Did the Arkansas AG certify the ballot title for the 2016 Arkansas Term Limits Amendment sponsored by Skip Cook?

Plain-English summary

Sponsor Skip Cook submitted a proposed constitutional amendment to tighten Arkansas's legislative term limits. AG Leslie Rutledge certified the popular name ("Arkansas Term Limits Amendment") and the ballot title as submitted.

What the measure would have done:

• House limit: No more than three (3) two-year House terms.
• Senate limit: No more than two (2) four-year Senate terms.
• Total cap: No more than ten (10) years of total service in the General Assembly. Partial terms from special elections counted only if longer than one year.
• Repeal of the 16-year cap: Section 2(c) of Amendment 73 (the 16-year overall service cap that had been added by Amendment 94) would be repealed.
• Coverage: The limits would apply to terms served on and after January 1, 1993, but would not cut short any term to which a legislator was elected before the amendment's effective date.
• Legislative power preserved to the people: Despite Article 19, § 22's grant of constitutional-amendment-proposing authority to the General Assembly, the General Assembly would no longer be able to propose any amendment to alter legislative term limits. That power would stay exclusively with the people under Article 5, § 1, as amended by Amendment 7.
• Severability preserved the remainder if any provision was held invalid.
• Effective date was January 1 immediately following voter passage.

The AG's role was narrow: to check whether the popular name and ballot title fairly, honestly, and intelligibly summarized the measure. The AG concluded that they did, found no internal ambiguities in the measure that prevented summarization, and certified.

The opinion also included instructions to canvassers and signers (the AG is required by Ark. Code Ann. § 7-9-108 to attach them to certifications) and a recital of Arkansas's petition-fraud statute, Ark. Code Ann. § 5-55-601(b), which makes certain canvassing and signing offenses Class A misdemeanors.

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.

This was one of multiple term-limits initiatives that circulated in Arkansas in the mid-2010s. The current status of Arkansas legislative term limits should be verified through the Arkansas Constitution and Secretary of State records before relying on any of the structural specifics above.

Background and statutory framework

What § 7-9-107 review involves

The AG is required by Ark. Code Ann. § 7-9-107 to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before petitions are circulated for signature. The AG may, if practicable, substitute and certify a more suitable and correct version. If the popular name and ballot title are sufficiently misleading, the AG may reject the entire petition.

The statute does not authorize the AG to make legal determinations about merits or the likelihood of accomplishing the measure's purpose. Under Kurrus v. Priest, Donovan v. Priest, and Plugge v. McCuen, the AG will not require ballot-title disclosure of constitutional infirmities unless the measure is "clearly contrary to law."

The ballot-title standards from the Arkansas Supreme Court

The Arkansas Supreme Court has developed a body of law on ballot-title sufficiency:

• Fair summary requirement. The ballot title must include an impartial summary giving the voter a fair understanding of the issues presented. Becker v. Riviere.
• Essential facts must be disclosed. Information that would give the voter "serious ground for reflection" must appear. Bailey v. McCuen.
• Brief and concise. The ballot title must respect § 7-5-309's five-minute booth limit and must be readable in a reasonable amount of time. Bailey.
• Free of misleading tendency. No amplification, omission, or fallacy. No partisan coloring. Bailey, Crochet v. Priest, Christian Civic Action Committee v. McCuen.
• Honest and impartial. Becker v. McCuen.
• Intelligible. The title must convey an intelligible idea of the scope and significance of the change. Christian Civic Action Committee.

The popular name need not contain detailed information but cannot be misleading or partisan. Pafford v. Hall; Chaney v. Bryant; Moore v. Hall. The Court considers the popular name and ballot title together in determining sufficiency. May v. Daniels.

Internal-consistency requirement on the measure

Roberts v. Priest established that a proposed measure cannot be approved if the text of the proposal itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the measure. The AG applied this standard here and found no internal ambiguities of the kind that had defeated the Berry cannabis measure (Op. 2016-078, 2016-089). The Term Limits Amendment was clean.

Why instructions to canvassers matter

Ark. Code Ann. § 7-9-108 requires every certified ballot petition to be circulated with "instructions to canvassers and signers" describing the constitutional petition process. The AG attached those instructions to the certification. They informed canvassers about signature thresholds, requirements for signatures (registered voters, own handwriting, in the canvasser's presence, all from one county per sheet), and the consequences under § 5-55-601(b) for petition fraud (Class A misdemeanor, up to $1,000 fine and one year imprisonment).

