Did the Arkansas AG certify the proposed Self-Defense, Weapons Carry, and Public Safety Amendment?

Plain-English summary

David Brennan, sponsor of a proposed Self-Defense, Weapons Carry, and Public Safety Amendment, submitted his popular name and ballot title to the Attorney General for certification under Ark. Code Ann. § 7-9-107. The AG rejected both and instructed him to redesign the measure.

The popular name failed on partisan-coloring grounds. The Arkansas Supreme Court treats "inviting catch-words" as impermissible partisan framing because they hand the voter a conclusion. Few voters would oppose "self-defense" or "public safety" in the abstract, regardless of how they felt about the measure's specific rules. The AG cited Arkansas Women's Political Caucus v. Riviere (1984) for the principle.

The ballot title was worse. The AG identified two distinct structural problems plus 12 substantive ambiguities in the text of the amendment itself:

• Hortatory and non-operative provisions appeared first, with the controversial provisions buried in the middle and end. Ward v. Priest (2002) treats that ordering as effectively concealing controversy.
• The title did not intelligibly summarize what the proposal would do or how current law would change, in part because the amendment text was internally ambiguous.

The 12 ambiguities the AG flagged covered: the strange definition of "public space" (which included some privately-owned property); the undefined terms "openly carry," "weapons," "private space," "terrorism," and "residence"; an inconsistency between strict liability and a duty of care for secured-checkpoint operators; an "implement of terror" definition that could include a sharp stick while the screening equipment couldn't detect wood; uncertain interaction with sovereign immunity; uncertain "implementation" authority for political subdivisions; and an unclear "duty to retreat" relationship with then-current Ark. Code Ann. § 5-2-607.

Because the underlying text was ambiguous, the AG concluded she could not even craft a substitute ballot title under § 7-9-107(b). She rejected outright and told the sponsor to redesign.

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

Ark. Code Ann. § 7-9-107 gives the Attorney General three options when reviewing a popular name and ballot title: certify as submitted, substitute and certify revised language, or reject outright if the submission is "sufficiently misleading." Where the underlying amendment text is itself ambiguous, the AG has no usable raw material to draft a substitute, so rejection is the only option.

The Arkansas Supreme Court has built up a body of doctrine on partisan-coloring and intelligibility:

• A popular name or ballot title must not contain "inviting catch-words" that hand the voter a built-in conclusion (Arkansas Women's Political Caucus v. Riviere).
• A title cannot "effectively conceal the controversial aspects of the proposal" by burying them in structure (Ward v. Priest).
• A title must intelligibly describe the scope and significance of the proposed change in law (Christian Civic Action Committee v. McCuen; Bailey v. McCuen).
• The title need not be perfect or anticipate every legal argument, but it must be free of "amplification, omission, or fallacy" (Bailey v. McCuen).
• Internal inconsistencies in the proposed amendment text itself can defeat any ballot title because they prevent neutral summarization (Roberts v. Priest).

The amendment at issue would have declared self-defense a "fundamental natural right above all other rights including property rights," banned weapons prohibitions in unsecured "public spaces" (defined to include some privately-owned property), required secured-checkpoint operators to carry $1M to $10M liability insurance, declared an open-carry right, kept the existing concealed-carry licensing scheme, declared a duty to retreat in public spaces with exceptions for self-defense and acts of war or terrorism, and made "public alarm" carrying a felony.

Common questions

Was this a stand-your-ground or anti-stand-your-ground amendment?

It was explicitly anti-stand-your-ground. The proposal kept a duty to retreat in public spaces, with carve-outs only for defense against unlawful force or acts of war or terrorism. The AG's rejection had nothing to do with whether duty-to-retreat is good policy; it focused on whether the ballot title described the rules clearly.

Why is "self-defense" a partisan catch-word?

Under Arkansas Supreme Court doctrine, a popular name is improperly tinged with partisan coloring if it hands the voter a ready-made conclusion based on the title alone. "Self-defense" and "public safety" are values almost no voter would oppose in the abstract, even if the voter strongly opposed the specific rules in the underlying measure. Johnson v. Hall (1958), where the court rejected a name calling a measure "An Amendment Prohibiting Operation of Trains with Unsafe and Inadequate Crews," is the precedent.

What was wrong with the "public space" definition?

It included "any publicly or privately owned space, other than a residence used solely as a residence, into which the general public or more than one person is invited, welcomed, or allowed for any purpose." That swept in apartment buildings, churches, malls, bars, hospitals, even private buses. The AG flagged that the term "public" was being used in a non-standard way and that it interacted badly with other clauses that talked about owners or proprietors of "public spaces."

