Did the Arkansas Attorney General approve the proposed Arkansas Term Limits Amendment for the ballot in 2016?

Plain-English summary

Sponsor Thomas E. Steele submitted a proposed constitutional amendment to the Arkansas Attorney General that would tighten term limits for members of the Arkansas General Assembly. AG Leslie Rutledge certified the popular name and ballot title as sufficient, finding the wording fairly and impartially summarized the measure. The opinion notes the language is identical to one Rutledge had already approved in Op. 2016-080 for a virtually identical measure.

The proposed amendment, called the "Arkansas Term Limits Amendment," would have:

• Capped a member of the Arkansas House of Representatives at three two-year terms.
• Capped a member of the Arkansas Senate at two four-year terms.
• Capped total legislative service at ten years (combining House and Senate time, with full years of any partial term from a special election counted).
• Repealed Section 2(c) of Amendment 73 as added by Amendment 94, which had set the limit at sixteen years.
• Stripped the General Assembly's authority to propose any future amendment changing those limits, reserving that power only to the people under Article 5, Section 1 (Amendment 7).
• Applied the limits to service on or after January 1, 1993, but without cutting short any current term.

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 2016 certification approved the petition wording so the sponsor could begin gathering signatures. Whether the measure actually qualified for the ballot, was approved by voters, and survived any subsequent litigation are separate questions outside the scope of an AG ballot-title certification.

Background and statutory framework

Under Ark. Code Ann. § 7-9-107, the Arkansas Attorney General must review and either certify, substitute, or reject the popular name and ballot title of every proposed initiated amendment before petition circulation. The standard is whether the proposed wording would let a voter understand the measure honestly and impartially. The AG does not consider the merits, the policy, or the likelihood that the measure will accomplish its goal.

The Arkansas Supreme Court cases the opinion cites (Bailey v. McCuen, Plugge v. McCuen, and others) establish the framework: the title must adequately inform voters of the contents, must disclose any essential fact that would give voters serious ground for reflection, must avoid undefined technical terms and partisan coloring, must be free of any misleading tendency by amplification or omission, and must remain brief enough to be read inside the booth's five-minute limit (Ark. Code Ann. § 7-5-309).

Once the AG certifies a popular name and ballot title, the sponsor must add the statutory instructions to canvassers and signers under Ark. Code Ann. § 7-9-108 before circulating the petition.

Background on Amendment 73 and Amendment 94

Amendment 73 to the Arkansas Constitution, adopted in 1992, originally imposed strict legislative term limits: three two-year terms for House members, two four-year terms for Senate members. In 2014, voters approved Amendment 94 (titled "The Arkansas Elected Officials Ethics, Transparency, and Financial Reform Amendment"), which among other things rewrote Amendment 73's term-limit cap to a sixteen-year aggregate limit. The Steele proposal at issue here was a citizen-driven effort to roll the limits back closer to the original 1992 framework.

Common questions

Q: What did the proposed amendment actually change about Arkansas legislator term limits?
A: It would have replaced the sixteen-year aggregate cap (set by Amendment 94 in 2014) with a tighter regime: three two-year House terms, two four-year Senate terms, and a ten-year aggregate cap counting both chambers together.

Q: Why did the AG approve this one but reject other ballot-title submissions?
A: The certification test is technical, not political. The AG asks whether a voter can fairly understand the measure from the words on the ballot. This proposal's text and title matched up, defined its key concepts, and had no internal contradictions, so the impartial summary requirement was met.

Q: What does it mean that the General Assembly cannot propose changes to these limits?
A: Ordinarily, the legislature can refer constitutional amendments to the ballot itself (one of Arkansas's three amendment paths). The Steele measure would carve out term limits as an exception, meaning only a citizen-initiated petition under Article 5, Section 1 (as amended by Amendment 7) could ever change them again. This protects the limits from being weakened by the very body they restrict.

Q: Why does the opinion mention that the same language was approved in Opinion 2016-080?
A: To signal consistency and explain why no fresh substantive analysis was needed. The Steele proposal mirrored one Rutledge had already vetted.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107, certification of popular names and ballot titles
• Ark. Code Ann. § 7-9-108, required instructions to canvassers and signers
• Ark. Code Ann. § 7-5-309, five-minute booth limit

Cases:

• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), essential-fact disclosure
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), internal inconsistencies in proposal text
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950), the popular name as a "useful legislative device"
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994), partisan coloring

Related AG opinion:

• Op. Att'y Gen. 2016-080, certifying the identical popular name and ballot title for a parallel measure

Source

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

Original opinion text

Opinion No. 2016-105
October 28, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Mr. Thomas E. Steele, Sponsor
9 Gravelle Drive
Little Rock, AR 72223
Dear Mr. Steele:

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, a ballot title will not be legally sufficient unless it "adequately
inform[s]" the voters of the contents of a proposed amendment or act so that they
can make a "reasoned decision in the voting booth." A ballot title's failure to
"honestly and accurately reflect what is contained in the proposed [act or]
Amendment" may lead the Court to conclude that the "omission is significant."
The Court has also disapproved the use of terms that are "technical and not readily
understood by voters." Without a definition of such terms in the ballot title, the
title may be deemed insufficient.

Additionally, 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. This popular name and ballot title are the same as those approved by this office in Attorney General Opinion 2016-080, for a virtually identical proposed term-limits amendment.

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