Did the Arkansas AG approve the 'End Cannabis Prohibition' ballot title for the 2016 initiated constitutional amendment?

Plain-English summary

Robert Reed resubmitted a proposed constitutional amendment titled "End Cannabis Prohibition," which would have made the cultivation, manufacturing, distribution, sale, possession, and use of the cannabis plant lawful in every county effective April 20, 2017. The proposal carried definitions of "hemp" (cannabis material at 0.3 percent or less THC) and "cannabis" (cannabis material above 0.3 percent THC), and left to the General Assembly the power to regulate but not prohibit cannabis used as medicine or as a recreational intoxicant. It expressly preserved any preemptive federal law.

The AG rejected the submission under the authority of Ark. Code Ann. § 7-9-107(c). The rejection was not on the merits of the policy. It rested on four ambiguities in the text:

1. The proposal's definition of "hemp" was missing the connector "containing" before the THC percentage, leaving Section 3 grammatically incomplete and making it unclear what was actually being defined. This in turn made the regulation provisions in Sections 5 and 6 (which referred to "Hemp" and "Cannabis" by the defined terms) ambiguous.

2. Section 2 legalized cannabis "without limitation on the use made thereof," but Section 6 implied the General Assembly was powerless to regulate cannabis except to the extent it was used as medicine or as a recreational intoxicant. A reader could not tell whether non-medicine, non-recreational uses were beyond regulation entirely.

3. The popular name itself raised a question. The amendment text defined itself as the "End Cannabis Prohibition Amendment," matching the popular name. The AG noted that the word "prohibition" carries negative overtones that might lead voters to support the measure based on the popular name alone, which would make it impermissibly partisan under Arkansas case law.

4. The proposal contained a number of syntax and typing errors. The AG flagged this as inconsistent with the care expected of a proposed constitutional amendment and recommended the sponsor revise before resubmitting.

Because of these ambiguities, the AG concluded he could not fairly substitute a more suitable ballot title under § 7-9-107(b). The sponsor was invited to fix the text and resubmit at any time.

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

Why did the AG reject the proposal instead of just rewriting the ballot title?

The AG's substitution power under Ark. Code Ann. § 7-9-107(b) covers ballot titles, not the underlying proposed text. If the proposal's own language is internally inconsistent or grammatically broken, the AG cannot summarize it fairly. The opinion repeatedly cited Roberts v. Priest for the principle that internal inconsistencies in the proposed measure itself doom both certification and any substitution.

What was wrong with the definition of "hemp"?

Section 3 read: "'Hemp' is defined for purposes of this amendment as any part of the cannabis plant (genus cannabis), living or not, three tenths of one percent (.30%), by dry weight, Delta-9-tetrahydrocannabinol(Delta-9-THC)." The missing word "containing" before the percentage left the sentence without a complete verb-object structure. The reader could not tell whether "hemp" was defined as any part of the plant containing the listed THC level, or something else. The ballot title attempted to fix the definition with "containing," but the underlying proposed measure did not.

What was the internal inconsistency between Sections 2 and 6?

Section 2 made all cannabis "lawful within the entire geographic area of each and every county of this State" without limiting the uses. Section 6 then said the General Assembly could regulate, but not prohibit, the cultivation, manufacturing, distribution, sale, possession, and use of "Cannabis" "for use as medicine or recreational intoxicant." That left a gap: was the legislature powerless to regulate cannabis used for other purposes, or was that simply not addressed? A voter would have no way to tell from the proposal which reading was correct.

Why was "End Cannabis Prohibition" potentially partisan?

The Arkansas Supreme Court has held that a popular name cannot be misleading or give partisan coloring to the merits of the proposal. The AG observed that "prohibition" carries negative historical resonance (e.g., alcohol prohibition), and that voters might support a measure simply because they did not want to vote for "prohibition" of anything. That kind of evocative framing can be enough to fail the impartiality requirement set out in cases like Chaney v. Bryant and Moore v. Hall.

Could the sponsor try again?

Yes. Rejection under § 7-9-107(c) is not preclusive. The opinion ended by inviting the sponsor to redesign the measure and ballot title and resubmit at any time. The opinion noted that this submission was itself a redesign of a 2014 proposal previously certified in Op. Att'y Gen. 2014-079.

