Did the Arkansas AG certify the Little Red Hen Committee's proposed constitutional amendment to limit legislatively-referred amendments to one per session?

Plain-English summary

Frederick Scott, on behalf of the Little Red Hen Committee, submitted a proposed initiated constitutional amendment to the Attorney General for ballot-title certification under Ark. Code Ann. § 7-9-107. The amendment would change Article 19, Section 22 of the Arkansas Constitution by cutting the number of constitutional amendments the General Assembly can refer to voters at a regular session from three down to one.

The Committee's proposed popular name was "Curtail Legislative Amendments." Its proposed ballot title was a single sentence: "To reduce the number of constitutional amendments permitted the legislature from three to one by modifying Article 19, Section 22."

The AG concluded those did not adequately summarize the amendment for voters and exercised her statutory authority to substitute revised language. The certified popular name became "REDUCING CONSTITUTIONAL AMENDMENTS PROPOSED BY THE GENERAL ASSEMBLY UNDER ARTICLE 19, SECTION 22 OF THE ARKANSAS CONSTITUTION." The certified ballot title spelled out the existing three-amendment cap and the proposed reduction to one, naming Article 19, Section 22 explicitly.

The opinion enclosed standard instructions to canvassers and signers that had to be incorporated into the petition before circulation.

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

Article 19, Section 22 of the Arkansas Constitution authorizes either branch of the General Assembly at a regular session to propose amendments to the constitution. Constitutional text at the time of this opinion capped the total at three per regular session.

Ark. Code Ann. § 7-9-107 requires the Attorney General to certify the popular name and ballot title of every initiated or referred measure before petitions can be circulated. The AG can do one of three things: certify the language as submitted, substitute more suitable language and certify that, or reject the submission entirely if the proposed language is "sufficiently misleading." The AG is not authorized to weigh in on the merits or constitutionality of the proposal itself.

The Arkansas Supreme Court has developed a long body of doctrine on what makes a ballot title adequate. The title must impartially summarize the measure, give voters a fair understanding, and disclose any "essential fact which would give the voter serious ground for reflection" (Bailey v. McCuen). It also has to be brief enough to read inside the five-minute voting-booth limit (§ 7-5-309). The popular name is a "useful legislative device" that must not be misleading or carry partisan coloring (Pafford v. Hall; Chaney v. Bryant).

Where the proposed language is salvageable but imperfect, the AG can substitute a corrected version under § 7-9-107(b). That is what happened here.

Common questions

What was the amendment trying to do?

Reduce the number of constitutional amendments the Arkansas General Assembly could refer to voters at one regular session from three to one. The constitution still allows the General Assembly to propose amendments under Article 19, Section 22; the proposal just lowered the per-session ceiling.

Why did the AG rewrite the popular name?

The submitted name "Curtail Legislative Amendments" was viewed as both vague (it did not explain what kind of legislative amendments) and carrying a hint of partisan framing. The substitute name spelled out the specific constitutional provision being amended and described the measure neutrally.

Did the AG's certification mean the amendment was approved?

No. Certification of the popular name and ballot title is purely a labeling exercise. It does not endorse the merits or signal that the underlying amendment is constitutional. Section 7-9-107 explicitly excludes merits review from the AG's role.

What happens next after certification?

The sponsor incorporates the canvasser instructions enclosed with the opinion and begins gathering signatures. Initiated constitutional amendments require signatures from 10% of legal voters under Article 5, Section 1. The Secretary of State verifies sufficiency, and qualifying measures go on the next general election ballot.

Who was the Little Red Hen Committee?

The ballot committee sponsoring this proposed amendment, organized under Ark. Code Ann. § 7-9-101 et seq. Frederick N. Scott served as the contact person and signed the submission.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2013) (popular name and ballot title certification)
• Ark. Code Ann. § 7-9-107(b) (Supp. 2013) (brevity requirement)
• Ark. Code Ann. § 7-9-108 (canvasser instructions)
• Ark. Code Ann. § 7-5-309 (voting booth five-minute limit)
• Ark. Code Ann. § 7-9-601 (sponsor lists)
• Ark. Code Ann. § 5-55-601(b) (petition fraud)
• 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)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential fact rule)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)

Source

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

Original opinion text

Opinion No. 2015-107
September 8, 2015
Frederick N. Scott
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Sponsor, Little Red Hen Committee
P. O. Box 13584
Maumelle, AR 72113
Dear Mr. Scott:
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
CURTAIL LEGISLATIVE AMENDMENTS

Ballot Title
To reduce the number of constitutional amendments permitted the legislature from three to one by modifying Article 19, Section 22.

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 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; 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.

Applying these precepts, it is my conclusion that I should substitute and certify a more suitable, complete, and correct popular name and ballot title 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 amendment:

Popular Name
REDUCING CONSTITUTIONAL AMENDMENTS PROPOSED BY THE GENERAL ASSEMBLY UNDER ARTICLE 19, SECTION 22 OF THE ARKANSAS CONSTITUTION

Ballot Title
Article 19, Section 22 of the Arkansas Constitution currently authorizes the Arkansas General Assembly at a regular legislative session to propose up to three (3) constitutional amendments to be submitted to the people for approval or rejection at the next general election. This amendment would change this number from three (3) to one (1), so that the General Assembly would be authorized at a regular session to propose no more than one (1) constitutional amendment pursuant to Article 19, Section 22, for submission to the people at the next general election.

Pursuant to Ark. Code Ann. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and of the associated penalties for violations. Enclosed herewith are instructions that should be incorporated in your petition prior to circulation.

Sincerely,
LESLIE RUTLEDGE
Attorney General of the State of Arkansas