Why did Arkansas reject Barry Emigh's Fairdeal Holdings casino-gambling ballot title?

Plain-English summary

Barry Emigh, a repeat ballot-title sponsor, submitted a constitutional amendment that would have authorized a sole proprietorship called "Fairdeal Holdings" to act as a contracting agent placing gambling-and-alcohol local options on city and county ballots in Arkansas. AG Leslie Rutledge rejected the popular name and ballot title for several fundamental defects:

1. The labels were swapped. Emigh's proposed "popular name" read like a ballot title (long, detailed, narrative). His proposed "ballot title" read like a popular name (short, descriptive label). The popular name must be a "short, descriptive reference" for the measure, citing Gaines v. McCuen. A long narrative cannot serve as a popular name. The AG could not certify either field as written.

2. Self-executing while delegating to the Legislature. The proposal said it was "self executing [sic]" but also gave the General Assembly power to legislate in furtherance of the amendment (regulating gambling and alcohol service, taxing gambling income). A document cannot be self-executing if it requires additional legislation. That contradiction had been pointed out in a prior opinion (2016-099) and remained unresolved.

3. "Upon passage" gives no effective date. The phrase "upon passage of this amendment ..." used repeatedly in the proposal does not tell voters precisely when the amendment takes effect.

4. Grammatical, capitalization, syntax, and punctuation errors. The proposal contained many such errors that, in context, created real ambiguities about what the proposal would actually do.

The AG declined to substitute a corrected title. She noted prior opinions had urged the sponsor to seek help from someone experienced in drafting legislation. She again pointed out that amending the Arkansas Constitution is a serious matter and that the Arkansas Supreme Court holds proposed amendment titles to a commensurately serious standard.

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 difference between a "popular name" and a "ballot title"?
A: The popular name is a short, descriptive reference (a label) used so that voters can refer to the measure during the campaign. The ballot title is the longer summary that actually appears on the ballot and tells voters what they're voting on. Pafford v. Hall and Gaines v. McCuen describe the popular name's role; the bulk of the case law on ballot-title standards covers the longer ballot title.

Q: What does "self-executing" mean for a constitutional amendment?
A: A self-executing amendment takes effect without further legislative action. If the amendment delegates authority to the General Assembly that must be exercised before the amendment can operate, the amendment is not truly self-executing, and the conflict creates voter confusion.

Q: What was problematic about "Fairdeal Holdings"?
A: The proposal would have given a single, named, private sole proprietorship a unique constitutional role: the exclusive right to place gambling-and-alcohol local options on Arkansas ballots. The AG's office did not reject the title on this ground specifically, but the unusual structure made the title hard to summarize fairly.

Q: Did the AG comment on the substance of the proposal?
A: No, the AG does not consider merits. She focused entirely on whether the popular name and ballot title would honestly, intelligibly, and fairly summarize the proposal. They could not, given the underlying drafting problems.

Background and statutory framework

Arkansas' ballot-title certification process is at Ark. Code Ann. § 7-9-107. The AG has three options: certify, substitute and certify, or reject. Roberts v. Priest established that internal inconsistency in the proposal text is grounds for outright rejection (rather than substitution), because the AG cannot summarize what does not cohere.

The popular name doctrine comes from Pafford v. Hall and Gaines v. McCuen: the popular name is a "label" voters can use to discuss the measure. It need not be detailed but must not be misleading. Bailey v. McCuen sets out the brevity-versus-essential-facts balance. Lange v. Martin and Wilson v. Martin are the most recent guidance on the standard of voter understanding.

The Court's standards apply even more sharply to constitutional amendments than statutes, given that constitutional changes are more difficult to undo.

Citations and references

Statutes:

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

Cases (selected):

• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950) (popular name as legislative device)
• Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988) (popular name as label)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (brevity and essential facts)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (rejection for internal inconsistency)

Source

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

Original opinion text

Opinion No. 2016-109
November 7, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Barry Emigh, Sponsor
1104 West Seventh Street
Hot Springs, AR 71913-4225

Dear Mr. Emigh:

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. The proposed amendment would authorize a sole proprietorship under the assumed name "Fairdeal Holdings" to act as a contracting agent placing local-ballot options on gambling and alcohol service in cities with populations over 24,000 and in counties.