Background and statutory framework

The opinion applied the same ballot-title framework the AG used across all initiative reviews in this period. Ark. Code Ann. § 7-9-107 requires AG certification of popular names and ballot titles before petitions can be circulated. Subsection (b) authorizes substitution where practicable; subsection (c) authorizes rejection where the proposal is sufficiently misleading or ambiguous. Ark. Code Ann. § 7-5-309's five-minute booth limit is the underlying reason ballot titles must be concise.

On standards, the opinion drew on Arkansas Women's Political Caucus v. Riviere (the certification must ensure the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose); Pafford v. Hall (the popular name's role as a legislative device); Chaney v. Bryant and Moore v. Hall (the impartiality requirement); May v. Daniels (popular name and ballot title read together); Becker v. Riviere, Bailey v. McCuen, Becker v. McCuen, and Christian Civic Action Committee v. McCuen (the impartial-summary, essential-fact, and intelligible-idea-of-scope tests); and Roberts v. Priest (internal inconsistencies in the proposed text defeat certification). The "clearly contrary to law" carveout came from Kurrus v. Priest, Donovan v. Priest, and Plugge v. McCuen.

The proposed amendment would also have repealed all conflicting laws to the extent of conflict, and acknowledged that preemptive federal law could remain in effect unless altered by Congress.

Citations

• Ark. Code Ann. § 7-9-107 (Repl. 2013)
• Ark. Code Ann. § 7-9-107(b)
• Ark. Code Ann. § 7-9-107(c)
• Ark. Code Ann. § 7-5-309
• Op. Att'y Gen. 2014-079
• 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)

Source

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

Original opinion text

Opinion No. 2015-080
July 20, 2015

Robert L. Reed
P.O. Box 111
Dennard, AR 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 Ark. Code Ann. § 7-9-107 (Repl. 2013), of the following popular name and ballot title for a proposed constitutional amendment. On August 5, 2014, this office certified the popular name and ballot title for a similar measure, as evidenced by Op. Att'y Gen. 2014-079. Having altered your proposal's popular name, ballot title, and text, you have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

END CANNABIS PROHIBITION

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, "hemp" is defined as any part of the cannabis plant (genus cannabis), living or not, containing three tenths of one percent (.30%) 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 three tenths of one percent (.30%), by dry weight, Delta-9-Tetrahydrocannabinol(Delta-9-THC). That the cannabis plant (genus cannabis) for use as medicine or recreational intoxicant 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 may remain in effect unless altered by Congress.

The Attorney General is required, pursuant to Ark. Code Ann. § 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.

Section 7-9-107 neither requires nor authorizes the Attorney General 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," the Attorney General will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities.

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 Ark. Code Ann. § 7-9-107(b)); otherwise voters could run afoul of Ark. Code Ann. § 7-5-309'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.

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 Ark. Code Ann. § 7-9-107(b).

I refer to the following ambiguities:

1. The proposal permits the selling, etc., of all cannabis and products derived therefrom but excludes from the defined terms "Hemp" and "Cannabis" material that contains less than 0.3% THC. This omission makes ambiguous the proposal's provisions on regulation set forth in sections 5 and 6 because they relate only to the regulation of "Hemp" and "Cannabis." The omission also results in section 3's being less than a complete sentence.

2. The proposal permits the selling, etc., of all cannabis and products derived therefrom without limitation on the use made thereof, but section 6 implies that the General Assembly is powerless to regulate cannabis except to the extent is it used as medicine or recreational intoxicant.

3. The proposal provides that the amendment shall be called the "'End Cannabis Prohibition' Amendment." The proposed popular name is "End Cannabis Prohibition." While this language in the proposal itself is unobjectionable, you should consider whether the proposed popular name is impermissibly partisan under applicable case law cited herein. It may be that the word "prohibition" carries negative overtones that would prompt voters to vote for the proposal solely on the basis of the popular name.

4. The proposal, including the ballot title, contains a number of errors of syntax and typing that do not evidence the care that should be taken in an attempt to amend the Constitution. You should review the proposal carefully to identify and eliminate such errors in the event you revise 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 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 resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/cyh

[Enclosure: Popular name "END CANNABIS PROHIBITION" and full ballot title and seven-section text of the proposed amendment, including Section 1 (designation), Section 2 (effective date and legalization), Section 3 (defining "Hemp"), Section 4 (defining "Cannabis"), Section 5 (regulation of "Hemp"), Section 6 (regulation of "Cannabis" for medicine or recreational use), and Section 7 (repealing conflicting laws), as set out in the official PDF.]