Why did Arkansas reject the first Arkansas Cannabis Amendment ballot title in 2016?

Plain-English summary

Mary Berry submitted the first version of "The Arkansas Cannabis Amendment" for AG certification under Ark. Code Ann. § 7-9-107. The proposal would have legalized industrial hemp and recreational and medical marijuana in Arkansas. AG Leslie Rutledge rejected the popular name and ballot title because the underlying measure was riddled with ambiguities that made an honest, intelligible, and fair summary impossible.

The AG identified 14 separate ambiguities, including:

1. Whether a person must be an Arkansas resident to get an industrial hemp or marijuana license.
2. The meaning of "person(s) lawfully in possession of the property" in section 4(c) (cultivator versus property owner).
3. Section 4(d) does not specify a penalty for cultivating hemp without a license.
4. The proposal mentioned field tags as a requirement but section 4(d) did not reference field tags in the requirements list.
5. The proposal was unclear about plant tags and the penalty for missing plant tags.
6. The proposal referred to permanent revocation of licenses but did not give the state the regulatory authority to revoke, or describe how revocation would work.
7. The word "remuneration" in section 5(e) was undefined (money only, or anything of value).
8. Sections 6 and 7 referred to "forfeiture of assets" without definition.
9. Section 7(f) used "use" of marijuana paraphernalia ambiguously (manufacture, sale, etc.).
10. Section 8(e) used "controlled substances" without specifying state or federal law.
11. Section 10(a) said sales would be taxed at "the same rate as other goods," ambiguous given Arkansas's combination of general and targeted sales taxes.
12. Section 10(a) did not state which taxing authority could impose the 5% "excise tax," and "excise tax" itself was undefined for voters. "Retail" was also undefined.
13. Section 10(b) referred to undefined "paying account[s]" and "the general fund."
14. Section 10(c) used "special taxes" without definition, and "patient" was undefined.

Because the underlying measure was internally inconsistent, the AG could not substitute and certify a more suitable title; she had to reject outright and ask Berry to redesign. Berry later resubmitted (Op. 2016-0122), which was also rejected on similar grounds.

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.

Common questions

Q: What is the AG looking for in a ballot title review?
A: That the popular name and ballot title "honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act." The AG does not consider merits, only fairness of the summary. The Arkansas Supreme Court standards come from Pafford v. Hall, Bailey v. McCuen, Lange v. Martin, and related cases.

Q: Can the AG just fix a defective title?
A: Section 7-9-107(b) allows the AG to substitute a corrected title "if practicable." But where the underlying measure is internally inconsistent (per Roberts v. Priest), the AG cannot summarize coherently, so the title must be rejected.

Q: What happens after rejection?
A: Under § 7-9-107(c), the sponsor can redesign and resubmit at her convenience. Berry did so, and AG Rutledge rejected the revised version in Op. 2016-0122 for many of the same reasons plus new ones.

Q: Were any of the 2016 cannabis ballot proposals certified?
A: A separate medical-only proposal became the Arkansas Medical Marijuana Amendment of 2016 and was adopted by voters. Recreational and broader cannabis amendments like Berry's continued to fail certification rounds for ambiguity throughout 2016 and later years.

Background and statutory framework

Arkansas' ballot-title certification process at Ark. Code Ann. § 7-9-107 requires AG review of every proposed initiative or referendum. The AG has three options: certify, substitute a corrected title and certify, or reject as misleading. The Arkansas Supreme Court has elaborated extensive standards for sufficiency: the title must be honest, intelligible, fair, and brief enough to fit within the five-minute voting booth limit at § 7-5-309. It cannot contain technical terms without definitions, must not omit essential facts that would give a voter "serious ground for reflection," and must not be tinged with partisan coloring.

