Did the Arkansas AG approve the popular name and ballot title for Robert Reed's 2014 Arkansas Hemp and Cannabis Amendment initiative?

Plain-English summary

Robert Reed submitted a proposed constitutional amendment for AG certification under A.C.A. § 7-9-107. The amendment would decriminalize cultivation, manufacturing, distribution, sale, possession, and use of the cannabis plant (both low-THC "hemp" at 1% or less, and higher-THC "cannabis" above 1%). Effective date: April 20, 2015.

Reed had submitted similar measures eight times before, all rejected. (See Op. 2014-043, 2014-037, 2014-034, 2014-022, 2014-014, 2013-021, 2011-059, 2011-031.) This time, after changes to the text, the AG accepted the popular name as submitted but substituted a clearer ballot title.

The AG's substituted ballot title made these improvements over Reed's draft:

1. Activity legality phrased as "lawful" rather than "permitted", matching the operative text of the amendment.
2. Separated the regulation rules for hemp vs. cannabis. Reed's draft said cannabis "may be regulated but not prohibited"; the AG's draft makes clear that cannabis devoted to personal, industrial, or commercial use may be regulated but not prohibited, and hemp devoted to such use may be regulated but not prohibited, with the additional condition that the number of plants or products derived from hemp manufacturing cannot be limited.
3. Dropped the imprecise "and other purposes" language that often invites Supreme Court rejection of ballot titles.
4. Retained the note that preemptive federal law remains in effect unless altered by Congress.

The AG explained at length the legal framework for his review. Under A.C.A. § 7-9-107, the AG must certify the popular name and ballot title before the petitions can be circulated. He can substitute a more suitable name or title, or reject the petition outright if the title is "sufficiently misleading." His role is not to evaluate the merits of the proposal. He limits review to whether the popular name and ballot title honestly, intelligibly, and fairly summarize what the amendment would do. Arkansas Supreme Court precedent (Bailey v. McCuen, Christian Civic Action Committee v. McCuen, Roberts v. Priest, May v. Daniels) sets the standards: the title must give voters a fair understanding of the proposal, must not be misleading by amplification, omission, or fallacy, must be free of partisan coloring, and must be brief enough to fit within the five-minute voting-booth limit set by A.C.A. § 7-5-522.

Internal inconsistencies in the proposed amendment itself can also doom a ballot title. The AG noted (per Roberts v. Priest, 341 Ark. 813) that confusion in the underlying text leads to confusion in the title. The reformulation cleans up some of the ambiguities in Reed's draft.

Because the certification went through, the AG attached "Instructions to Canvassers and Signers" under A.C.A. § 7-9-108, which sponsors must include in petitions before circulation. The instructions cover Amendment 7's signature thresholds (8% for legislation, 10% for amendments, 6% for referenda), the requirement that signers be registered voters, witnessing rules, and the misdemeanor penalties for false signing or compensation violations.

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

What's the Arkansas AG's role in approving ballot titles for initiatives?
At the time of this opinion, A.C.A. § 7-9-107 required the AG to review and certify the popular name and ballot title of any proposed initiative before sponsors could circulate petitions. The AG could approve, substitute, or reject. The AG does not pass on the merits of the proposal.

What standards does the AG use to evaluate a proposed ballot title?
The title must honestly, intelligibly, and fairly summarize the proposal. It must be free of misleading tendencies (whether by amplification, omission, or fallacy) and free of partisan coloring. It must be brief enough to fit within the five-minute voting-booth limit (A.C.A. § 7-5-522), and it must give voters serious essential facts that would give them ground for reflection. The Arkansas Supreme Court precedents include Bailey v. McCuen, Christian Civic Action Committee v. McCuen, and Becker v. Riviere.

Did the 2014 Arkansas Hemp and Cannabis Amendment go on the ballot?
The AG's certification was just the first step. After certification, the sponsors had to collect the required signatures from 10% of legal voters and submit petitions to the Secretary of State for verification. This summary does not track what happened after certification; check the Secretary of State's ballot records for the November 2014 election to see what ultimately reached voters.

What is the difference between "hemp" and "cannabis" under this proposed amendment?
The proposal defined "hemp" as any part of the cannabis plant containing 1% or less Delta-9-THC by dry weight, and "cannabis" as any part of the cannabis plant containing more than 1% Delta-9-THC by dry weight. Both would have been legal under the amendment, with slightly different regulatory authorities for the General Assembly.

