed" (Bailey v. McCuen). Federal preemption of state cannabis legalization is one of those essential facts; voters cannot fairly weigh a state amendment without knowing that federal prohibition continues regardless.

What standards does an Arkansas ballot title have to meet?
Per the cases listed in the opinion, a ballot title must be honest, impartial, free from misleading tendencies (whether by amplification, omission, or fallacy), brief and concise (because of the five-minute voting-booth limit in A.C.A. § 7-5-522), and convey an intelligible idea of the change in the law. It is not required to be perfect or to cover every possible legal argument.

What happens after certification?
The sponsor circulates the petition with instructions to canvassers and signers as required by A.C.A. § 7-9-108. To get a constitutional amendment on the ballot, the sponsor needs signatures equal to 10% of legal voters (8% for proposed legislation, 6% for referendum) under Amendment 7 to the Arkansas Constitution.

Did this measure actually make the ballot?
The opinion does not address that. Reaching the ballot requires the sponsor to collect, verify, and submit signatures by deadlines set elsewhere in election law. The AG's certification is only the first procedural gate.

Background and statutory framework

Amendment 7 of the Arkansas Constitution reserves to the people the power of initiative and referendum. A.C.A. § 7-9-107 requires the Attorney General to certify the popular name and ballot title before petitions are circulated for signature. Under that section, the AG may certify as submitted, substitute a more suitable version, or reject the entire petition if the proposal's text is internally inconsistent or sufficiently misleading.

The opinion catalogs the Supreme Court's ballot-title doctrine:

• The popular name need not contain detail but must not be misleading or partisan (Pafford v. Hall).
• The ballot title must give voters a fair understanding of the issues (Becker v. Riviere).
• Essential facts that would give a voter "serious ground for reflection" must be disclosed (Bailey v. McCuen).
• The title must be brief (because of A.C.A. § 7-5-522's five-minute booth limit) and need not be perfect (Bailey v. McCuen).
• Internal inconsistencies in the proposed amendment itself defeat any title (Roberts v. Priest).
• The AG does not assess constitutional infirmities unless the measure is "clearly contrary to law" (Kurrus v. Priest, Donovan v. Priest, Plugge v. McCuen).

The federal-supremacy concern that drove the title substitution does not appear in the cases the AG cites, but it falls within the Bailey "essential facts" rule: a voter casting a yes vote could reasonably believe Arkansas legalization would actually make cannabis lawful for them. Without the federal-law caveat, the title would have created that misleading impression.

The opinion notes that two earlier versions of similar measures (Op. Att'y Gen. 2014-113 and 2014-105) were rejected for textual ambiguity. This was the third attempt by the same sponsor with revised text.

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (AG certification of popular name and ballot title)
• A.C.A. § 7-9-107(b) (ballot title brevity requirement)
• A.C.A. § 7-9-108 (instructions to canvassers and signers)
• A.C.A. § 7-5-522 (five-minute voting booth limit)
• Ark. Const. Amend. 7 (initiative and referendum)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts must be disclosed; brevity tradeoff)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (fair understanding of the issues)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies defeat title)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (AG does not address merits)
• Op. Att'y Gen. 2014-113, 2014-105 (prior rejected versions)

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. 2014-119

November 3, 2014

Mary L. Berry, Sponsor
Post Office Box 511
Summit, Arkansas 72677

Dear Ms. Berry:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2013), of the popular name and ballot title for a proposed constitutional amendment. Two similar measures were rejected due to ambiguities in the text of the proposal. See Op. Att'y Gen. No. 2014-113 and 2014-105. You have made changes to the text of the measure and submitted your proposed popular name and ballot title, 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, 2017, that the cultivation, production, 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; that, for purposes of this amendment "hemp" is defined as any part of the cannabis plant (genus cannabis), living or not, containing one percent or less, 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); that the listed activities relating to hemp devoted to personal, industrial, or commercial use may be regulated, but not prohibited, subject to the following condition; that the quantity and size of plants cultivated and the products produced shall not be limited or prohibited; that the listed activities relating to marijuana devoted to personal, industrial, or commercial use by any person twenty-one (21) years of age or older is lawful in this state and may be regulated, but not prohibited, subject to the following conditions; that the cost of a license that shall be required by the state to authorize and regulate the cultivation, production, distribution, and the sale of marijuana and products containing marijuana shall not exceed two-hundred and fifty dollars ($250.00) per license per year, and any person twenty-one (21) years of age and older shall qualify to obtain such license, and there shall be no limit to the number of license issued in this state; that the quantity of plants cultivated shall be limited to thirty-six growing plants per qualified person, but the size of plants cultivated or the products produced shall not be limited or prohibited; that the state excise tax imposed upon the sale of marijuana and products containing marijuana shall not exceed five percent; that the use of marijuana and products containing marijuana shall not be prohibited to any person under twenty-one (21) years of age whose physician has prescribed it. All laws 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 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.

Applying the above precepts, it is my conclusion that the popular name is sufficient as proposed and that a more suitable, complete, and correct ballot title should be substituted for that proposed. The following is hereby certified in order to ensure that, when construed together, the popular name and ballot title accurately set forth the purpose of the proposed amendment:

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, 2017, that the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus cannabis) and all products derived from the cannabis plant are lawful within the entire geographic area of every county of this State; that for purposes of the amendment "hemp" means any part of the cannabis plant, living or not, containing one percent or less, by dry weight, Delta-9-Tetrahydrocannabinol (Delta-9-THC), and "marijuana" means any part of the cannabis plant, living or not, containing more than one percent, by dry weight, Delta-9-THC; that the listed activities with respect to hemp for personal, industrial, or commercial use may be regulated but not prohibited, provided that the quantity and size of plants cultivated and the products produced shall not be limited or prohibited; that the listed activities with respect to marijuana for personal, industrial, or commercial use by any person 21 years of age or older are lawful in this State and may be regulated but not prohibited, provided that (1)(a) the cost of a license that shall be required by the State to authorize and regulate the cultivation, production, distribution, and sale of marijuana and products containing marijuana shall not exceed $250.00 per year; (b) any person 21 years of age or older shall qualify to obtain such license; and (c) there shall be no limit to the number of licenses issued in this State; (2) the quantity of plants cultivated shall be limited to 36 growing plants per qualified person, but the size of plants cultivated and the products produced shall not be limited or prohibited; (3) the State excise tax imposed on the sale of marijuana and products containing marijuana shall not exceed five percent; and (4) the use of marijuana and products containing marijuana shall not be prohibited to any person under 21 years of age whose physician has prescribed it; and that all laws that conflict with the amendment are repealed to the extent that they conflict with the amendment.

Voters should note that the listed activities with respect to the cannabis plant are unlawful under federal law and that the amendment can have no effect on federal law.

You submitted the proposal by email. The proposal was set forth in full in the body of the email itself, and again in an attachment to the email. I did not examine the proposal set forth in the attachment to determine if it is identical to the proposal set forth in the body of the email. My certification accordingly is limited to the proposal as set forth in the body of the email, and may not be relied upon with respect to the proposal set forth in the attachment if the latter differs from the former in any respect.

Pursuant to A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Constitution and of the penalties imposed for violations of this act. Enclosed herewith, over the signature of the Attorney General, are instructions that should be incorporated in your petition prior to circulation.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/cyh

Enclosures