Did the Arkansas AG approve the ballot title for David Dinwiddie's 2014 proposal to create a blanket primary system?

Plain-English summary

David Dinwiddie submitted a proposed initiated statute to require that all Arkansas primary elections be conducted as "blanket primaries." Under his proposal, voters could choose any candidate for each office regardless of party affiliation, with the candidate receiving the most votes within each party advancing to the general election as that party's nominee. Independent candidates and new third parties would skip the primary and appear directly on the general election ballot.

AG Dustin McDaniel declined to certify the popular name and ballot title. The reason wasn't a drafting issue: the AG rejected the proposal because the substance would violate the U.S. Constitution, and Arkansas's Amendment 7 initiative power cannot reach measures the federal Constitution forbids.

The substantive constitutional analysis:

Blanket primaries violate the First Amendment. In California Democratic Party v. Jones, 530 U.S. 567 (2000), the U.S. Supreme Court struck down California's blanket primary. A blanket primary, as defined by the Court, is one where "any person, regardless of party affiliation, may vote for a party's nominee." The Court held this forces political parties to associate with "persons wholly unaffiliated with the party" in selecting their candidates, which violates the parties' First Amendment freedom of association. The same logic later defeated blanket primary statutes in Washington (Democratic Party of Washington State v. Reed, 343 F.3d 1198, 9th Cir. 2003) and Alaska (O'Callaghan v. Dir. of Elections, 6 P.3d 728, Alaska 2000). The Ninth Circuit summarized the rule in Alaskan Independence Party v. Alaska, 545 F.3d 1173, 1178 (9th Cir. 2008): blanket primaries "violate a party's associational right to have its nominee chosen by members of its own party."

Amendment 7 cannot authorize federally unconstitutional measures. The Arkansas Supreme Court in Donovan v. Priest, 326 Ark. 353 (1996), held that Amendment 7 can only empower the people to enact measures "within constitutional limits" set by both the U.S. and Arkansas Constitutions. The Tenth Amendment reserves to the states only those powers not prohibited by the U.S. Constitution. So if the proposed initiative would violate the First Amendment, it falls outside the people's reserved power, and Amendment 7 cannot authorize it. Kurrus v. Priest, 342 Ark. 434 (2000), confirmed this in declining to submit to voters a proposed amendment that would have unconstitutionally impaired contracts.

Dinwiddie's proposal is materially indistinguishable from California's struck-down statute. Dinwiddie's text referred to a single "Primary Ballot" in the singular, indicating all candidates from all parties on one ballot, with voters choosing freely across party lines. That's exactly the structure the Supreme Court invalidated in Jones. The AG found no constitutionally significant distinction.

So under the AG's authority at A.C.A. § 7-9-107(c) to reject a popular name and ballot title when the proposal is fundamentally outside the initiative power, the AG declined to certify.

A note on what the rejection does not mean: it doesn't prevent the legislature from considering open primary or top-two primary reforms (which work differently from blanket primaries and may not run afoul of Jones). It doesn't prevent the parties themselves from voluntarily opening their primaries to non-members. The constitutional bar is only on the state forcing parties into a blanket primary system.

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 is a "blanket primary" and how does it differ from an open primary?
A blanket primary lists all candidates from all parties on a single ballot. Voters pick one candidate per office, mixing parties freely. The highest vote-getter within each party advances as that party's nominee. An open primary, by contrast, has separate party ballots, but voters can choose which party's primary they want to participate in (typically choosing a single party for the whole ballot). The Supreme Court invalidated blanket primaries in California Democratic Party v. Jones (2000) but has not invalidated open primaries.

Why does a blanket primary violate the First Amendment?
Because it forces political parties to let non-members participate in selecting the party's nominees. The Supreme Court held in Jones that parties have a First Amendment associational right to choose their own candidates without state-imposed interference from "wholly unaffiliated" voters. A blanket primary directly intrudes on that right.

Could Arkansas voters use an initiative to enact a top-two primary like Washington's or California's current system?
Possibly, depending on how it's structured. The "top-two" primary that California adopted after Jones (and Washington's similar Initiative 872) is not technically a blanket primary because the top-two candidates advance regardless of party, not as any party's nominee. The Supreme Court left open whether such systems comply with the First Amendment, and Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008), upheld Washington's top-two primary on a facial challenge. This 2014 AG opinion does not address top-two systems.

Can the Arkansas AG reject an initiative on substantive constitutional grounds?
Yes. A.C.A. § 7-9-107(c) lets the AG reject a popular name and ballot title if the measure is "sufficiently misleading," and Arkansas Supreme Court precedent (Donovan v. Priest, Kurrus v. Priest) confirms that Amendment 7 cannot authorize measures outside the people's federally reserved power. If a proposal is clearly unconstitutional, the AG can decline to certify it.