Why did Reed have to submit this proposal multiple times?
The 2014 opinion lists eight prior AG opinions on Reed's earlier cannabis proposals (going back to 2011). Each prior submission was either rejected or had substantive issues. Multiple revisions are common for initiative sponsors; the AG's review process gives sponsors feedback before they invest in collecting signatures on a defective text.

What does "Amendment 7" mean in the canvasser instructions?
Amendment 7 to the Arkansas Constitution (the "Initiative and Referendum" amendment) reserves to the people the power to propose legislation and constitutional amendments through petitions. It sets the percentage thresholds (8% for legislation, 10% for constitutional amendments, 6% for referenda) and the procedural framework that A.C.A. § 7-9-101 et seq. implements.

Background and statutory framework

Arkansas voters have direct legislative power under Amendment 7 of the Arkansas Constitution. The implementing statutes are at A.C.A. §§ 7-9-101 et seq. The AG's certification role is at A.C.A. § 7-9-107. The instructions-to-canvassers requirement is at A.C.A. § 7-9-108. The voting-booth time limit (which constrains ballot-title length) is at A.C.A. § 7-5-522.

The Arkansas Supreme Court has developed a substantial body of law on what makes a ballot title sufficient:

• Pafford v. Hall, 217 Ark. 734 (1950): popular name is primarily a useful legislative device.
• Moore v. Hall, 229 Ark. 411 (1958) and Chaney v. Bryant, 259 Ark. 294 (1976): popular name must not be misleading or give partisan coloring.
• Becker v. Riviere, 270 Ark. 219 (1980): ballot title must include an impartial summary that gives the voter a fair understanding of the issues.
• Becker v. McCuen, 303 Ark. 482 (1990): title must be honest and impartial.
• Bailey v. McCuen, 318 Ark. 277 (1994): title must disclose essential facts that would give voters serious ground for reflection; cannot be misleading by amplification, omission, or fallacy.
• Christian Civic Action Committee v. McCuen, 318 Ark. 241 (1994): title must convey an intelligible idea of the scope and significance of the change.
• Donovan v. Priest, 326 Ark. 353 (1996) and Kurrus v. Priest, 342 Ark. 434 (2000): Amendment 7 cannot empower initiatives that fall outside the powers reserved to the states under the U.S. Constitution.
• Plugge v. McCuen, 310 Ark. 654 (1992): the AG does not require ballot titles to flag every constitutional infirmity.
• May v. Daniels, 359 Ark. 100 (2004): popular name and ballot title considered together for sufficiency.
• Roberts v. Priest, 341 Ark. 813 (2000): internal inconsistencies in the proposed measure contribute to ballot-title confusion and can warrant rejection.

The 2014 opinion follows the standard AG template for ballot-title certifications, with the substantive analysis customized to the specific amendment text. The substituted ballot title fixes specific drafting issues without changing the operative content of the amendment.

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (AG certification of popular name and ballot title)
• A.C.A. § 7-9-107(b) (brevity requirement)
• A.C.A. § 7-9-108 (instructions to canvassers and signers)
• A.C.A. § 7-5-522 (five-minute voting-booth time limit)
• Ark. Const. amend. 7 (initiative and referendum power)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (Amendment 7 cannot empower measures outside U.S. Constitution)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996) (same)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984) (purpose of AG review)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies in proposal can warrant rejection)
• Op. Att'y Gen. 2014-043, 2014-037, 2014-034, 2014-022, 2014-014, 2013-021, 2011-059, 2011-031 (prior submissions by same sponsor)

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. 2014-056
June 4, 2014

Robert L. Reed
295 Elan Trail
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 constitutional
amendment. You previously submitted similar measures, which this office
rejected. See Op. Att'y Gen. Nos. 2014-043, 2014-037, 2014-034, 2014-022,
2014-014, 2013-021, 2011-059 and 2011-031. You have made changes to the text
of the measure and resubmitted your proposed popular name and ballot title, as
follows:

Popular Name

THE ARKANSAS HEMP AND CANNABIS AMENDMENT

Ballot Title

An amendment proposed by the people to the Arkansas Constitution
to provide effective April 20, 2015, that the cultivation,
manufacturing, distribution, sale, possession and use of the cannabis
plant (genus cannabis) and all products derived from the cannabis
plant (genus cannabis) is permitted 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); "cannabis" 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 cannabis plant
(genus cannabis) may be regulated but not prohibited by the General
Assembly; and, that all laws in conflict with this amendment are
repealed to the extent they conflict with his [sic] amendment.
Preemptive federal law will remain in effect unless altered by
Congress.

