Did the Arkansas AG approve the 2016 ballot proposal to change county offices, JPs, and constables from two-year to four-year terms?

Plain-English summary

David E. Dinwiddie of Pine Bluff submitted a proposed constitutional amendment to change the terms of office for County Judge, Justice of the Peace, County Sheriff, County Collector, County Treasurer, County Assessor, Circuit Clerk, County Clerk, County Coroner, County Surveyor, and Constable from the current two-year terms to four-year terms, with the new term length applying to officials sworn in after December 31, 2016. The sponsor noted it was substantially the same proposal the AG had already approved as Opinion No. 2013-110, with the date moved from 2014 to 2016.

The AG certified the popular name and ballot title, substituting a more grammatical version. The revised popular name read "FOUR-YEAR TERMS OF OFFICE FOR ELECTED COUNTY OFFICIALS, JUSTICES OF THE PEACE, AND CONSTABLES" (changes: hyphen in "Four-Year" and pluralizing "Terms"). The revised ballot title made parallel grammatical adjustments. The substance of the proposal, as captured in the ballot title, was unchanged.

The AG flagged for the sponsor's information that House Joint Resolution 1027 from the 2015 regular session would also appear on the 2016 general election ballot and was similar in certain respects to this proposal. That was disclosed for informational purposes only; it did not affect the certification.

The opinion also reproduced the standard instructions to canvassers and signers required by Ark. Code Ann. § 7-9-108, including the seven petition-fraud offenses that constitute Class A misdemeanors under § 5-55-601(b).

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 requires the AG to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before petitions are circulated. The AG may, if practicable, substitute a more suitable and correct popular name and ballot title under § 7-9-107(b). If the popular name and ballot title are sufficiently misleading, the AG may reject the entire petition.

The Arkansas Supreme Court has developed the substantive standards over decades. The popular name need not contain every exception that the ballot title must include, but it cannot be misleading or give partisan coloring (Pafford v. Hall, Chaney v. Bryant, Moore v. Hall). The popular name and ballot title are read together to determine sufficiency (May v. Daniels). The ballot title must give voters a fair understanding of the issues (Becker v. Riviere), must disclose any essential fact that would give a voter serious ground for reflection (Bailey v. McCuen), and must be free of misleading tendency by amplification, omission, or fallacy and not tinged with partisan coloring (Crochet v. Priest, Christian Civic Action Committee v. McCuen). It must be brief and concise so that voters can act within the five-minute limit on voting-booth time (Ark. Code Ann. § 7-5-309). It must convey an intelligible idea of the scope and significance of the change (Christian Civic Action Committee).

Here the proposal was simple and the AG saw nothing in the substance that required rejection. The changes were grammatical: a hyphen in "Four-Year" and pluralization of "Terms" in the popular name; mirror adjustments in the ballot title. The AG also noted, in a footnote, that HJR 1027 referred to the electorate from the 2015 regular session was similar in certain respects to the sponsor's proposal, but that information was supplied only for context and did not affect certification.

The AG also enclosed the standard instructions to canvassers and signers required by § 7-9-108. Those instructions covered the basic rules of petition circulation (only registered voters may sign, signatures must be in the signer's own handwriting in the presence of the canvasser, all signatures in a petition section must come from voters in a single county) and recited the seven types of petition fraud that are Class A misdemeanors under § 5-55-601(b).

Common questions

Did the AG say four-year terms were a good idea?

No. The AG only reviews whether the popular name and ballot title accurately summarize the proposal. The merits of moving county officials to four-year terms were not the AG's call to make.

Why did the AG change the wording?

The AG used the substitution authority in § 7-9-107(b) to make small grammatical fixes: hyphenating "Four-Year" and pluralizing "Terms" in the popular name, plus parallel changes in the ballot title. The substance was unchanged.

Who would have been affected if the amendment passed?

The proposal listed eleven offices: County Judge, Justice of the Peace, County Sheriff, County Collector, County Treasurer, County Assessor, Circuit Clerk, County Clerk, County Coroner, County Surveyor, and Constable. The four-year term would apply only to officials sworn in after December 31, 2016, so the change would not be retroactive.

What about HJR 1027?

The AG flagged for informational purposes that the General Assembly had referred a similar proposal (HJR 1027) to the 2016 ballot. The AG did not analyze any conflict between the two; the two proposals were independent submissions to the same election.

What is petition fraud under Arkansas law?

The instructions enclosed with the opinion listed seven categories from § 5-55-601(b), including knowingly signing a name other than one's own, signing a petition more than once, signing while ineligible, paying or receiving compensation for signatures, and knowingly misrepresenting the purpose of the petition. Each is a Class A misdemeanor punishable by up to a $1,000 fine and one year of imprisonment.