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 to certify popular names and ballot titles of all proposed initiative and referendum acts or amendments before petitions are circulated for signature. The AG may, if practicable, substitute a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the AG may reject the entire petition.

The purpose of my review is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.

RESPONSE

It is my opinion, based on the standards developed by the Arkansas Supreme Court, 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 because of fatal errors with your proposed popular name and ballot title. Additionally, there are several fundamental problems and ambiguities in the text of the measure itself, some of which I pointed out to you in my earlier opinion to you (Op. Att'y Gen. 2016-099) but that you have failed to correct. Because of these basic issues, I again have not conducted a thorough, point-by-point review of your proposal. Instead, I must point out the initial, central problems contained in your proposed measure.

• It would appear, from the face of your submission, that you have mislabeled your proposed ballot title as your proposed popular name and vice versa. Your proposed popular name reads like a ballot title and your ballot title reads like a popular name. Whether this was a mere drafting error or is indicative of a misunderstanding of the differences between a popular name and a ballot title, this is a fundamental mistake that precludes me from certifying either your proposed popular name or ballot title.

As I previously told you, the popular name must be a short, descriptive reference for your proposed measure. "The popular name is designed to make it easy for voters to discuss the proposal prior to the election, by giving them a label to identify it." Moreover, it cannot be misleading. Your submission completely fails to meet this standard, and I cannot at this point substitute a more suitable and appropriate popular name. And your ballot title completely fails to meet the Court's standards. The total failure to summarize entire sections of your proposal renders your proposed ballot title utterly deficient. Despite my being legally authorized to craft a more suitable ballot title, I am not authorized, nor am I prepared, to craft one for you out of whole cloth.

• You again state that your proposed measure is "self executing" [sic]. But it purports to give the Legislature the power, or some might see as the duty, to legislate in furtherance of your proposed amendment. A document cannot be considered self-executing if it requires anything additional, such as subsequent legislation, to make it binding. Your proposal's claim to be self-executing while giving the General Assembly legislative authority in areas connected with, but unaddressed by, your proposal creates a considerable ambiguity that must be clarified and clearly set forth in your proposal and ballot title.

• Your proposed measure repeatedly contains the phrase "[u]pon passage of this amendment ...." You have been told that this language is wholly ambiguous in that it fails to give voters any precise way of knowing the effective date of your proposed amendment. This is especially troubling when your proposed measure, as noted above, purports to be "self executing [sic]." This ambiguity must be clarified and clearly set forth in your proposal and ballot title.

• Your proposed measure still contains many grammatical errors in spelling, capitalization, syntax, and punctuation, especially with respect to your use of periods and commas, that, if left uncorrected, create considerable ambiguities and would make it impossible for me to perform my statutory mandate with respect to your proposal.

CONCLUSION

The serious problems and ambiguities noted above are not necessarily all of the issues 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 an appropriate popular name or language in a ballot title for your measure because of these problems. 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. In line with that august duty, I am once more compelled to encourage you, should you truly and in good faith desire this office's approval of a proposed popular name and ballot title, to seek the advice or assistance of someone experienced in drafting legislation, editing legal documents, or both.

As I wrote to you before, amending the Arkansas Constitution is a very serious matter, and the Arkansas Supreme Court holds popular names and ballot titles of proposed constitutional amendments to a standard that is commensurate with this seriousness. You must take this matter seriously. I must stress again that if you are intent upon passing a measure that will amend the constitution in such a significant way, then the assistance I mentioned above will be very helpful to you in avoiding wasted time and effort in trying to prepare a popular name and ballot title that will meet the high standards set by the Supreme Court.

Based on what has been submitted, my statutory duty is to reject your proposed popular name and ballot title for the foregoing reasons and instruct you, if you so choose, to redesign the proposed measure and ballot title.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure: The proposed measure as submitted by the sponsor remains on file with the Office of the Attorney General and includes sections on gambling as a local ballot option; laws, rules, regulations, licenses, fees, permits, and taxes; authorization of "Fairdeal Holdings" as a sole proprietorship; transfer of contracts; repeal of gambling as a local ballot option; voter acknowledgment of addiction risk; definitions of "Fairdeal Holdings," "gambling," "sale and service of alcoholic beverages," "alcoholic beverages," "structure," "city," "gambling operator," and "gambling operation"; and a self-executing/conflicting-laws clause.