Why did the Arkansas AG reject the 'Ban the Prohibition of Cannabis' ballot title?

Plain-English summary

Robert Reed of Arkansans for Medical Cannabis submitted a proposed constitutional amendment called "Ban the Prohibition of Cannabis" with a corresponding ballot title. The submission was a revised version of measures the AG's office had previously rejected (Op. Att'y Gen. Nos. 2013-021, 2011-059, and 2011-031).

AG Dustin McDaniel rejected this version too, identifying three core textual ambiguities that prevented him from writing a fair, intelligible ballot summary:

1. Silent on whether it's a constitutional amendment. The text of Section 5 referred to "this amendment" but never said the measure would amend the Arkansas Constitution. The proponents had said so in the ballot title, but the AG was firm: "The ballot title, being no more than a summary designed to inform the voters of a measure's substance, cannot itself supplement the measure by adding substantive provisions. Any measure designed to amend the Arkansas Constitution must clearly declare as much in the text of the measure itself."

2. Internal contradiction on prohibition. Section 4 said the legislature "shall pass no law that constitutes the prohibition of the cannabis plant or its derivatives." Section 2 only barred prohibition of cannabis containing 1% or less Delta-9-THC. Section 3 expressly authorized regulation of cannabis above 1% THC, which the AG noted could include prohibition in some contexts (such as an emergency-room operating theater). The three sections could not be reconciled by reading them together.

3. Ambiguous 180-day effective date. Section 5 said the amendment "becomes effective within 180 calendar days upon approval by the voters of Arkansas." The phrase could mean either that voter approval occurred within 180 days of some unspecified earlier event, or that the measure took effect within 180 days of voter approval. It was also unclear whether the legislative bar in Section 4 took immediate effect, and whether the 180-day window applied to Section 1's repeal of existing prohibition laws (which read as immediate: "are hereby repealed").

The AG's role in ballot-title certification is to ensure voters can understand what they are voting on; when the underlying measure has textual ambiguities, the AG cannot rewrite the text into a coherent ballot title.

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. Arkansas voters subsequently approved Issue 6 in 2016, the Arkansas Medical Marijuana Amendment.

Common questions

Why does a constitutional amendment have to say it amends the constitution?
The AG treats this as a basic textual requirement: the measure itself, not the ballot title or the popular name, has to contain the amendment-making operative language. Otherwise voters could approve text that, on its face, does not actually amend anything. The ballot title cannot patch this gap by asserting what the measure does.

What makes a measure "internally inconsistent"?
When two sections of the same measure pull in different directions, a voter reading the text cannot know which one controls. Section 4 in this measure forbid any cannabis prohibition; Section 2 expressly limited the ban to low-THC cannabis; Section 3 authorized regulation of high-THC cannabis that could amount to prohibition in some settings. The AG cannot write a single coherent ballot title that captures all three.

Can the AG fix ambiguities by rewriting the title?
The AG's authority under A.C.A. § 7-9-107(b) lets him substitute a more suitable title, but only if he can do so accurately. Where the underlying text is ambiguous, no substitute title can be fair, so rejection is the only option.

What did Reed need to do to resubmit successfully?
Per the AG: revise the measure text to declare it a constitutional amendment, resolve the prohibition-versus-regulation conflict among Sections 2, 3, and 4, and clarify the timing of the effective date and how it interacts with the immediate-repeal language in Section 1.

Is there a five-minute limit on ballot titles?
A.C.A. § 7-5-522 limits the time a voter may spend in the voting booth to five minutes when others are waiting. The AG cites this as a practical constraint on ballot-title length: titles must be brief and concise even while being fair and complete.

Background and statutory framework

A.C.A. § 7-9-107 governs the AG's review of proposed initiative and referendum measures. The AG must certify or substitute a popular name and ballot title before petitions are circulated. Rejection is the right outcome when the underlying measure has ambiguities that cannot be summarized fairly.

The Arkansas Supreme Court doctrine the AG follows is well-developed:

• The ballot title must give voters a "fair understanding of the issues presented" (Becker v. Riviere).
• "Essential facts which would give the voter serious ground for reflection" must be disclosed (Bailey v. McCuen).
• The title must be "free from any misleading tendency, whether by amplification, omission, or fallacy" (Bailey).
• It must convey "an intelligible idea of the scope and significance of a proposed change in the law" (Christian Civic Action Committee v. McCuen).
• It must be "honest and impartial" (Becker v. McCuen).