Where the proposal text is itself inconsistent, the AG cannot do her job. Roberts v. Priest held that internal inconsistencies "would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." That is the doctrinal basis for rejection rather than substitution.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (ballot title certification)
• Ark. Code Ann. § 7-5-309 (voting booth time limit)

Cases (selected):

• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistency)
• Lange v. Martin, 2016 Ark. 337 (reasoned decision standard)
• Wilson v. Martin, 2016 Ark. 334 (technical terms must be defined)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts and brevity)

Source

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

Original opinion text

Opinion No. 2016-107
October 31, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677

Dear Ms. Berry:

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 titled "The Arkansas Cannabis Amendment." The ballot title set out the proposal: lawful cultivation, production, distribution, sale, possession, and use of the cannabis plant and products derived from it; release from incarceration and expungement for certain non-violent marijuana convictions; division of cannabis into industrial hemp (≤0.3% THC) and marijuana (>0.3% THC) with separate regulatory schemes; license fees not exceeding $30 per year for hemp and marijuana licenses (age 18+ for hemp, age 21+ for marijuana); 36 plant cultivation limit; 5% excise tax on recreational marijuana; no tax on retail medical marijuana; medical use authorization by physician written recommendation; and standard carve-outs for employers, driving, and minors.

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.

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 the measure 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 proposal.

1. The proposal is unclear and ambiguous with respect to whether a person must be a resident of the State of Arkansas in order to obtain an industrial hemp license or a marijuana license.

2. Section 4(c) refers to "the person(s) lawfully in possession of the property." The meaning of this phrase is unclear and ambiguous, especially with respect to the meaning of the words "the property" and whether it only describes property the cultivator owns but is in the possession of another person, or whether it describes property owned by any person provided that person gives the cultivator consent.

3. Section 4(d) does not specify a penalty for cultivating hemp without a license. Voters would be materially interested in the extent of punishment that would or could be imposed for violation of this subsection.

4. The proposal implies that hemp cultivators are required to obtain field tags, but Section 4(d) does not refer to field tags with respect to requirements for cultivators. The proposal is ambiguous and uncertain in this regard.

5. The proposal is similarly ambiguous with respect to the extent to which plant tags are required and the extent to which a person will face punishment for failing to obtain plant tags.

6. The proposal, in sections 4 and 5, refers to permanent revocation of a marijuana license or industrial hemp license, but it does not expressly give the State this regulatory power or specify how or when the State could exercise such power if possessed.

7. Section 5(e) of the proposal provides that any person of age may "distribute recreational marijuana without remuneration ...." It is unclear whether "remuneration" is intended to refer only to money or to anything of value.

8. Sections 6 and 7 refer to "forfeiture of assets," a term which is not defined. It is not clear that voters would correctly understand the proposal's intent in this respect without clarification of the proposal's language.

9. Section 7(f) refers to "use" of marijuana paraphernalia. It is uncertain whether the word in this instance is intended to include manufacturing, selling, etc.

10. Section 8(e) uses the term "controlled substances" without definition. It is uncertain and ambiguous whether the term is intended to describe substances controlled under state law, federal law, or both.

11. Section 10(a) provides in essence that sales of recreational marijuana and industrial hemp will be taxed at "the same rate as other goods." The combination of general sales taxes and targeted sales taxes may result in different total rates on different types of goods (e.g., the mixed drink tax). Particularly because alcohol and marijuana are similar in some ways, the proposal is unclear with respect to the rates applicable to sales of recreational marijuana and industrial hemp.

12. Section 10(a) also provides that "an additional ... excise tax may be imposed on the retail sale of recreational marijuana." The provision is unclear and ambiguous in omitting to state which taxing unit(s) (e.g., the state, counties, cities) may impose such a tax. It is also unclear in its use of the term "excise tax," a legal term of art whose meaning likely is unclear to many voters. Finally, the proposal omits to define the term "retail," a word that may fairly be applied to transactions of varying characteristics.

13. Section 10(b) refers in several places to "paying account[s]," a term of uncertain meaning absent a definition. Additionally, section 10(b)(5) refers to "the general fund," a term that is also of uncertain meaning absent a definition.

14. Section 10(c) refers to "special taxes," an undefined term that is of uncertain meaning. Additionally, the word "patient," used in this section and elsewhere in the proposal, is not defined, leaving uncertainty about the extent of the required relationship between a physician and the person to whom it is prescribed.

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

Enclosure: Full text of the proposed Arkansas Cannabis Amendment, as submitted by the sponsor, is on file with the Office of the Attorney General.