Why didn't the AG just substitute a better ballot title?

Under § 7-9-107(b), substitution is possible only when the underlying amendment text is clear enough to summarize. The AG concluded the amendment itself was internally ambiguous on too many key points, so substitution was impossible. The sponsor needed to fix the amendment text first, then resubmit.

Could the sponsor try again?

Yes. Section 7-9-107(c) allows resubmission. The AG explicitly told Brennan he could resubmit with revisions.

Did the AG take a position on whether the amendment was good policy or constitutional?

No. The AG repeatedly emphasized she was not assessing merits, philosophy, ideology, or constitutionality. Her job is limited to whether the popular name and ballot title meet the certification standards.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2013) (certification process)
• Ark. Code Ann. § 7-9-107(b) (substitute language authority)
• Ark. Code Ann. § 7-9-107(c) (resubmission)
• Ark. Code Ann. § 5-2-607(b)(1)(B)(ii) (as amended by Act 828 of 2015) (duty-to-retreat carve-out for dwelling and curtilage)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984) (inviting catch-words)
• Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884 (2002) (concealment via structure)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies defeat ballot titles)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (intelligibility requirement)
• Johnson v. Hall, 229 Ark. 400, 316 S.W.2d 194 (1958) (partisan name rejected)
• Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008) (declining to interpret non-self-executing measures)

Source

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

Original opinion text

Opinion No. 2015-106
September 3, 2015
David Brennan, Sponsor
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Self-Defense, Weapons Carry & Public Safety Amendment
1560 W Beebe-Capps, Suite C-109
Searcy, AR 72143
Dear Mr. Brennan:

I am writing 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.

At the outset, I wish to make clear to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not, consider the merits of the measure when making my determination to certify or reject a popular name and ballot title.

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.

Ark. Code Ann. § 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. 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.

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2013), of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name
Self-Defense, Weapons Carry, and Public Safety Amendment

Ballot Title
an Amendment proposed by the PEOPLE of the STATE OF ARKANSAS, effective immediately upon passage, to protect the right of self-defense by: 1. Declaring that the right of self-defense is essential to liberty, inseparable from and essential to the right to life, is a fundamental natural right above all other rights including property rights, is both collective and individual, and shall not be violated, infringed, or abridged; 2. Defining a public space as any publicly or privately owned space, other than a residence used solely as a residence, into which the general public or more than one person is invited, welcomed, or allowed for any purpose including but not limited to governmental, educational, residential, medical, commercial, social, religious, or recreational, including but not limited to government buildings, city and state parks, public and private schools, colleges, and universities, malls, stores, liquor stores, bars, night clubs, sports and entertainment venues, convention centers, hospitals, apartment complexes, and churches as well as any public or private bus or shuttle. 3. Declaring that the right to openly carry weapons in both private and public spaces is the most fundamental aspect of the right to self-defense and therefore, while subject to traditional state and federal restrictions on classes of persons who may not legally possess certain weapons as well as bans on student carry by early childhood, primary, and secondary schools, shall not be otherwise violated, infringed, or abridged; 4. Extending the right to self-defense and the right to openly carry weapons to all public spaces not protected by security screening checkpoints which prevent the passage of all weapons except those carried by law enforcement officers; 5. Declaring the concealed carrying of weapons a matter for regulation by state statute as deemed appropriate by the General Assembly by act or the people by initiative, thereby leaving in place the license concealed carry framework established by the General Assembly as the General Assembly or the people may from time to time amend it or may abolish it; and 6. Prohibiting bans on weapons in public spaces not protected by security screening checkpoints preventing the passage of all weapons except those carried by law enforcement officers, establishing liability for persons and other entities securing their premises an banning weapons, and requiring liability insurance for secured gun-free zones; and to protect the public safety and security from the unlawful and irresponsible public use, possession, or open carrying of weapons by: 1. Declaring a duty, in any public space, to retreat from danger and not use force or deadly force if complete safety can reasonably be had by said retreat, thereby not making Arkansas a "stand your ground" state; 2. Providing that no such duty to retreat shall exist where the person using force or deadly force reasonably believes the use of such force to be necessary to the defense of the person or another or others from the unlawful use of force or deadly force against them; 3. Declaring that the possession or carrying of a weapon in a manner calculated to cause public alarm or with the purpose to create public spectacle shall be unlawful and directing that the General Assembly, at its next regular or extraordinary session following the passage of this Amendment, establish the nature of such offenses and the penalties therefore, provided that the possession or carrying of a weapon in a manner calculated to cause public alarm shall be a felony and the possession or carrying of a weapon with the purpose to create public spectacle shall be a misdemeanor; 4. Providing that, though no one factor alone shall be controlling, the General Assembly is authorized and directed to provide for the consideration, in determining whether a person has unlawfully possessed or carried a weapon in a manner calculated to cause public alarm, whether the weapon is brandished or otherwise manipulated for aggression or for spectacle and whether a person carrying a long gun has access to a handgun which could have been carried, and to provide for the consideration, in determining whether a person has unlawfully possessed or carried a weapon with the purpose to create public spectacle, the above factors as well as whether the person carrying the weapon or another person associated with that person documents the carrying of the weapon or any encounter with law enforcement or other persons via audio or video recording or photography with intent to publish such documentation; and 5. Providing that the mere act of carrying a weapon openly in a public space while going about one's business, worship, recreation, or other lawful activity without evidence of intent to cause public alarm or purpose to create public spectacle shall not justify an arrest, charge, indictment, or conviction for possession or carrying of a weapon in a manner calculated to cause public alarm or with purpose to create public spectacle, and that neither cultural nor individual sensitivity to the sight of weapons in public spaces nor feigned alarm shall form the basis of an arrest, charge, indictment, or conviction for such offense; and providing that existing laws shall be read in harmony with the Amendment where possible and given as much effect as possible but that all laws or parts of laws inconsistent with this Amendment shall be void.