The AG also follows the precedent that he does not review the merits or constitutionality of a proposed measure during ballot-title review, unless the measure is "clearly contrary to law" (Kurrus v. Priest).

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (ballot title certification)
• A.C.A. § 7-9-107(b) (AG authority to substitute or reject)
• A.C.A. § 7-5-522 (five-minute voting booth limit)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (constitutionality not reviewed)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts; free from misleading tendency)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (fair understanding)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (intelligible idea)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950) (popular name standards)
• Op. Att'y Gen. Nos. 2013-021, 2011-059, 2011-031 (prior cannabis ballot title submissions by same committee)

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. 2014-014

February 19, 2014

Robert L. Reed, Chairman

Arkansans for Medical Cannabis
Ballot Question Committee

Post Office Box 111

Dennard, Arkansas 72629

Dear Mr. Reed:

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 initiated act. You
previously submitted similar measures, which this office rejected. See Op. Att’y
Gen. Nos. 2013-021, 2011-059 and 2011-031. You have made changes in the text
of your proposal since your last submission and have now submitted the following
proposed popular name and ballot title for my certification:

Popular Name

BAN THE PROHIBITION OF CANNABIS

Ballot Title

Amend the Constitution of Arkansas to repeal all laws prohibiting
the production, distribution, sale and use of the cannabis plant and
products thereof. The Arkansas General Assembly shall pass no law
prohibiting or limiting the production, distribution, sale, possession
or use of the cannabis plant and its derivatives containing one
percent (1%) or less of Delta-9-tetrahydrocannabinol (Delta-9-THC).
The Arkansas General Assembly may, by its authority, legislate such
laws as needed to regulate the production, distribution, sale,

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/

Robert L. Reed, Chairman

Arkansans for Medical Cannabis (BQC)
Opinion No. 2014-014

Page 2

possession or use of the cannabis plant and its derivatives containing
more than one percent (1%) of Delta-9-tetrahydrocannabinol (Delta-
9-THC). Preemptive federal law will remain in effect unless altered
by congress. This amendment becomes effective within 180
calendar days upon approval by the voters of the state of Arkansas.

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, following
Arkansas Supreme Court precedent, this office will not address the
constitutionality of proposed measures in the context of a ballot title review unless
the measure is “clearly contrary to law.”’ Consequently, this review has been
‘limited to a determination, pursuant to the guidelines that have been set forth by
the Arkansas Supreme Court, discussed below, of whether the proposed popular
name and ballot title accurately and impartially summarize the provisions of your
proposed amendment or act.

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.

' Kurrus y. 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).

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

Robert L. Reed, Chairman

Arkansans for Medical Cannabis (BQC)
Opinion No. 2014-014

Page 3

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.'° A ballot title
must convey an intelligible idea of the scope and significance of a proposed
change in the law.'! The ballot title must be intelligible, honest, and impartial. '”

• 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 $.W.3d 771, 776 (2004).

° Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
7 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.

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

Robert L. Reed, Chairman

Arkansans for Medical Cannabis (BQC)
Opinion No. 2014-014

Page 4

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 ambiguities in the fext 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 ambiguities. 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).

The text of your measure in its entirety provides as follows:
Section |

All Arkansas laws prohibiting the production, distribution,
possession, sale or use of cannabis and products derived from the
cannabis plant are hereby repealed.

Section 2

The Arkansas General Assembly shall pass no law prohibiting or
limiting the production, distribution, sale, possession, or use of the
cannabis plant and its derivatives containing one percent (1%) or
less of Delta-9-tetrahydrocannabinol (Delta-9-THC).

Section 3

The Arkansas General Assembly may, by its authority, legislate such
laws as needed to regulate the production, distribution, sale,
possession or use of the cannabis plant and its derivatives containing
greater than one percent (1%) of Delta-9-tetrahydrocannabinol
(Delta-9-THC).

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

Robert L. Reed, Chairman
Arkansans for Medical Cannabis (BQC)
Opinion No. 2014-014

Page 5

Section 4

The Arkansas General Assembly shall pass no law that constitutes
the prohibition of the cannabis plant or its derivatives.

Section 5

This amendment becomes effective within 180 calendar days upon
approval by the voters of Arkansas.

This measure contains the following ambiguities:

1.