Common questions

Q: Did this opinion mean Arkansas legislators were limited to ten years starting in 2016?
A: No. Certification was the AG's blessing on the ballot title, not voter approval of the measure. The measure would not take effect unless voters approved it.

Q: What did the AG actually decide about merits?
A: Nothing. The AG repeatedly stressed that certification reflects no view on the merits, ideology, or wisdom of the measure.

Q: Did this proposal end up on the ballot?
A: Certification was the first step (allowing petition circulation). Whether the sponsor gathered enough signatures and whether the measure cleared other challenges determined whether it actually reached the ballot. Subsequent Arkansas Supreme Court litigation has shaped which initiatives made the November 2016 ballot.

Q: What's the difference between a "popular name" and a "ballot title"?
A: The popular name is a short, descriptive title (here, "Arkansas Term Limits Amendment"). The ballot title is the longer summary printed on the ballot itself. The two are considered together for sufficiency.

Q: Why did this proposal succeed certification when the Berry cannabis proposal failed?
A: The Term Limits proposal did not have internal ambiguities. The AG can certify a clean proposal; the AG must reject when the underlying text is internally inconsistent, because no fair summary is possible.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (Supp. 2015), AG certification of ballot titles
• Ark. Code Ann. § 7-9-107(b), substitution authority
• Ark. Code Ann. § 7-9-108, instructions to canvassers and signers
• Ark. Code Ann. § 7-5-309, five-minute voting-booth limit
• Ark. Code Ann. § 5-55-601(b), petition fraud (Class A misdemeanor)

Constitution:

• Ark. Const. art. 5, § 1, as amended by Amendment 7
• Ark. Const. art. 19, § 22
• Ark. Const. Amendment 73, § 2(c) (proposed to be repealed)
• Ark. Const. Amendment 94 (which had added § 2(c) to Amendment 73)

Cases:

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (Ark. Sup. Ct.)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996) (Ark. Sup. Ct.)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992) (Ark. Sup. Ct.)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 848 (1984) (Ark. Sup. Ct.)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950) (Ark. Sup. Ct.)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976) (Ark. Sup. Ct.)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958) (Ark. Sup. Ct.)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004) (Ark. Sup. Ct.)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (Ark. Sup. Ct.)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (Ark. Sup. Ct.)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996) (Ark. Sup. Ct.)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (Ark. Sup. Ct.)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990) (Ark. Sup. Ct.)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (Ark. Sup. Ct.)

Source

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

Original opinion text

Opinion No. 2016-080
July 29, 2016

Mr. Skip Cook, Sponsor
14721 Glisten Lane
Little Rock, AR 72211

Dear Mr. Cook:

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 initiated measure.

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 proposal.

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
Arkansas Term Limits Amendment

Ballot Title
A proposed amendment to the Arkansas Constitution concerning term limits for members of the Arkansas General Assembly; to provide that no person may be elected to more than three (3) two-year terms as a member of the House of Representatives, to more than two (2) four-year terms as a member of the Senate, or to any term that, if served, would cause the member to exceed a total of ten (10) years of service in the General Assembly; to repeal Section 2(c) of Amendment 73 that established a years-of-service limit on members of the General Assembly of sixteen (16) years; to provide that the ten-year service limit shall include all two (2) and four (4) year terms, along with full years of any partial term served as a result of a special election to fill a vacancy; to apply the limits to terms and service in the General Assembly on and after January 1, 1993; to provide that this amendment shall not cut short or invalidate a term to which a member of the General Assembly was elected prior to the effective date of this amendment; to provide that notwithstanding the General Assembly's constitutional authority to propose amendments to the Constitution, the General Assembly shall not have the authority to propose an amendment to the Constitution regarding term limits for the House of Representatives or Senate, and to continue reserving that power to the people under Article 5, Section 1, as amended by Amendment 7; and to declare that if any provision of this amendment should be held invalid, the remainder shall stand.

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 measure cannot be approved if the text of the proposal itself contributes to 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 proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal.

Applying the above precepts, it is my conclusion that your proposed popular name and ballot title are sufficient and they are therefore certified as submitted. 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

Enclosures 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; [or]

(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

[The full proposed amendment text was enclosed with the certification. It is preserved in the source PDF on the Arkansas AG website.]