What's the Arkansas Supreme Court's standard for declining to put a measure on the ballot?
Generally, the AG and courts will not require sponsors to flag every possible constitutional infirmity. But if the measure is "clearly contrary to law," the AG can reject it. In Kurrus v. Priest, the court declined to submit a proposed amendment that would have unconstitutionally impaired contracts. In Donovan v. Priest, the court explained the structural rule that the Tenth Amendment defines the outer limit of what voters can enact through Amendment 7.

What happens to a rejected proposal?
The sponsor can revise and resubmit. Or the sponsor can challenge the rejection in court. Either way, the proposal cannot be circulated for signatures until the AG certifies it.

Background and statutory framework

The Arkansas AG's review of initiative petitions is governed by A.C.A. § 7-9-107. The AG can approve, substitute a better popular name and ballot title, or reject. The rejection authority kicks in when the proposal is sufficiently misleading or, as the Arkansas Supreme Court has clarified, when the proposal is constitutionally impermissible.

The constitutional structure is layered:

• Ark. Const. amend. 7 reserves to the people the power to initiate and refer state laws.
• U.S. Const. amend. X reserves to the states (and the people) only the powers not delegated to the federal government or prohibited by the U.S. Constitution.
• The First Amendment (made applicable to states through Everson v. Board of Education, 330 U.S. 1, 1947, and Torcaso v. Watkins, 367 U.S. 488, 1961, by way of the Fourteenth Amendment) protects political parties' associational rights.

The Supreme Court's blanket primary cases:

• California Democratic Party v. Jones, 530 U.S. 567 (2000): California's blanket primary unconstitutional. The Court explained that the state's interest in voter choice does not outweigh the parties' associational rights, especially since California had less restrictive alternatives like a nonpartisan blanket primary or a true open primary.
• Democratic Party of Washington State v. Reed, 343 F.3d 1198 (9th Cir. 2003): Washington's blanket primary similarly invalid. The Ninth Circuit held the statute was facially unconstitutional as a burden on free association.
• O'Callaghan v. Dir. of Elections, 6 P.3d 728 (Alaska 2000): Alaska Supreme Court followed Jones, recognizing that the Supremacy Clause required state courts to adhere to the federal interpretation.
• Alaskan Independence Party v. Alaska, 545 F.3d 1173 (9th Cir. 2008): Ninth Circuit synthesis of the rule.

The Arkansas precedents:

• U.S. Term Limits, Inc. v. Hill, 316 Ark. 251 (1994): Amendment 7 framework.
• Donovan v. Priest, 326 Ark. 353 (1996): Amendment 7 cannot reach measures outside the people's federally reserved power.
• Kurrus v. Priest, 342 Ark. 434 (2000): declined to submit a proposed amendment that would have unconstitutionally impaired contracts.

Prior AG opinions declining to certify under the same logic: Op. 2011-028, 2006-002, 2005-285 and the opinions cited therein.

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (AG certification of initiative petitions)
• A.C.A. § 7-9-107(c) (AG authority to reject)
• Ark. Const. amend. 7 (initiative and referendum power)
• U.S. Const. amend. I (First Amendment)
• U.S. Const. art. VI (Supremacy Clause)
• U.S. Const. amend. X (Tenth Amendment)
• California Democratic Party v. Jones, 530 U.S. 567 (2000) (blanket primary unconstitutional)
• Cal. Democratic Party v. Jones, 984 F. Supp. 1288 (E.D. Cal. 1997) (district court description of California system)
• Democratic Party of Washington State v. Reed, 343 F.3d 1198 (9th Cir. 2003) (Washington blanket primary invalid)
• O'Callaghan v. Dir. of Elections, 6 P.3d 728 (Alaska 2000) (Alaska Supreme Court applying Jones)
• Alaskan Independence Party v. Alaska, 545 F.3d 1173 (9th Cir. 2008) (Ninth Circuit synthesis)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996) (Amendment 7 limits)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (declining to submit unconstitutional amendment)
• U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994) (Amendment 7)
• Torcaso v. Watkins, 367 U.S. 488 (1961) (First Amendment incorporation)
• Everson v. Board of Education, 330 U.S. 1 (1947) (First Amendment incorporation)
• Op. Att'y Gen. 2011-028, 2006-002, 2005-285 (prior rejections on constitutional grounds)

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. 2014-058

June 18, 2014

David E. Dinwiddie

8608 Princeton Pike

Pine Bluff, Arkansas 71602

Dear Mr. Dinwiddie:

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 measure:

Popular Name

PROPOSED STATUTE TO REQUIRE PRIMARY ELECTIONS
BE CONDUCTED AS A BLANKET PRIMARY

Ballot Title

Proposed statute to require primary elections be conducted as a
blanket primary

The Attorney General is required, pursuant to A.C.A. § 7-9-107 (Supp. 2013) to
pass on the sufficiency of the popular name and ballot title of all proposed
initiative and referendum acts or amendments before the petitions are circulated
for signature. This process is in aid of Amendment 7 to the Arkansas Constitution,
which reserves to the people the power to enact state laws and to propose
statewide constitutional amendments. The law provides that the Attorney General
may approve and certify or substitute and certify a more suitable and correct
popular name and ballot title; or he may reject the entire ballot title, popular name,
and petition if he determines that the ballot title or the nature of the issue is
presented in such a manner that the ballot title would be misleading.

