Did the Arkansas AG certify the first Arkansas Term Limits Amendment of 2016 proposal in June 2015?

Plain-English summary

Brenda Taylor submitted what she titled the "Arkansas Term Limits Amendment of 2016." Like the later version certified in Opinion 2015-089, this draft would have replaced the 16-year aggregate cap that Amendment 94 had added to the Arkansas Constitution in 2014 with a stricter regime: three two-year House terms, two four-year Senate terms, and ten years of combined service in the General Assembly. It would also have purported to limit the legislature's authority to propose future amendments to term limits, reserving that power to citizen initiatives.

The AG rejected this version. The opinion identified three text ambiguities and three substantive gaps in how the ballot title described the changes.

Ambiguities in the proposed amendment text:

1. Misplaced enacting clause. The proposal opened with "Be it enacted by the people of the State of Arkansas," the enacting language Article 5, Section 1 requires for "bills" initiated by the people (i.e., initiated acts). There is no such requirement for citizen-initiated constitutional amendments. Including the bills enacting clause in a proposed amendment confuses voters about whether they are being asked to enact a bill or amend the constitution, citing United States Term Limits, Inc. v. Hill.

2. Wrong constitutional location targeted. The proposal said it amended Ark. Const. art. 5, § 2 (which addresses only how the House of Representatives is chosen). The substantive content the proposal would add (caps on Senate service, repeal of Amendment 94's 16-year cap, etc.) actually involves Amendment 73 (as amended by Amendment 94 in 2014), not Article 5, § 2. The proposal also included subsection (b) on the Senate as if it were already part of § 2, but that language is in Article 5, § 3. And it tried to strike language from a nonexistent subsection (c) of § 2, where the 16-year limit actually lives in Amendment 73 as added by Amendment 94, § 3.

3. Vague exception for sitting officeholders. The ballot title said the amendment "will not cut short or invalidate a term to which a person was elected prior to January 1, 2017." The AG could not tell whether this referred only to members who would win re-election under Amendment 94 in November 2016, or to any legislator elected after January 1, 1993 under Amendment 73. The proposal lacked any clear language about when the counting of terms or years of service begins. United States Term Limits, Inc. v. Hill resolved the analogous Amendment 73 ambiguity by reading the amendment to apply prospectively to service starting January 1, 1993.

Substantive gaps in the ballot title:

1. The proposal would repeal Section 3 of Amendment 94's 16-year aggregate limit and impose a stricter ten-year cap. The ballot title didn't describe this fundamental change.

2. The proposal's text said "a future term after apportionment will be considered to be a four-year term." This was an undeclared change: under current Amendment 94, two-year Senate terms served after redistricting reapportionment are excluded from the years-of-service calculation. The proposal would reverse that exclusion without telling voters.

3. The proposal would amend by implication Article 19, § 22 (the provision letting the legislature propose constitutional amendments) by stripping the legislature's power to propose any future term-limits amendment. The ballot title didn't say so.

Bradley v. Hall sets the test: the ballot title's adequacy depends on the degree to which it enlightens voters about the changes the amendment would make. The AG found this title fell short of that standard, both because the proposal text was ambiguous and because the ballot title omitted the substantive changes the proposal would impose.

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.

Common questions

What's the difference between an enacting clause for a bill and a clause for an amendment?

Article 5, Section 1 of the Arkansas Constitution requires "bills" initiated by the people (i.e., initiated acts) to include an enacting clause that begins "Be it enacted by the people of the State of Arkansas." Constitutional amendments do not require that language. United States Term Limits, Inc. v. Hill explains that mixing the formats creates voter confusion about what kind of measure is being proposed.

What does Amendment 94 do, and how does Amendment 73 relate?

Amendment 73 was the original Arkansas term-limits amendment, adopted in 1992 and taking effect January 1, 1993. It capped service in the House and Senate separately. Amendment 94, adopted in 2014, repealed those separate caps and replaced them with a single 16-year aggregate cap on combined House and Senate service. So most of the operative term-limits language now sits in Amendment 73 § 2(c) (added by Amendment 94 § 3), not in Article 5, § 2.

Why was the "a future term after apportionment will be considered to be a four-year term" language a problem?

Because under current Amendment 94, a two-year Senate term that a senator serves as a result of a Senate-wide election after redistricting is not counted toward the 16-year limit. The proposal would have flipped that and counted those two-year terms as four-year terms for the new ten-year cap, effectively shortening the eligible service further. That change matters and should be in the ballot title.

What does Bradley v. Hall require of a ballot title?

That it describe the changes the proposed amendment would make. As the Bradley opinion put it, the voter "in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new." The ballot title's job is to inform the voter about that choice. Its adequacy is directly related to the degree to which it enlightens voters about the changes.

