Did the Arkansas AG certify a proposed initiated act to add sexual orientation and gender identity to the Arkansas Civil Rights Act's protected classes?
Apply this to your situation
This page answers the general question as of 2015. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Jack Weir III submitted a proposed initiated act for AG certification under A.C.A. § 7-9-107. The proposal would have amended A.C.A. § 16-123-107(a), the discrimination-offenses provision of the Arkansas Civil Rights Act of 1993, to add "sexual orientation" and "gender identity" to the list of bases on which civil-rights protection runs. The act would have left intact the existing protected classes (race, religion, national origin, gender, disability) and the existing list of protected activities (employment, public accommodations, property transactions, credit and contracts, voting and political participation).
AG Leslie Rutledge approved the popular name "An Act Amending the Arkansas Civil Rights Act of 1993" as submitted. She substituted a cleaner ballot title in place of the version Mr. Weir proposed. The submitted version had typos ("enjoymant," "accomodation"), did not name the existing protected classes the act would not change, and ran longer than needed. The substituted ballot title fixed the typos, added the existing protected classes for context (so voters could see what was being added rather than replaced), and tightened the language. The substituted title:
This Act amends the Arkansas Civil Rights Act of 1993 to add a right to be free from discrimination on the basis of both sexual orientation and gender identity. The Arkansas Civil Rights Act currently gives people the right to be free from discrimination on the basis of race, religion, national origin, gender, or disability. The right to be free from discrimination includes (1) the right to obtain and hold employment without discrimination; (2) the right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement; (3) the right to engage in property transactions without discrimination; (4) the right to engage in credit and other contractual transactions without discrimination; and (5) the right to vote and participate fully in the political process.
With the substitute, the AG certified the package for circulation. The opinion attached the standard Instructions to Canvassers and Signers required by A.C.A. § 7-9-108, including the petition-fraud penalties in A.C.A. § 5-55-601(b).
This certification did not put the act on the ballot. It only cleared the petition for signature gathering. The sponsor then had to collect signatures from at least 8% of legal voters (the threshold for initiated acts) to qualify for the next general election.
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.
Background and statutory framework
A.C.A. § 7-9-107 makes the AG the gatekeeper for initiated and referred ballot titles. The AG can certify as submitted, substitute and certify a more suitable version, or reject. Where a defect can be cured by editorial improvement (typos, missing context, redundant phrasing), the AG's normal course is to substitute and certify rather than reject. This opinion is the AG using that substitution power.
The Arkansas Supreme Court has set out what a ballot title must do: provide an "impartial summary" that gives voters "a fair understanding of the issues presented" (Becker v. Riviere, 270 Ark. 219 (1980)); disclose any "essential fact which would give the voter serious ground for reflection" (Bailey v. McCuen, 318 Ark. 277 (1994)); be free of partisan coloring (Becker v. McCuen, 303 Ark. 482 (1990)); and convey an intelligible idea of the scope and significance of the proposed change (Christian Civic Action Committee v. McCuen, 318 Ark. 241 (1994)). The brevity ceiling comes from A.C.A. § 7-5-522, which caps voter booth time at five minutes.
The AG's certified popular name in this opinion ("An Act Amending the Arkansas Civil Rights Act of 1993") is what triggered the next domino. Two weeks later, in Op. Att'y Gen. 2015-035, the same sponsor submitted a revised, broader version that added "age" and "veteran or military status" alongside sexual orientation and gender identity. He proposed the same popular name. The AG rejected it precisely because two competing measures cannot share an identical popular name during simultaneous circulation. The duplicate-name problem in 2015-035 only existed because the AG had certified this version (2015-029) first.
Common questions
What does AG certification actually accomplish?
Certification clears the proposal for petition circulation. Once the AG certifies the popular name and ballot title, the sponsor may begin gathering signatures. For an initiated act, the threshold is 8% of legal voters (Arkansas Constitution Art. 5, § 1). For an initiated constitutional amendment, 10%. For a referendum on a general act, 6%. Certification does not put the act on the ballot, and does not signal AG support for the underlying policy.
Why did the AG rewrite Mr. Weir's ballot title?
Two main reasons. First, the submitted version had typos: "enjoymant" should be "enjoyment" and "accomodation" should be "accommodation." Putting those typos on circulated petitions and the official ballot would be a problem. Second, the submitted title described what protections the act would add but did not name the existing protected classes (race, religion, national origin, gender, disability) the act would not change. Without that context, a voter could not tell whether the act was adding to an existing scheme or creating something new from scratch. The substituted title fixed both issues without altering the substantive policy.