Citations

• Ark. Code Ann. § 7-9-107 (AG certification of popular name and ballot title)
• Ark. Code Ann. § 7-9-107(b) (substitution authority)
• Ark. Code Ann. § 7-9-108 (canvasser and signer instructions)
• Ark. Code Ann. § 7-5-309 (five-minute time limit)
• Ark. Code Ann. § 5-55-601(b) (petition fraud)
• HJR 1027 (2015 regular session) (similar proposal referred to 2016 ballot by the General Assembly)
• 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)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Op. Att'y Gen. 2013-110 (prior approval of substantially similar measure)

Source

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

Original opinion text

Opinion No. 2015-139
November 30, 2015
David E. Dinwiddie
8608 Princeton Pike
Pine Bluff, AR 71602
Dear Mr. Dinwiddie:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2015), 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.

Section 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, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name: FOUR YEAR TERMS OF OFFICE FOR ELECTED COUNTY OFFICIALS, JUSTICES OF THE PEACE, AND CONSTABLES

Ballot Title: A constitutional amendment changing the term of office for County Judge, Justice of the Peace, County Sheriff, County Collector, County Treasurer, County Assessor, Circuit Clerk, County Clerk, County Coroner, County Surveyor, and Constable from the current two (2) years to four (4) years; commencing with any such official sworn in after December 31, 2016.

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.

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 (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.

Applying the above precepts, it is my conclusion that a more grammatically correct popular name and ballot title should be substituted 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: FOUR-YEAR TERMS OF OFFICE FOR ELECTED COUNTY OFFICIALS, JUSTICES OF THE PEACE, AND CONSTABLES

Ballot Title: A constitutional amendment changing the terms of office for the offices of County Judge, Justice of the Peace, County Sheriff, County Collector, County Treasurer, County Assessor, Circuit Clerk, County Clerk, County Coroner, County Surveyor, and Constable from the current two years to four years; commencing with any such official sworn in after December 31, 2016.

In my view, the purpose of your proposed measure is sufficiently stated in the popular name and ballot title as revised to satisfy this office's mandate under Ark. Code Ann. § 7-9-107.

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.

I will note for your information that the General Assembly has referred to the electors of this state House Joint Resolution 1027 ("HJR 1027") as a proposed constitutional amendment that will appear on the 2016 general election ballot. HJR 1027 is similar in certain respects to your proposed amendment. I bring this to your attention strictly for informational purposes.

Sincerely,
LESLIE RUTLEDGE
Attorney General

Instructions to Canvassers and Signers

1. The Arkansas Constitution gives Arkansas citizens the power to (a) initiate legislation by petition of 8% of the legal voters or constitutional amendments by petition of 10% of legal voters, or (b) order the referendum against any general act or any item of an appropriation bill or measure passed by the General Assembly by petition of 6% of legal voters. A proposed measure must be submitted at a regular election; referendum petitions may be referred at special elections on petition of 15% of the registered voters. Any measure submitted to the people becomes law when approved by a majority of the votes cast on the measure.

2. Only registered voters may sign. All signatures must be in the signer's own handwriting and in the presence of the person circulating the petition. The petition should contain only the signatures of voters residing in a single county.

3. Printed name, date of birth, residence, city or town of residence, and date of signing must be given as an aid to verification. If a petition signer needs assistance with this information due to disability, another person may print the signer's information and that person shall sign and print their name in the margin of the petition.

4. Do not attach additional sheets to this petition unless they contain the full language of the petition. The signature section of the petition must be formatted as prescribed by the Secretary of State.

5. Pursuant to section 5-55-601(b) of the Arkansas Code, each of the following activities constitutes "petition fraud," which is a Class A misdemeanor and is punishable by a fine of up to $1,000 and imprisonment for up to one year:

A person commits the offense of petition fraud:
(1) If the person knowingly: (A) Signs a name other than his or her name to a petition; (B) Signs his or her name more than one (1) time to a petition; or (C) Signs a petition when he or she is not legally entitled to sign the petition;
(2) If the person acting as a canvasser, notary, sponsor as defined under § 7-9-101, or agent of a sponsor: (A) Signs a name other than his or her own to a petition; (B) Prints a name, address, or birth date other than his or her own to a petition unless the signor requires assistance due to disability and the person complies with § 7-9-103; (C) Solicits or obtains a signature to a petition knowing that the person signing is not qualified to sign the petition; (D) Knowingly pays a person any form of compensation in exchange for signing a petition as a petitioner; (E) Accepts or pays money or anything of value for obtaining signatures on a petition when the person acting as a canvasser, sponsor, or agent of a sponsor knows that the person acting as a canvasser's name or address is not included on the sponsor's list filed with the Secretary of State under § 7-9-601; or (F) Knowingly misrepresents the purpose and effect of the petition or the measure affected for the purpose of causing a person to sign a petition;
(3) If the person acting as a canvasser knowingly makes a false statement on a petition verification form;
(5) If the person acting as a sponsor files a petition or a part of a petition with the official charged with verifying the signatures knowing that the petition or part of the petition contains one (1) or more false or fraudulent signatures unless each false or fraudulent signature is clearly stricken by the sponsor before filing.

The Attorney General is by law required to certify the sufficiency of the popular name and ballot title of all initiative or referendum petitions. This certification does not necessarily indicate the approval or disapproval of the contents thereof.

LESLIE RUTLEDGE
Attorney General of the State of Arkansas