Did the AG certify the popular name and ballot title for the Arkansas Industrial Hemp and Medical Cannabis Amendment?
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Plain-English summary
Robert L. Reed submitted his proposed Arkansas Industrial Hemp and Medical Cannabis Amendment for AG certification. This was at least the eleventh iteration: Reed had previously submitted ten similar measures, most of which the AG had rejected. Op. 2014-056 had certified one version with a substituted ballot title. The current opinion rejects the latest revision.
The text of the amendment would have legalized cultivation, manufacturing, distribution, sale, possession, and use of the cannabis plant (genus cannabis) and all products derived from it in every county of Arkansas, effective April 20, 2017. It defined "industrial hemp" as parts of the cannabis plant containing 0.3% or less Delta-9-THC by dry weight, and "medical cannabis" as parts containing more than 0.3% Delta-9-THC. Either could be regulated but not prohibited by the General Assembly.
The AG identified two related defects.
First, the modifiers "industrial" and "medical" were misleading. Reed used "industrial hemp" and "medical cannabis" as if they described limited categories tied to specific uses. But the underlying text actually authorized cultivation, distribution, and use without limiting either substance to particular uses. The text simultaneously said the cannabis plant "may be regulated but not prohibited" by the General Assembly and authorized "personal, industrial, or commercial use" of both hemp and cannabis. Voters reading "industrial hemp" and "medical cannabis" in the ballot title would erroneously conclude that hemp could be used only for industry and cannabis only for medicine. The text said otherwise.
Second, the General Assembly's regulatory power was ambiguous on the same point. The proposal said the legislature could regulate "industrial" hemp and "medical" cannabis, but also authorized "personal, industrial, or commercial use" generally. Read together, the text was unclear whether the General Assembly could regulate beyond the industrial/medical categories or whether the modifiers were meant to limit legislative authority. The AG could not discern the intent.
Third, the AG flagged ongoing syntax errors: "Amending the Arkansas Constitution is a serious matter that merits greater attention to detail than evidenced by the proposal, which still contains several errors of syntax that tend to obscure its meaning."
The AG could not rewrite the ballot title to fix these issues because they originated in the underlying text. Roberts v. Priest (2000) had confirmed that when "[t]he text of the proposed amendment itself contribute[s] to the confusion," the AG cannot solve the problem with better title language. The AG must reject and require redrafting.
The opinion is part of an extended series of AG rejections of Reed's hemp/cannabis amendment proposals (Op. 2015-032, 2014-043, 2014-037, 2014-034, 2014-022, 2014-014, 2013-093, 2013-021, 2011-059, and 2011-031, plus the partially-certified 2014-056). The persistence of the proposals and the persistence of the AG's rejections illustrate how hard it is to draft a clean constitutional amendment on a contested policy subject when the drafting itself has gaps.
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
Arkansas's process for ballot initiatives and constitutional amendments requires AG certification before petitions can be circulated. The substantive standard (popular name and ballot title that honestly, intelligibly, and fairly set forth the purpose) is the same for amendments as for initiated acts. § 7-9-107 gives the AG three options: certify as submitted, substitute and certify, or reject.
The Arkansas Supreme Court has repeatedly held that ballot titles must be free from misleading tendency. Bailey v. McCuen (1994) is the foundational case: a title that omits an essential fact giving voters serious ground for reflection, or that contains misleading tendency by amplification or omission, is legally insufficient.
The "industrial" and "medical" modifiers were misleading in the classic Bailey sense. A voter reading "Arkansas Industrial Hemp and Medical Cannabis Amendment" would expect the proposal to legalize hemp for industrial uses (rope, fiber, cosmetics) and cannabis for medical uses (prescriptions, dispensaries). The actual text was broader: legalizing both for any use, with a 0.3% Delta-9-THC threshold separating the two categories. The misleading framing matters because it would draw voter support from people who oppose recreational use but support industrial and medical applications. The misleading character was a substantial obstacle to certification.
Roberts v. Priest (2000) is the critical case for the AG's decision to reject rather than rewrite. When the text itself contributes to the confusion, no rewriting of the title can fix the problem. The AG must reject and require text redrafting.
The substance of the proposal (legalize cannabis in every county) was unusual because it would have created a constitutional right to cannabis use that the General Assembly could regulate but not prohibit. This goes further than typical medical-cannabis or even recreational-cannabis legalization, which preserve more legislative discretion. Reed's framing made the constitutional permissiveness clear but used the "industrial" and "medical" modifiers in a way that obscured the breadth.
Common questions
Were the modifiers "industrial" and "medical" wrong?
Not by themselves. They are accepted policy categories. The problem was using them as if they limited uses when the underlying text did not actually limit uses. A title that says "industrial" but a text that allows "personal, industrial, or commercial" use mismatch.