The text of your measure fails to specify that the voter approval
contemplated in Section 5 would have the effect of amending the
Arkansas Constitution. Although you indicate in your ballot title
that the measure, if adopted, would amend the constitution, you
fail to include this provision in the measure itself, which merely
contains a cryptic passing reference in Section 5 to “[tJhis
amendment.” The ballot title, being no more than a summary
designed to inform the voters of a measure’s substance, cannot
itself supplement the measure by adding substantive provisions.
Any measure designed to amend the Arkansas Constitution must
clearly declare as much in the text of the measure itself. Without
textual clarification on this score, I am unable to summarize your
proposal in a ballot title.

Section 4 of your measure directs that the legislature “pass no
law that constitutes the prohibition of the cannabis plant or its
derivatives.” Section 2, however, bars the legislature from
prohibiting only “the cannabis plant and its derivatives”
containing 1% or less of Delta-9-THC. Section 3 expressly
authorizes legislation “regulat[ing]” cannabis and its derivatives
containing Delta-9-THC in concentrations exceeding 1%. Such
regulation could presumably entail “prohibition” in some
contexts (say, an emergency-room operating theater). Section 4

Robert L. Reed, Chairman
Arkansans for Medical Cannabis (BQC)
Opinion No. 2014-014

Page 6

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

consequently appears to contradict other sections of your
measure, rendering it impossible for me to summarize your
proposal in a ballot title.

. Section 5 of your measure provides that your proposal will

“become effective within 180 calendar days upon approval by the
voters of Arkansas.” The quoted phrase is ambiguous in that it is
unclear whether (1) the recited “approval by the voters” would
occur “within 180 calendar days” of some unspecified event; or
(2) the measure would take effect upon the occurrence of some
unspecified event “within 180 calendar days” of “approval by the
voters.” Specifically with respect to the latter possibility, it is
unclear whether at least the bar set forth in Section 4 against
legislation prohibiting “the cannabis plant or its derivatives”
would take immediate effect. It is further unclear whether the
possible 180-day delay in effect applies to the repeal of existing
laws relating to cannabis, which Section | of the measure, in
terms that suggest immediacy, declares “are hereby repealed.”
Although the 180-day window may be intended only to impose a
deadline for the implementation of a regulatory scheme of the
sort referenced in Section 3, your measure at no point declares as
much. Without clarification regarding these issues, I am unable
to summarize your proposal in a ballot title.

points 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.
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

Robert L. Reed, Chairman

Arkansans for Medical Cannabis (BQC)
Opinion No. 2014-014

Page 7

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 MCDAN
Attorney General

DM/cyh

Enclosures

Popular Name

BAN THE PROHIBITION OF CANNABIS

Ballot Title

Amend the Constitution of Arkansas to repeal all laws prohibiting the

production, distribution, sale and use of the cannabis plant and products thereof.
The Arkansas General Assembly shall pass no law prohibiting or limiting the
production, distribution, sale, possession or use of the cannabis plant and its
derivatives containing one percent (1%) or less of Delta-9-

tetrahydrocannabinol (Delta-9-THC). The Arkansas General Assembly may, by its
authority, legislate such laws as needed to regulate the production,
distribution, sale, possession or use of the cannabis plant and its derivatives
containing more than one percent (1%) of Delta-9-tetrahydrocannabinol (Delta-9-THC) .
Preemptive federal law will remain in effect unless altered by congress. This
amendment becomes effective within 180 calendar days upon approval by the voters
of the state of Arkansas.

Text

Section 1

All Arkansas laws prohibiting the production, distribution, possession, sale or use
of cannabis and products derived from the cannabis plant are hereby

repealed.

Section 2

The Arkansas General Assembly shall pass no law prohibiting or limiting the
production, distribution, sale, possession or use of the cannabis plant and its
derivatives containing one percent (1%) or less of Delta-9-

tetrahydrocannabinol (Delta-9-THC).

Section 3

The Arkansas General Assembly may, by its authority, legislate such laws as needed
to regulate the production, distribution, sale, possession or use of the cannabis
plant and its derivatives containing greater than one percent (1%) of Delta-9-
tetrahydrocannabinol (Delta-9-THC).

Section 4
The Arkansas General Assembly shall pass no law that constitutes the prohibition of
the cannabis plant or its derivatives.

Section 5
This amendment becomes effective within 180 calendar days upon approval by the
voters of Arkansas.