Having reviewed your proposed initiated act, ballot title, and popular name
pursuant to this authority, it is my determination that your submission, which
proposes to establish a blanket primary system, must be rejected because it would
violate the United States Constitution. As recognized by the Arkansas Supreme
Court, Amendment 7 cannot empower the people of the State of Arkansas to
initiate any measure that falls outside the powers reserved to the states and their
citizens by the United States Constitution:

The voters of this state essentially have, within constitutional
limits, a right to change any law or any provision of our Constitution
they deem appropriate through Amendment 7 to the Constitution.
Clearly those constitutional limitations derive from both the United
States Constitution and this state's constitution. On the federal
level, the rights reserved to the states and to the people of the states
originate from the Tenth Amendment to the United States
Constitution, which provides that "[t]he powers not delegated to the
United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people." Thus, our
Amendment 7 cannot empower the people of this state to initiate any
measure, law, or amendment which falls outside the powers reserved
to the states and their citizens by the United States Constitution.

Applying this principle, I must conclude that your proposed measure is not
authorized by Amendment 7 because it would violate the provisions of the First
Amendment to the United States Constitution as interpreted by the U.S. Supreme
Court. Your proposed measure states:

Proposed Statute: Primary Elections shall be conducted as a
Blanket Primary.

Voters may choose candidates for each office without regard to
party. The candidates with the highest votes by party for each office
advance to the general election, as the respective party's nominee.
Independent candidates and new third parties are not listed on
Primary Ballot but are included in General Election.

You may be unaware of the constitutional problem with this proposal, but the
United States Supreme Court has struck down the partisan blanket primary as
unconstitutional under the First Amendment to the U.S. Constitution. The term
"blanket primary" refers to a system in which "any person, regardless of party
affiliation, may vote for a party's nominee." In California Democratic Party v.
Jones, the Court held that California's blanket primary violated the political
parties' First Amendment right of association because the process "open[ed] [the
candidate-selection process] up to persons wholly unaffiliated with the party."
As stated by one legal commentator in the wake of Jones, "a state cannot force
parties to include 'wholly unaffiliated' voters in their elections by virtue of
blanket primaries."

Blanket primaries utilized by Alaska and Washington were of the same type as
California, and were thus also invalidated following Jones. The 9th Circuit Court
of Appeals later summarized the principle established by Jones:

The Supreme Court has held that blanket primaries, in which all
candidates are combined on a single ballot and may be voted upon
by voters affiliated with any party, violate a party's associational
right to have its nominee chosen by members of its own party. See
Jones, 530 U.S. at 577, 120 S.Ct. 2402 (holding that a blanket
primary "forces political parties to associate with, to have their
nominees, and hence their positions, determined by, those who, at
best, have refused to affiliate with the party, and, at worst, have
expressly affiliated with a rival"). Because blanket primaries
violate political parties' First Amendment rights, they may not
constitutionally be used to "choos[e] a party's nominee." Id. at
586, 120 S.Ct. 2402.

Your proposal appears to be materially indistinguishable from the statutes struck
down in these cases. The reference, in the singular, to "Primary Ballot" in the text
of your proposed measure indicates that all candidates from all political parties
would appear on a single ballot. It is plainly your intention that each voter's ballot
would list every candidate regardless of party affiliation, allowing the voter to
choose freely among them and thereby permitting voters to participate in any party
primary on an office-by-office basis.

I believe it is apparent based on the above case law that this proposed blanket
primary scheme contravenes the United States Constitution. And as noted by the
Alaska Supreme Court, "[t]he United States Constitution's Supremacy Clause
requires states to adhere to the Supreme Court's constitutional interpretation in
Jones."

In conclusion, therefore, it is my opinion that your proposed initiated measure is
not authorized by Amendment 7 to the Arkansas Constitution because it falls
outside the powers reserved to the people by the U.S. Constitution. More
specifically, it unconstitutionally infringes upon the political parties' First
Amendment rights of free association. Accordingly, I must respectfully decline to
certify a popular name and ballot title for this measure.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:cyh