Could the proponent have fixed the problem by removing the modifiers?
That might have helped if the text were rewritten consistently. The proposal would then have been about cannabis (genus cannabis) generally, with a Delta-9-THC threshold distinguishing two regulatory categories without implying use limits. Whether the proponent ever revised in that direction is not addressed in this opinion.
What were the syntax errors?
The opinion didn't enumerate them. The AG flagged that "the proposal ... still contains several errors of syntax that tend to obscure its meaning" and urged careful review before resubmission.
Did Arkansas eventually legalize medical cannabis?
Yes, Arkansas voters approved Issue 6, the Arkansas Medical Marijuana Amendment, in November 2016, which created a constitutional right to medical use of cannabis. That measure was a different proposal with different proponents (the Arkansans for Compassionate Care committee, not Robert Reed).
Why did the AG mention Op. 2014-056?
Op. 2014-056 was the only one of Reed's many proposals that had survived AG review at the time (with a substituted ballot title). Reed's pattern of submission and rejection makes the AG's reference to 2014-056 a way of recognizing that the AG had previously been able to certify a version, but the current version had backslid.
What's the difference between this proposal and a typical medical-marijuana proposal?
This proposal would have constitutionalized cannabis legalization at all THC levels (with the General Assembly authorized to regulate but not prohibit). Typical medical-marijuana proposals are narrower: legalize cannabis only for medical use, under licensing and dispensary frameworks, with more legislative discretion to set the rules.
Source
Original opinion text
Opinion No. 2015-041
May 1, 2015
Robert L. Reed
Post Office Box 111
Dennard, Arkansas 72629
Dear Mr. Reed:
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 constitutional amendment. You previously submitted similar measures, most of which this office rejected pursuant to section 7-9-107(c). (See Op. Att'y Gen. Nos. 2015-032, 2014-043, 2014-037, 2014-034, 2014-022, 2014-014, 2013-093, 2013-021, 2011-059 and 2011-031.) In Op. Att'y Gen. No. 2014-056, this office certified your proposed popular name and a substituted ballot title. 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 INDUSTRIAL HEMP AND MEDICAL CANNABIS AMENDMENT
Ballot Title
An amendment proposed by the people to the Arkansas Constitution to provide effective April 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, "industrial hemp" is defined as any part of the cannabis plant (genus cannabis), living or not, containing three tenths of one percent (.3%) or less, by dry weight or three tenths of one percent (.3%) by volume for liquids, Delta-9-Tetrahydrocannabinol (Delta-9-THC); "medical cannabis" is defined as any part of the cannabis plant (genus cannabis), living or not, containing greater than three tenths of one percent (.3%), by dry weight or volume for liquids, 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 that they conflict with [t]his amendment. Preemptive federal law may remain in effect unless altered by congress.
[The remainder of the opinion sets out the standard ballot-title sufficiency principles from Arkansas Women's Political Caucus v. Riviere, Pafford v. Hall, Chaney v. Bryant, Moore v. Hall, May v. Daniels, Becker v. Riviere, Bailey v. McCuen, Becker v. McCuen, Christian Civic Action Committee v. McCuen, and Roberts v. Priest.]
Having analyzed your proposed amendment, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed popular name and ballot title due to ambiguities in the text of your proposed measure. A number of additions or changes to your ballot title are, in my view, necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).
I refer to the following ambiguities:
- The proposal continues to refer to "industrial" hemp and "medical" cannabis without limiting those substances' uses to industry and medicine. Those modifiers introduce ambiguity about how hemp and cannabis could be used under the proposal. They are also misleading in that they would cause voters to erroneously conclude that the proposal would limit the use of hemp to industry and the use of cannabis to medicine.
- The proposal authorizes the General Assembly to regulate the cultivation, etc., of "industrial" hemp and "medical" cannabis "for personal, industrial, or commercial use ...." The proposal's use of the modifiers "industrial" and "medical" suggests, but leaves unclear, that the General Assembly's power would or could be limited to regulation of hemp for industrial uses and of cannabis for medical uses, while the phrase "for personal, industrial, or commercial use" suggests otherwise. It is impossible to clearly discern the proposal's intent or effect in this regard.
- Amending the Arkansas Constitution is a serious matter that merits greater attention to detail than evidenced by the proposal, which still contains several errors of syntax that tend to obscure its meaning. I again urge you to review the proposal carefully to locate and correct such errors in the event you redesign and resubmit the proposal.
My office in the certification of ballot titles and popular names does not address 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.
Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title. You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.
Sincerely,
LESLIE RUTLEDGE
LR/cyh
Enclosure
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