Can Arkansas voters approve a local-option election in dry counties allowing on-premise alcohol sales at hotels, restaurants, microbreweries, and festivals?

Plain-English summary

Little Rock attorney David Couch submitted "The On Premise Local Option Election Alcohol Act," a proposed initiated act that would have let voters in a dry Arkansas county, or in a city of the first class within such a county, approve on-premise sales and consumption of alcoholic beverages at hotels, restaurants, microbrewery-restaurants, and festivals. Off-premise sales would have stayed banned.

Attorney General Leslie Rutledge rejected the popular name and ballot title. She concluded the underlying initiated act contained ambiguities that prevented her from fairly summarizing it for voters, and she could not substitute a corrected ballot title because the problems lay in the text of the proposal itself. Couch later resubmitted a revised version, which the AG again rejected in Opinion No. 2016-015.

Currency note

This opinion was issued in 2016. 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.

What the AG flagged

The AG's rejection was driven by the Roberts v. Priest doctrine: when the proposed measure itself contains internal inconsistencies, no popular name or ballot title can fairly summarize it. The same kinds of issues that surfaced in Couch's revised submission (Opinion 2016-015) appeared here in this earlier draft, including:

• Tension between the rulemaking authority of the Alcoholic Beverage Control Director and the more limited permit authority under Ark. Code Ann. § 3-4-105.
• A defined term ("wet") that did not appear in the operative text.
• Inconsistencies between the on-premise election scope and language that also referred to manufacture of alcoholic beverages.
• Microbrewery-restaurant licensing language whose effect after a successful election was unclear.
• Ambiguity over whether the election was discretionary or mandatory.

The AG handled this rejection through the standard Ark. Code Ann. § 7-9-107 process: she explained the law, identified the textual problems, and invited the sponsor to redraft and resubmit.

Why two ballot-title submissions?

Couch tried twice. This opinion was the first rejection. He returned with a revised measure that the AG took up in Opinion No. 2016-015, where she again identified six ambiguities and rejected the revised version. The pattern is common with complex initiated acts: sponsors revise, the AG examines the revised text, and the cycle continues until the underlying measure is clean enough that the ballot title can be either certified as submitted or substituted and certified.

Background on ballot-title review

Under Ark. Code Ann. § 7-9-107, the Attorney General certifies the popular name and ballot title before sponsors can circulate petitions. The Arkansas Supreme Court has held that the ballot title must give voters "a fair understanding of the issues presented" (Becker v. Riviere) and must be "free of any misleading tendency whether by amplification, omission, or fallacy" (Bailey v. McCuen). When the underlying act has internal contradictions, the AG cannot rewrite the title to cure them; the sponsor must redraft.

Common questions

Did Couch eventually get this measure certified?
The text record shows Opinion 2016-015 was a second rejection of a revised version. Beyond that, the historical record outside the AG's office would have to be consulted to see whether any later submission cleared.

What is the AG looking for in a ballot title?
A title that honestly and impartially describes what voters would be approving, in language brief enough to fit within Ark. Code Ann. § 7-5-309's five-minute voting-booth limit and without misleading or partisan-coloring effects. The Arkansas Supreme Court has flagged that drafting errors and internal inconsistencies in the underlying measure are fatal because they generate inevitable confusion in the title.

Could the AG just certify the popular name only?
No. Section 7-9-107 requires both the popular name and the ballot title to be certified before signatures can be collected. A defect in either, or in the underlying measure, blocks the whole submission.

Source

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

Official summary

Request for certification of the popular name and ballot title of an initiated act proposed to allow a dry political subdivision to conduct an election to permit the on-premise sale and consumption of alcoholic beverages at hotels, restaurants, microbrewery-restaurants or festivals. RESPONSE: Rejected due to ambiguities in the text of the measure.