What was the underlying change to the Civil Rights Act?
A.C.A. § 16-123-107(a) lists the bases on which discrimination is a civil rights violation in Arkansas. As of 2015, that list was "race, religion, national origin, gender, or the presence of any sensory, mental, or physical disability." The proposal would have inserted "sexual orientation, gender identity" between "gender" and "or the presence of any sensory, mental, or physical disability." The categories of conduct covered (employment, public accommodations, property, credit, voting) were unchanged.
Did this initiated act make it to the ballot?
No. After the AG certified the popular name and substituted ballot title in this opinion, the sponsor still had to gather enough valid signatures under the constitutional thresholds. The historical record indicates that this particular proposal did not qualify for a statewide ballot. Confirm current Arkansas civil-rights statutes against the current Arkansas Code before relying on any specific protected-class list.
What is the timing relationship between this opinion and Op. 2015-035?
This opinion (2015-029) certified a popular name and a substituted ballot title on March 31, 2015. Op. 2015-035, issued April 16, 2015, rejected a different proposal from the same sponsor that tried to reuse the identical popular name to cover a broader set of protected classes. The AG concluded the duplicate name across two distinct measures would confuse voters.
Citations
The opinion applies A.C.A. § 7-9-107 (AG certification), A.C.A. § 7-9-107(b) (substitution power), A.C.A. § 7-9-108 (instructions to canvassers and signers), A.C.A. § 7-5-522 (booth time limit), A.C.A. § 5-55-601(b) (petition fraud), and A.C.A. § 16-123-107(a) (the Civil Rights Act provision to be amended). The Arkansas Supreme Court cases cited follow the standard ballot-title line: Kurrus v. Priest (2000), Donovan v. Priest (1996), Plugge v. McCuen (1992), Arkansas Women's Political Caucus v. Riviere (1984), Pafford v. Hall (1950), Chaney v. Bryant (1976), Moore v. Hall (1958), May v. Daniels (2004), Becker v. Riviere (1980), Bailey v. McCuen (1994), Becker v. McCuen (1990), Christian Civic Action Committee v. McCuen (1994), and Roberts v. Priest (2000).
Source
Original opinion text
Opinion No. 2015-029
March 31, 2015
Jack Michael Weir III
721 South Booker Street
Little Rock, Arkansas 72205
Dear Mr. Weir:
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
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.
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:
Popular Name
AN AMENDMENT TO THE ARKANSAS CIVIL RIGHTS ACT OF 1993
Ballot Title
A proposed act to amend Arkansas Code § 16-123-107(a) under the
Arkansas Civil Rights Act of 1993 to include sexual orientation and
gender identity to the groups protected from discrimination; to have
the right to obtain and hold employment without discrimination; to
have the right to full enjoymant [sic] of any of the accommodations,
advantages, facilities, or privileges of any place of public resort,
accomodation [sic], assemblage, or amusement; to have the right to
engage in property transactions without discrimination; to have the
right to engage in credit and other contractual transactions without
discrimination; and the right to vote and participate fully in the
political process.
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.
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 measure.
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 a more suitable, complete,
and correct popular name and ballot title should be substituted for those proposed.
The following is hereby certified in order to ensure that, when construed together,
the popular name and ballot title accurately set forth the purpose of the proposed
measure:
Popular Name
An Act Amending the Arkansas Civil Rights Act of 1993
Ballot Title
This Act amends the Arkansas Civil Rights Act of 1993 to add a
right to be free from discrimination on the basis of both sexual
orientation and gender identity. The Arkansas Civil Rights Act
currently gives people the right to be free from discrimination on the
basis of race, religion, national origin, gender, or disability. The right
to be free from discrimination includes (1) the right to obtain and
hold employment without discrimination; (2) the right to the full
enjoyment of any of the accommodations, advantages, facilities, or
privileges of any place of public resort, accommodation, assemblage,
or amusement; (3) the right to engage in property transactions
without discrimination; (4) the right to engage in credit and other
contractual transactions without discrimination; and (5) the right to
vote and participate fully in the political process.
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 Arkansas
Constitution and the associated penalties for violations. Enclosed herewith, over
the signature of the Attorney General, are instructions that should be incorporated
in your petition prior to circulation.
Attorney General
LR/cyh
Enclosures
Get today's answer for your situation
You just read a 2015 opinion on this question. Ezel checks the current Arkansas statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.