Why did the Arkansas AG reject the ballot title for the Arkansas Privacy Protection Act?

Plain-English summary

Raymond Redmond submitted a proposed initiated act called the "Arkansas Privacy Protection Act," asking AG Leslie Rutledge to certify the popular name and ballot title under A.C.A. § 7-9-107 so the petition could circulate for signatures.

AG Rutledge rejected the submission. Three independent problems stacked up.

First, the proposal omitted the enacting clause required by Article 5, Section 1 of the Arkansas Constitution ("Be It Enacted by the People of the State of Arkansas..."). The Arkansas Supreme Court has called this a mandatory requirement with no room for "substantial compliance," and treats a missing enacting clause as a "fatal defect" for an initiated act.

Second, the ballot title itself was a list of subjects ("bank records, breach of privacy reporting, credit records, electronic records, information contained in government databases, employment records, mailing lists, school records, social security numbers, tax records, and for other changes") without any summary of what the act would actually do. A title that does not summarize the provisions, mention how the act changes existing law, or address conflicts with federal law fails the Supreme Court's "honest and impartial" standard.

Third, the proposal's text was riddled with ambiguities, grammatical errors, and self-contradictory provisions, making it impossible to draft a substitute ballot title. The AG flagged examples: Section 5's "If any breach of privacy of any information contained by any person or entity shall be breached" (a breach of a breach), Section 9's prohibition on releasing employment records by entities that do not have access to those records (nonsensical), Section 10's prohibition on any list containing any Arkansas resident's name or phone number (would outlaw phone books and Christmas card lists), and Section 11's "available to any list" language (meaningless).

The AG also noted, in a footnote, that even if the body had been free of ambiguity, she likely would not have substituted a ballot title because the proposal did not evidence a good-faith effort to summarize itself. That is the same posture the office has taken in earlier rejections like Op. Att'y Gen. 2011-031, 2011-023, 2008-056, and 2007-316.

The sponsor was invited to redraft and resubmit.

Currency note

This opinion was issued in 2015. 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 is ballot title certification?
Before an initiated act or constitutional amendment can be circulated for signatures in Arkansas, the AG must certify that the popular name and ballot title are not misleading and accurately summarize the proposal (A.C.A. § 7-9-107). Without certification, no signatures may be collected.

Does certification mean the AG approves of the policy?
No. The opinion is explicit on this point. The AG cannot consider the merits, philosophy, or ideology of any measure. The review is procedural: does the title honestly tell voters what they are voting on?

What does a ballot title need to include?
Per the Arkansas Supreme Court: an impartial summary that gives the voter a fair understanding of the issues. Essential facts that would give a voter "serious ground for reflection" must be disclosed. The title must be brief and concise, free from misleading tendency, and convey an intelligible idea of the scope and significance of the change in law.

Why was a missing enacting clause fatal?
Article 5, Section 1 of the Arkansas Constitution says all bills initiated by the people "shall be" styled "Be It Enacted by the People of the State of Arkansas." The Supreme Court reads "shall" as mandatory, with no substantial-compliance escape hatch. An initiated act lacking the enacting clause would be subject to legal challenge, so a ballot title concealing that defect would mislead voters about whether their votes could take effect.

When does the AG decline to write a substitute ballot title?
When the proposal itself does not evidence a good-faith effort to summarize fairly, accurately, and completely. The AG cited four prior rejections (2011-031, 2011-023, 2008-056, 2007-316) following the same pattern.

Can the sponsor try again?
Yes. The AG explicitly invited Redmond to redesign the measure and ballot title and resubmit at his convenience. The AG also flagged a few of the worst ambiguities by way of example but stopped short of doing the sponsor's drafting work, and warned that later reviews could turn up additional problems even in revised drafts.

