Can a proposed Arkansas constitutional amendment legalize recreational marijuana, medical marijuana, and industrial hemp in a single ballot measure?

Plain-English summary

Sponsor Mary L. Berry of Summit submitted "The Arkansas Cannabis Amendment," a proposed constitutional amendment that would have legalized recreational marijuana for adults 21 and over, set up a licensing scheme administered by the state, regulated industrial hemp similar to corn or cotton, authorized medical marijuana, imposed a 5% excise tax on recreational sales, and released non-violent marijuana offenders with expungement of their records.

Attorney General Leslie Rutledge rejected the popular name and ballot title. She concluded that the underlying amendment's text contained eight serious internal inconsistencies, including findings statements that contradicted the operative provisions, references to undefined entities, and licensing language that was simultaneously framed as mandatory and optional. Because the text itself was ambiguous, she could not substitute and certify a cleaner ballot title.

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 opinion identified eight separate problems with the proposed amendment text:

1. Section 2 made cannabis lawful without limitation, but Section 4 defined "recreational marijuana" as adult use "regulated similar to alcoholic beverages." Nothing in the proposal actually imposed that regulation, leaving the recreational use by minors and the regulation of recreational marijuana generally undefined.
2. Section 3's "findings" did not match the operative text. Section 3 said recreational marijuana buyers must show proof of age, sellers would be "legitimate, taxpaying business people," and product would be labeled. None of those requirements appeared anywhere in the substantive provisions.
3. Section 4 defined a "marijuana license" and "marijuana plant tag," but nothing required anyone to obtain either. Section 2 broadly legalized cultivation and sale "without condition," contradicting Section 4's licensing framework.
4. Section 5 used "products produced comprised of industrial hemp," while Section 6 used "products produced containing marijuana." The differing language introduced ambiguity about scope.
5. Section 6 described a cultivation license but did not use the defined term "marijuana license." It was unclear whether the two sections referred to the same license.
6. Section 7 referred to "any state medical marijuana program" without defining or describing it. Because participation in such a program was an alternative way to obtain medical marijuana, its scope mattered, but the text gave no information.
7. Section 9 was internally inconsistent about public versus private property. It permitted "private property" owners to prohibit marijuana activities but listed entities that are commonly public, such as schools and hospitals.
8. Section 10 referred to persons "serving incarceration, prohibition, and parole." "Prohibition" appeared to be a typo for "probation," and the AG noted it is unlikely anyone is "serving" all three categories at once.

Background on Amendment 7 and ballot-title review

Under Ark. Code Ann. § 7-9-107, the Attorney General must certify the popular name and ballot title for any initiative or referendum before petitions can be circulated. The AG does not assess policy. The job is to make sure voters get an "impartial summary that will give the voter a fair understanding of the issues presented" (Becker v. Riviere, 270 Ark. 219 (1980)).

The Arkansas Supreme Court has been firm that "internal inconsistencies" in the proposed amendment itself "would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself" (Roberts v. Priest, 341 Ark. 813 (2000)). When the underlying text is ambiguous, the AG cannot rewrite the ballot title to cure the defect. She must reject the submission and require the sponsor to redraft the amendment first.

The 2016 medical marijuana track

The same week the AG rejected the Berry recreational/medical/hemp amendment, she certified a separate measure, "The Arkansas Medical Marijuana Amendment of 2016," submitted by David Couch (Opinion No. 2016-007). The Couch measure was narrower (medical only) and the AG was able to substitute a corrected ballot title. Arkansas voters approved a medical marijuana amendment in November 2016.

The opinion concluded the recreational/medical/hemp proposal could not be saved at the title-certification stage. The sponsor was invited to redraft and resubmit.

Common questions

Did this Cannabis Amendment ever appear on the Arkansas ballot?
This opinion addressed only the certification step. The sponsor would have needed to redraft and obtain a clean certification before circulating signatures. The historical record beyond the AG's office would have to be checked to see whether any later version was submitted.