Was this proposal later certified after revision?

Yes. The sponsor submitted a revised version that the AG substituted and certified in Opinion 2015-089, with corrected cross-references and a more complete ballot title.

Background and statutory framework

The AG's review authority comes from Ark. Code Ann. § 7-9-107 (substitution under (b), rejection under (c)). Section 7-5-522's five-minute booth-time limit grounds the brief-and-concise requirement.

Substantive case law: Pafford v. Hall, Becker v. Riviere, Chaney v. Bryant, Moore v. Hall, Bailey v. McCuen, Becker v. McCuen, May v. Daniels, Christian Civic Action Committee v. McCuen, and Roberts v. Priest collectively articulate the ballot-title sufficiency framework. Arkansas Women's Political Caucus v. Riviere gives the standard. Kurrus, Donovan, and Plugge provide the "clearly contrary to law" carveout. Bradley v. Hall is the case the AG quoted at length on the duty to inform voters about changes in law. United States Term Limits, Inc. v. Hill addressed the enacting-clause problem and the prospective-application principle under Amendment 73. Drennen v. Bennett provides the canon that constitutional amendments operate prospectively unless the language or purpose says otherwise. Williams v. Elrod and Moore v. McCuen provide the background on the staggered-Senate-term mechanism and the rational basis for it.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2013)
• Ark. Code Ann. § 7-9-107(b)
• Ark. Code Ann. § 7-9-107(c)
• Ark. Code Ann. § 7-5-522
• Ark. Const. art. 5, § 1 (Amendment 7)
• Ark. Const. art. 5, § 2
• Ark. Const. art. 5, § 3
• Ark. Const. art. 5, § 6
• Ark. Const. art. 8, § 6
• Ark. Const. art. 19, § 22
• Ark. Const. amend. 23, 45
• Ark. Const. amend. 73 § 2, § 6
• Ark. Const. amend. 94, § 3
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• 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)
• 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)
• Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952)
• United States Term Limits, Inc. v. Hill, 316 Ark. 251, 262-63, 872 S.W.2d 349, 355 (1994)
• Drennen v. Bennett, 230 Ark. 330, 322 S.W.2d 585 (1959)
• Williams v. Elrod, 244 Ark. 671, 426 S.W.2d 797 (1968)
• Moore v. McCuen, 317 Ark. 105, 109, 876 S.W.2d 237, 239 (1994)
• Op. Att'y Gen. 2013-039
• Op. Att'y Gen. 2014-134

Source

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

Original opinion text

Opinion No. 2015-065
June 25, 2015

Brenda V. Taylor, Esq.
Brenda Vassaur Taylor, P.A.
P.O. Box 8068
Fayetteville, AR 72703

Dear Mrs. Taylor:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Please note that 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 Ark. Code Ann. § 7-9-107 (Supp. 2013), of the popular name and ballot title for a proposed constitutional amendment. You have submitted the following popular name and ballot title for my review:

Popular Name

ARKANSAS TERM LIMITS AMENDMENT OF 2016

Ballot Title

A proposed amendment to Arkansas Constitution concerning term limits for the Arkansas General Assembly; to provide that service shall not exceed three (3) two-year terms in the House of Representatives, two (2) four-year terms in the Senate, or ten (10) years of combined service in the House of Representatives and Senate; to clarify that a person is ineligible for election to the Senate if the term would cause the person to exceed the ten-year limit; to exclude, from the computation of whether a limit has been reached, a partial term to fill a vacancy; to provide that this amendment will not cut short or invalidate a term to which a person was elected prior to January 1, 2017; to provide that Article 5, section 2 may be amended only by a constitutional amendment initiated by the people; to declare that if any provision in Article 5, section 2 should be held invalid, the remainder shall stand.

[The opinion then sets out the standard ballot-title framework (purpose of review, role of the popular name, requirements for the ballot title, the essential-fact rule, the brief-and-concise rule, the misleading-tendency standard, and Roberts v. Priest's rule on internal inconsistencies in the proposed measure).]

Having analyzed your proposed amendment, as well as your proposed popular name and ballot title in line with the above precepts, it is my conclusion that I must reject your proposed ballot title due to deficiencies in the text of your proposed measure, as well as a failure to summarize in your ballot title how your measure would change current law. A number of additions or changes 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 deficiencies. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b).

I refer to the following ambiguities:

1. [Misplaced enacting clause.] According to the text of your proposal, you are seeking to amend the Arkansas Constitution. However, your proposed constitutional amendment includes an "enacting clause" ("Be it enacted by the people of the State of Arkansas"). While Article 5, section 1 of the Arkansas Constitution requires the inclusion of an enacting clause for "bills" initiated by the people (that is, proposed initiated acts), there is no such requirement for constitutional amendments so initiated. The inclusion of an enacting clause that is required for a "bill" in a proposed constitutional amendment makes the proposal ambiguous as to what the voters are being asked to consider, a bill or a constitutional amendment. This could be confusing to the voters.