Background and statutory framework

Article 5, Section 1 of the Arkansas Constitution (originally Amendment 7) reserves to the people the power of initiative and referendum. To exercise the initiative power, sponsors draft a proposal and circulate a petition. Before circulation, A.C.A. § 7-9-107 requires AG certification of the popular name and ballot title. Subsection (b) allows the AG to substitute a "more suitable and correct" title if practical, and subsection (c) allows outright rejection where the submission is "sufficiently misleading."

The Arkansas Supreme Court has built a substantial body of doctrine on ballot title sufficiency over decades. Key requirements distilled from the case law:

• The title must be honest and impartial (Becker v. McCuen).
• It must give the voter a fair understanding of the issues (Becker v. Riviere).
• Essential facts giving "serious ground for reflection" must be disclosed (Bailey v. McCuen).
• It must be brief and concise (A.C.A. § 7-9-107(b), implicating the five-minute-per-voter rule in A.C.A. § 7-5-522).
• It need not be perfect (Bailey v. McCuen).
• It must be free from misleading tendency by amplification, omission, or fallacy (Bailey v. McCuen).
• It must convey an intelligible idea of the scope and significance of the change (Christian Civic Action Committee v. McCuen).
• If the proposal's text is internally inconsistent, no certifiable title can be written (Roberts v. Priest).

For initiated acts (not amendments), the enacting clause is constitutionally mandatory; a missing enacting clause is a "fatal defect" (Haley v. Carter; see also Mertz v. States and U.S. Term Limits v. Hill).

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (popular name and ballot title certification)
• A.C.A. § 7-9-107(b) (substitution authority)
• A.C.A. § 7-9-107(c) (rejection authority)
• A.C.A. § 7-5-522 (five-minute voting booth limit)
• Ark. Const. art. 5, § 1 (initiative power; enacting clause requirement)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies preclude certifiable title)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts disclosure standard)
• Haley v. Carter, 221 Ark. 20, 251 S.W.2d 826 (1952) (missing enacting clause is fatal defect)
• Op. Att'y Gen. 2011-031, 2011-023, 2008-056, 2007-316 (prior rejections refusing to substitute)

Source

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

Official summary

Request for certification of the popular name and ballot title of an initiated act proposed to provide privacy protections for all Arkansas citizens and entities in the areas proposed by the measure, and other purposes.

RESPONSE: Rejected. The ballot title is misleading due to wholesale omission of material required to be summarized. Ambiguities in the text make it impossible for me to substitute an adequate ballot title, but given the fundamental shortcomings of the proposed ballot title, I likely would decline to prepare a substitute ballot title. See, e.g., Ops. 2011-031, 2011-023, 2008-056, 2007-316.

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2014-142

January 14, 2015

Raymond Redmond, Sponsor
3830 Rodgers Road West
Rison, Arkansas 71665

Dear Mr. Redmond:

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 initiated act, as follows:

Popular Name: ARKANSAS PRIVACY PROTECTION ACT

Ballot Title: An act by the People of Arkansas providing privacy protections in the areas of bank records, breach of privacy reporting, credit records, electronic records, information contained in government databases, employment records, mailing lists, school records, social security numbers, tax records, and for other changes.

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, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General 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 foregoing law to your measure, I conclude that I must reject your ballot title for failing to summarize the proposal's provisions and effects.

Preliminary Matter

Your proposal does not contain the required enacting clause. The cases discussed above, in requiring popular names and ballot titles to be intelligible, honest, and impartial, take for granted an implied fourth requirement: that the proposal comply with technical requirements plainly set forth in the constitution. Your proposal fails to do so.

The constitution provides among other things that "[t]he style of all bills initiated and submitted under the provisions of this section shall be, 'Be It Enacted by the People of the State of Arkansas (municipality or county, as the case may be).'"

The Arkansas Supreme Court has elaborated:

Our constitution in its present form does not afford leeway for innovative case interpretations of substantial compliance. Its language is clear that the [enacting clause] provision shall be treated as mandatory. Simply put, that all bills initiated must be submitted in the ... language set forth in Amendment 7....