RESPONSE

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 Arkansas Supreme 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 of any misleading tendency whether by amplification, omission, or fallacy, and 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 Arkansas Supreme 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 has 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 (1) clarification or removal of the ambiguities in the proposed amendment itself, and (2) conformance of the popular name and ballot title to the newly worded amendment.

Popular Name

As noted above, the Arkansas Supreme Court has held that a popular name must not be misleading or give partisan coloring to the proposal's merit. Given the context here, the words "public safety" violate this rule. Few if any voters would be opposed, in the abstract, to "public safety," even if they might be significantly opposed to the details of this proposal (which they may or may not equate with increased public safety). Therefore, in my opinion, your proposed popular name is deficient because it refers to the measure as a "Public Safety Amendment."

Moreover, calling the proposal a "Self-Defense" amendment suffers from a similar deficiency. Very few if any voters would vote against the abstract idea of "self-defense," even if they might be significantly opposed to the details of self-defense rules in the actual language of the proposed amendment. The words are essentially "inviting catch words," "which gives the voter only the impression the proponents of the amendment want them to have." According to the Arkansas Supreme Court, this constitutes an impermissible attempt to influence voters to support the amendment. Like "public safety," the reference to this proposal as a "self-defense" amendment presents a ready-made conclusion to the voter, rather than relying upon the voter to reach an independent determination based on the substance of the proposed amendment.

Ballot Title

As discussed above, the ballot title must impartially summarize the proposal and give an intelligible idea of the scope and significance of proposed changes in the law.

In my view, your proposed ballot title suffers from at least two distinct deficiencies. First, by placing what appears to be non-operative and hortatory statements as the first three provisions discussed in your ballot title, while relegating more substantive, potentially controversial provisions to the middle and end of the ballot title, you have run afoul of the Arkansas Supreme Court's statement that a ballot title should not "effectively conceal[] the controversial aspects of the proposal." I understand that you structured the sections of the ballot title to correspond with the sections of the full text of the amendment, but that organizational structure is not required and does not excuse a ballot title that effectively conceals the more controversial aspects of the amendment.

Second, the ballot title does not give an intelligible idea of the scope and significance of proposed changes in the law. It fails to explain in adequate detail the provision's substantive provisions and how precisely adoption of the proposal would change current law. The problems may well be caused by, and are certainly compounded by, ambiguities in the text of your proposed amendment itself. The AG then listed twelve specific ambiguities (covering the definitions of "public space," "openly carry," "weapons," "private space," "authorized personnel," "implement of terror," "terrorism," and "residence"; the relationship between strict liability and a duty of care for secured-checkpoint operators; the scope of political-subdivision implementation authority; the suspension mechanism for businesses out of compliance with the insurance requirement; and the interaction with the then-current duty-to-retreat statute, Ark. Code Ann. § 5-2-607).

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 in the text of your proposed amendment itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you will need to redesign the proposed measure and ballot title, and then resubmit for certification.

CONCLUSION

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on another review of any revisions of your 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