2. [Wrong constitutional location.] It is clear from the text of your proposal that you wish to amend the Arkansas Constitution with respect to term limits. However, the prefatory language in section 1 of your proposal states that the proposal would amend Article 5, section 2 of the constitution. This reference to this specific part of the constitution makes the text of your proposal ambiguous for the following reasons. You have included language that by virtue of its not being underlined suggests that it is already a part of Article 5, section 2 (your subsection (b) concerning the Arkansas Senate). That language is not found in Article 5, section 2, but is instead a part of Article 5, section 3. Similarly, the end of your text contains stricken language regarding legislators' years of service limitations in a way that suggests that it is subsection (c) of Article 5, section 2. However, there is no subsection (c) of Article 5, section 2, and thus no such language could be stricken from it. The years-of-service limitation language instead was made a part of Amendment 73, section 2 with the passage of Amendment 94 in 2014. This gives rise to uncertainty as to the precise changes in law under your proposal, including the part of the constitution actually being amended.

3. [Vague effective date.] Your ballot title states, as does the text in your proposed subsection (c)(3), that your proposal "will not cut short or invalidate a term to which a person was elected prior to January 1, 2017." I am uncertain what this is intended to convey or to whom it is meant to apply. It might be interpreted to refer only to those legislators who won re-election in November 2016 under the auspices of Amendment 94, but whose terms would run afoul of the terms of your proposal should it be adopted. Or, it might be interpreted to refer to any legislator seeking election after January 1, 1993, per the terms of section 6 of Amendment 73. Uncertainty arises in this regard because there is no language in your measure addressing when the counting of terms or the years of service is to commence, or to which class of legislators or former legislators your proposal applies. [Citing United States Term Limits, Inc. v. Hill, which addressed the analogous Amendment 73 ambiguity by reading the amendment to apply prospectively to periods of service commencing on or after January 1, 1993, citing Drennen v. Bennett.]

The above ambiguities must be clarified so that these important aspects of your proposed measure may be properly reflected in a ballot title that fully and fairly summarizes the measure. Clarifying these ambiguities is also critical to a ballot title that will sufficiently inform the voters about the changes in current law that they are being asked to approve.

In addition to the ambiguities above, I also note several significant changes to the law your proposal would make. As stated above, the ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law. [Citing Bradley v. Hall on the duty to describe changes in the law.] Your proposed ballot title contains no information about the changes brought about by your proposal. Your ballot title must, in my opinion, be redesigned to reflect the following significant changes:

1. As I have previously noted, Section 3 of Amendment 94 appears stricken at the very end of the text of your proposed measure. … This significant change in the law is not reflected in the ballot title you have proposed.

2. The text of your proposed subsection (c)(1)(C)(ii) regarding eligibility for election to the Senate states that a "a future term after apportionment will be considered to be a four-year term." This also represents a significant change in the law of which there is no mention in the ballot title. [Discussing the current Amendment 94 treatment of two-year Senate terms after reapportionment, citing Williams v. Elrod and Moore v. McCuen.]

3. Your proposed new subsection (d), titled simply "Amendment," states that "[t]his Section 2 may be amended only by a constitutional amendment initiated by the people under Arkansas Constitution Article 5, Section 1, as amended by Amendment 7." [P]resumably [this] is intended to prevent the General Assembly from submitting to the voters future proposed constitutional amendments regarding term limits. This too represents a significant change in the law of which the voters must clearly be made aware. … [Y]our proposal would seemingly represent an amendment by implication of Article 19, section 22 of the constitution. This significant change in the law must be adequately summarized for the voters and properly reflected in the ballot title.

Without the necessary information regarding the extent to which your proposal would change current law, it will be impossible for a voter to make an informed "choice between retention of the existing law and the substitution of something new." Your ballot title must be redesigned to reflect these significant changes in current law. I must therefore reject your ballot title as insufficient on this basis, as well as on the basis of the above ambiguities that prevent me from certifying a revised ballot title for your measure.

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 Ark. Code Ann. § 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, after clarification of the matters discussed above, resubmit your proposed constitutional amendment along with a proposed popular name and ballot title at your convenience.

LESLIE RUTLEDGE
Attorney General
LR/cyh

[Enclosure: Popular name "Arkansas Term Limits Amendment of 2016" and the full proposed amendment text, including the misplaced enacting clause and the strikethrough text targeting nonexistent subsections of Article 5, § 2, as set out in the official PDF.]