Original opinion text

Opinion No. 2016-009
February 11, 2016
David A. Couch
Attorney at Law
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
1501 North University, Suite 228
Little Rock, AR 72207
Dear Mr. Couch:
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
THE ON PREMISE LOCAL OPTION ELECTION ALCOHOL ACT

Ballot Title
An act to allow a dry county or city of the first class within the dry county to conduct an election to permit the on premise sale and consumption of alcoholic beverages upon the petition of fifteen percent (15%) of the qualified electors residing within the boundries [sic] of the dry county or city of the first class within the dry county; providing that on premises consumption is allowed only at a hotel, restaurant, microbrewery restaurant or festival; defining hotel, restaurant, microbrewery, festival and other terms; and providing that no sales for off premise consumption is allowed.

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.

It is my opinion, based on the above precepts, that a number of additions or changes to your ballot title are 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 act 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 may, if you wish, redesign the proposed measure and ballot title, and then resubmit for certification. In order to aid your redesign, I highlight below the more concerning ambiguities in the text of your proposed act.

1. The text of your initiated act does not contain a required enacting clause. Amendment 7 to the Arkansas Constitution (now codified at Ark. Const. art. 5, § 1), provides: "The style of all bills initiated and submitted under the provisions of this section shall be 'Be It Enacted by the People of the State of Arkansas (municipality, or county, as the case may be).'" The Arkansas Constitution thus clearly requires the inclusion of an enacting clause in your proposed initiated act. The absence of an enacting clause from your measure creates an ambiguity as to the measure's effectiveness.

2. The proposed act would allow the sale of alcoholic beverages for on-premises consumption at certain locations in a dry county or city of the first class within a dry county after an election approving such sales. Specifically, sales would be limited to "on-premises consumption at a hotel, restaurant, microbrewery restaurant or festival." The definition of "festival" under the proposed measure generates several ambiguities, including unclear geographic scope, the introduction of an undefined term "Festival Events," and unclear procedures for determining festival location, length, licensing, and permits. The same ambiguity extends to the permitting or licensing of hotels, restaurants, and microbrewery-restaurants. The "Construction" subdivision declares the act is "cumulative" to existing liquor laws and "readopts" them, but the precise effect of "readoption" is unclear.

The uncertainty is compounded by the inclusion of definitions for a "Temporary Spirits Permit," "Temporary Beer Permit," and "Temporary Wine Permit" that are defined but never used in the operative text, leaving them without substance.

3. The provision excluding from "Festival Events" certain political, religious, or expressive events does not make clear whether the exclusion means the events do not qualify for a permit, or whether it means no permit is required for alcohol sales at such events. The subject of the modifying phrases is also unclear.

4. The definition of "hard cider" contains a typographical error referring to liquor containing "not more than 31 twenty-one percent (21%)" alcohol by weight.

5. "Microbrewery-Restaurant" is defined using the conjunctive "and" to require brewing and selling beer, malt, and hard cider, which may not be the intended scope.

6. The microbrewery-restaurant definition refers to "these Regulations" without identifying any regulations within the proposed act itself.

7. The microbrewery-restaurant provision refers to purchasing beer "as set forth in that Act" without identifying which Act.

8. The petition procedure refers to a "dry county on-premises election," but a following subsection refers to "the boundaries of the dry or city of the first class within the dry county," an inconsistency that may be a typographical error.

9. Subsections (A)(1) and (2) of the "Election Results - Effects" subdivision begin with phrases that are not complete sentences.

10. The election results provision references issuance of licenses and permits "immediately after the certification of the results of an election ... as required by § 3-8-206." Section 3-8-206 contains multiple time provisions (three-day certification, recount provisions, and a 20-day county court order). These provisions create uncertainty regarding the controlling time period.

11. It is unclear whether the current recount provision under § 3-8-206(c) even applies, given that the proposed measure appears to contemplate "immediate" license issuance after certification.

12. The "Construction" subdivision's declaration that the act is "cumulative" and "readopts" existing liquor laws may introduce uncertainty as to the future vote requirement under Ark. Const. art. 5, § 1 (requiring a two-thirds vote of the General Assembly to amend or repeal voter-approved measures). If "readopting" current liquor laws sweeps those laws into the protection of art. 5, § 1, any future amendment or repeal might be subject to that constitutional vote requirement.

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 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