Did the Arkansas AG certify a 2014 constitutional amendment legalizing cannabis statewide with a 1% THC dividing line between hemp and cannabis?

Plain-English summary

Frederick Porter of Hot Springs submitted a proposed constitutional amendment to legalize cannabis statewide, with hemp defined as cannabis material containing 1% or less Delta-9-THC by dry weight and "cannabis" defined as material containing greater than 1% Delta-9-THC. The General Assembly could regulate but not prohibit the cannabis plant; preemptive federal law would remain in effect unless altered by Congress.

The submission was identical in every respect, except its effective date, to a measure the AG had already reviewed in Op. Att'y Gen. 2014-056. AG Dustin McDaniel applied the same handling here: he certified the popular name ("The Arkansas Hemp and Cannabis Amendment") as submitted, and exercised his A.C.A. § 7-9-107(b) authority to substitute a refined ballot title that he then certified.

The substituted ballot title clarified two issues. First, it separated the regulatory rules for hemp and cannabis. The original draft used a single "listed activities" clause that was ambiguous about whether the General Assembly's regulatory authority over cannabis (the higher-THC category) was subject to the same plants-and-products limit as hemp. The AG's substitute made the rule for cannabis a clean "may be regulated but not prohibited," with no further constraint on plant numbers. For hemp, the substitute kept the original draft's structure: the General Assembly may regulate but not prohibit, subject to the condition that the number of plants cultivated or the products derived from manufacturing shall not be limited or prohibited.

Second, the substituted ballot title used cleaner statutory diction ("are lawful" rather than "is permitted") and clearer punctuation.

The opinion otherwise tracked the standard ballot-title certification framework. The AG recited the Pafford v. Hall / Becker v. Riviere / Bailey v. McCuen line of Arkansas Supreme Court authority on what makes a ballot title sufficient: it must be impartial, honest, free from misleading tendency, and convey an intelligible idea of the scope and significance of the proposed change in the law. Where the underlying text is ambiguous, the AG must reject; where the original ballot title is salvageable, the AG may substitute.

Per A.C.A. § 7-9-108, the standard canvasser/signer instructions enclosed with the opinion had to precede every petition before circulation. Constitutional amendment petitions require signatures from 10% of legal voters. Signing fraud and paying-for-signature schemes are Class A misdemeanors.

The certification was procedural, not policy. The AG repeated the standard disclaimer: "Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal."

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 did the AG actually certify?
The popular name "The Arkansas Hemp and Cannabis Amendment" was certified as submitted. The AG substituted a refined ballot title and certified that. Together, the popular name and the substituted ballot title formed the certified package the sponsor could use on circulating petitions.

What was the key textual change?
The AG split the hemp-and-cannabis paragraph in the ballot title so it was clear that the no-plant-limit and no-product-limit constraints applied specifically to hemp, and that for cannabis the rule was simply "may be regulated but not prohibited." The original draft conflated the two and could have left voters guessing.

How does this differ from Op. Att'y Gen. 2014-091?
The Porter submission (2014-079) was a cleaner, more focused amendment whose only real ambiguity was the hemp/cannabis regulatory-scope distinction. The Barley submission rejected in 2014-091 had multiple compounding defects (imperative-mood popular name, license-requirement ambiguity, defective tax-authority citation, ballot title that omitted entire sections of the proposal). The AG could substitute and certify Porter's; he had to reject Barley's outright.

What's the difference between an "initiated act" and a "constitutional amendment" in this context?
An initiated act creates statutory law and requires signatures from 8% of legal voters. A constitutional amendment changes the state constitution and requires 10%. Porter submitted a constitutional amendment, so the 10% threshold applied.

Could a court still reject the substituted ballot title?
Yes. AG certification is procedural protection but not litigation insurance. The Arkansas Supreme Court has the final word on ballot-title sufficiency, typically through pre-election challenges under Roberts v. Priest and the cases the AG cited.

What was the relationship between this opinion and Op. Att'y Gen. 2014-056?
The 2014-079 submission was the same amendment as 2014-056, except for the effective date. Both received the same disposition: popular name certified as submitted, ballot title substituted and certified.

Background and statutory framework

A.C.A. § 7-9-107 (Repl. 2013) is the certification statute. The AG must certify or reject the popular name and ballot title before petitions are circulated. § 7-9-107(b) authorizes substitution of more suitable titles when the original is salvageable.

A.C.A. § 7-9-108 requires that AG-issued canvasser/signer instructions precede every petition.

A.C.A. § 7-5-522 imposes the five-minute voting-booth limit that constrains how long a ballot title can be.

The Arkansas Supreme Court precedent on ballot-title sufficiency includes Bailey v. McCuen (no misleading tendency by amplification, omission, or fallacy), Christian Civic Action Committee v. McCuen (intelligible idea of scope and significance), Becker v. McCuen (honest and impartial), and Roberts v. Priest (internal inconsistencies in the text doom the title).

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (AG certification statute)
• A.C.A. § 7-9-107(b) (substitution authority)
• A.C.A. § 7-9-108 (canvasser instructions)
• A.C.A. § 7-5-522 (booth time limit)
• Kurrus v. 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)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984)
• Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950)
• May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004)
• Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980)
• Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994)
• Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000)
• Op. Att'y Gen. 2014-056 (prior identical submission, differing only on effective date)

Source

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

Original opinion text

Opinion No. 2014-079
August 5, 2014

Frederick W. Porter
102 Timber Street
Hot Springs, Arkansas 71913

Dear Mr. Porter:

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. Your submission is identical in all respects other than its proposed effective date to one I certified, after revising the proposed ballot title, in Op. Att'y Gen. 2014-056. Your proposed popular name and ballot read 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 February 20, 2017, 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 this 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 February 20, 2017, 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.

Attorney General
DM/cyh

Enclosures