Thus our constitution speaks, and thus our law requires.

Your submission is not in final "petition" format, and it may be your intention to add an enacting clause when the proposal is incorporated into a formal petition. As noted, however, the constitution requires that the enacting clause be the bill's "style." Your submitted text is presumably the entire language of your proposed "bill." Because this language does not include the enacting clause and an act initiated without it would be subject to challenge, voters may be misled as to the effectiveness of the measure.

Ballot Title

Your ballot title is impermissibly misleading in failing to summarize any of the proposal's provisions; to mention some provisions at all; to describe changes the proposal would make in existing state law; to describe the extent, if any, to which existing federal law already provides some of the protections intended to be provided by the proposal; to describe the extent, if any, to which your proposal conflicts with existing federal law and would therefore be preempted and ineffective; to describe how, if at all, the proposal's provisions could or would be enforced against the various out-of-state persons and entities it purports to bind; the extent to which provisions of the proposal may be unconstitutional; and to disclose other material facts that would give voters grounds for reflection.

Your ballot title is merely a statement that the act would "provid[e] privacy protections" in several, but not all, areas addressed by the proposal and make "other changes." This language is wholly deficient. It evidences little or no effort to summarize the proposal and its material effects and limitations and is therefore inherently misleading under the standards established by the Arkansas Supreme Court (as set out above).

Proposal's Text

In my view, as discussed above, your ballot title is wholly deficient as it fails to summarize the proposal. Additionally, the text of the proposal contains many ambiguities, making it impossible to substitute a ballot title for the one proposed. I cannot fairly or completely describe the proposal to the electorate in a ballot title without resolution of the proposal's ambiguities. I am therefore unable to substitute and certify a more suitable and correct ballot title under A.C.A. § 7-9-107(b).

In the normal course, this office attempts to point out and describe all the ambiguities contained in a proposal rejected because of such ambiguities. Here, I have rejected the proposal because of fundamental shortcomings in the ballot title. Additionally in this case, given your proposal's length, complexity, grammatical errors, and misspellings, my preparation of such a list is impracticable and would go well beyond the appropriate examination and certification process and amount to acting as the proposal's drafter. In considering whether to submit a revised proposal, you should be aware that we may call attention to a proposal's ambiguities on any review, even though they may have been embodied in an earlier version of the proposal. If you have not done so already, you may wish to consult legal counsel or someone experienced in the drafting of legislation and/or the editing of legal documents before resubmitting your proposed initiated act.

I can say in general that your proposal has several shortcomings that create ambiguity about its intent and effect. I list here some examples:

• Section 5 provides in part that "If any breach of privacy of any information contained by any person or entity shall be breached," then the Attorney General will undertake an investigation as described in the section. I do not know what might constitute a breach of a breach. Neither do I know what you mean by the phrase "information contained by any person."

• Section 9 provides in part that "Employment records shall only be made available to third parties by any person or other entity that has access to such records." It is difficult to imagine how a person that does NOT have access to employment records could make them available to a third party. The sentence is nonsensical and its meaning is therefore impossible to discern.

• Section 10 provides in part that "No list ... shall be made ... that shall list the name ... or telephone number ... of any resident of this State." The provision therefore would purport to make it unlawful, for example, to publish a telephone book or prepare a Christmas card list. It seems unlikely that result is intended but the real intent is impossible to determine.

• Section 11 provides in part that "No educational record shall be released ... except by a written agreement to share such information with no more than one person or entity at a time ...." There being no requirement in the provision that the subject of the records be a party to the agreement, the provision provides no privacy protection at all, and its meaning is therefore unclear.

• Section 11 further provides in part that "at no time shall any educational record be made available to any list ... that shall make such records publically [sic] available." I do not know what it means to make a record available to a list.

I reiterate that the foregoing lists only a few examples of the proposal's many ambiguities and is not exhaustive.

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,

LESLIE RUTLEDGE
Attorney General

LR/cyh