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 your proposed popular name
is sufficient but that a more suitable, complete and correct popular name and ballot
title should be substituted for that proposed. The following is hereby certified in
order to ensure that the ballot title accurately sets forth the purpose of the proposed
amendment:

Ballot Title

An amendment proposed by the people to the Arkansas Constitution
to provide, effective April 20, 2015, that the cultivation,
manufacturing, distribution, sale, 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, "cannabis" 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 "cannabis" devoted to personal,
industrial or commercial use may be regulated but not prohibited by
the General Assembly; and that the listed activities relating to
"hemp" devoted to personal, industrial or commercial use may be
regulated but not prohibited, subject to the condition that the number
of plants cultivated or the products derived from manufacturing shall
not be limited or prohibited by the General Assembly. Preemptive
federal law will remain in effect unless altered by Congress.

In my view, the purpose of your proposed measure is sufficiently stated in the
above revised ballot title to satisfy this office's mandate under A.C.A. § 7-9-107.

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

INSTRUCTIONS TO CANVASSERS AND SIGNERS

1. Amendment No. 7 to the Arkansas Constitution gives to the people of the State of
   Arkansas the power to propose legislation or constitutional amendments by initiative
   petition, and to order the referendum against any general act or any item of an
   appropriation bill, or measure passed by the General Assembly. The petition must be
   signed by eight percent (8%) of the legal voters in the case of proposed legislation, ten
   percent (10%) in the case of proposed constitutional amendments, and six percent (6%) in
   the case of a referendum. The proposed legislation or constitutional amendment must be
   submitted to the registered voters of the State at a regular election; referendum petitions
   may be referred to the people at special elections when fifteen percent (15%) of the
   registered voters petition for such special election. Any measure submitted to the people
   shall take effect and become a law when approved by a majority of the votes cast upon
   such measure.

2. Only registered voters may sign. Printed names, dates of birth, residences, cities or
   towns of residences, and date of signing must be given as an aid to verification. The
   petition should contain only the signatures of voters residing in a single county.

3. All signatures must be in the signers' own handwriting in the presence of the
   persons circulating the petition. If a petition signer requires assistance due to disability,
   another person may provide the signer's information and that person shall sign and print
   their name in the margin of the petition.

4. Do not attach additional sheets to this petition unless such sheets contain the full
   language of the petition. Place as many names as possible on each petition. No additional
   signatures may be obtained after a petition has been filed until the Secretary of State
   determines the sufficiency of the petition.

5. TO KNOWINGLY SIGN ANY NAME OTHER THAN YOUR OWN, TO
   KNOWINGLY SIGN YOUR NAME MORE THAN ONCE TO ANY PETITION, TO
   KNOWINGLY SIGN YOUR NAME WHEN YOU ARE NOT LEGALLY ENTITLED
   TO SIGN IT, TO KNOWINGLY PAY A PERSON ANY FORM OF COMPENSATION
   IN EXCHANGE FOR SIGNING A PETITION AS A PETITIONER, TO ACCEPT
   MONEY FOR OBTAINING SIGNATURES KNOWING THAT YOU ARE NOT
   INCLUDED ON THE SPONSOR'S LIST OF PAID CANVASSERS ON FILE WITH
   THE SECRETARY OF STATE, TO KNOWINGLY AND FALSELY MISREPRESENT
   THE PURPOSE AND EFFECT OF THIS PETITION FOR THE PURPOSE OF
   CAUSING ANYONE TO SIGN IT, OR TO KNOWINGLY MAKE A FALSE
   STATEMENT ON A PETITION VERIFICATION FORM SHALL CONSTITUTE A
   CLASS "A" MISDEMEANOR AND SUBJECT THE OFFENDER TO A FINE OF UP
   TO $1,000.00 AND IMPRISONMENT FOR UP TO ONE (1) YEAR.

The Attorney General is by law required to certify the sufficiency of the popular name
and ballot title of all initiative or referendum petitions. This certification does not
necessarily indicate the approval or disapproval of the contents thereof.

DUSTIN McDANIEL
Attorney General of the State of Arkansas