Why did the AG reject this but certify the medical marijuana measure the same season?
The medical-only measure (Opinion 2016-007) had a tighter, internally consistent text and a ballot title the AG was able to substitute and improve. This broader recreational-medical-hemp-expungement measure had multiple internal contradictions about whether licensing was required, what regulatory framework applied, and what the unspecified "state medical marijuana program" was. Those problems were in the act, not the title, so no rewrite would cure them.

What does the AG mean by "redraft and resubmit"?
The sponsor can fix the issues in the amendment's text and try certification again. Each redraft is a fresh § 7-9-107 review.

Source

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

Original opinion text

Opinion No. 2016-012
February 23, 2016
Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
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
The Arkansas Cannabis Amendment

Ballot Title
Shall there be an amendment to the Arkansas Constitution concerning the cannabis plant and, in connection therewith, providing for the regulation of recreational marijuana similar to alcoholic beverages and the regulation of industrial hemp similar to corn and cotton; permitting a person 21 years of age or older to purchase and possess recreational marijuana, and to allow for the licensing of persons 21 or older to cultivate and produce limited amounts of marijuana for the personal, recreational, or medical use of our citizenry; requiring the general assembly to enact an excise tax of 5% to be levied upon the sales of recreational marijuana; permitting the use of medical marijuana to assure that patients, including those under 21 years of age, may have safe access to medical marijuana to treat a disease, injury, or illness; requiring the release of non-violent marijuana offenders in this state from incarceration, probation, and parole and expunging such convictions from all criminal records in this state?

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 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 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 amendment.

1. Section 2 makes lawful the use, etc., of cannabis in general, without limitation. Section 4 defines "recreational marijuana" as marijuana used by adults and "regulated similar to alcoholic beverages." Nothing in the proposal requires such regulation. It is accordingly unclear whether and how the proposal would regulate marijuana used recreationally by minors or not subjected to such regulation.

2. Section 3 of the proposal purports to relate the voters' purpose and certain findings in connection with approving the proposal. Some of the statements in section 3 are inconsistent with or not borne out by the proposal's substantive provisions. For instance, section 3 states that recreational marijuana buyers must show proof of age before buying, but nothing in the proposal requires such a showing. Section 3 states that marijuana will be sold by "[l]egitimate, taxpaying business people," but the proposal provides that anyone at least 21 years old may obtain a license to sell marijuana. Section 3 states that marijuana will be labeled but nothing in the proposal requires labeling.

3. Section 4 defines "marijuana license" and "marijuana plant tag." The proposal seems to take as a given that a person must obtain a license to sell, etc., marijuana, and tags to cultivate marijuana. Nothing in the proposal, however, requires anyone to obtain a license or tags. To the contrary, section 2 makes selling and cultivating marijuana lawful without condition.

4. Section 5 refers to "products produced comprised of industrial hemp." Section 6 refers to "products produced containing marijuana." The italicized words do not mean the same thing. Their use accordingly introduces uncertainty and ambiguity.

5. Section 6 refers to and describes a license to cultivate, etc., marijuana. Section 4 defines "marijuana license." Because section 6 does not employ the defined term "marijuana license," it is unclear whether both sections are intended to refer to the same thing.

6. Section 7 refers to "any state medical marijuana program," without further elaboration. Because participation in such a program is a way to obtain medical marijuana without obtaining a written recommendation from a physician, the scope, sponsorship, and other aspects of such a program are important elements of the proposal and are impossible to describe based on the proposal as written.

7. Section 9 provides that nothing in the proposal is intended to prohibit a person owning private property from prohibiting certain activities relating to marijuana, but the provision names entities that are commonly public, such as schools and hospitals, as among those who are entitled to the provision's protections. It is unclear how the provision applies, if at all, to public entities operating on public property.

8. Section 10 refers to persons "serving incarceration, prohibition, and parole." It seems unlikely that anyone is "serving" all three. The provision's meaning is unclear.

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