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

Plain-English summary

Mary Berry submitted a proposed constitutional amendment, "The Arkansas Cannabis Amendment," with a popular name and ballot title for the AG's certification under Ark. Code Ann. § 7-9-107. The amendment would have legalized medical and recreational marijuana, set up a licensing scheme for industrial hemp and marijuana, expanded the qualifying conditions for medical marijuana, allowed home cultivation of up to 36 plants, and imposed a five percent excise tax on recreational sales.

AG Leslie Rutledge rejected the title. The rejection was not about the policy merits, which the AG cannot consider, but about the text of the measure itself. The AG identified five categories of ambiguity that made a fair summary impossible:

1. Even after a prior revision, the tax rate language for recreational marijuana and industrial hemp was still unclear.
2. The phrase "to obtain proper ..." in the citation/penalty subsections (4(d)(1) and 5(g)(1)) might or might not modify "citation," and the word "citation" might or might not have its Rule 5.1(a) meaning.
3. The escalating penalty amounts in subsections (d)(2)/(d)(3) and (g)(2)/(g)(3) did not say whether the dollar amounts were on top of the standard $2,500 Class A misdemeanor fine, or whether the term of imprisonment was implicitly excluded.
4. Section 8 said the rules would "provide the following provisions no later than April 20, 2019," but it was unclear whether that meant the rules did not have to be enforced before that date, only had to be enforced until that date, or something else.
5. The proposal amended the Arkansas Medical Marijuana Amendment of 2016 by side-references like "[r]egistry identification cards ... shall be replaced with a marijuana license," instead of pointing to and amending specific sections, leaving the scope of the amendment uncertain.

The AG could not "substitute" a corrected title under § 7-9-107(b), because the underlying text was too ambiguous to summarize. Berry would have to redesign the proposal and resubmit.

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 doing when she certifies a ballot title?
A: The AG is checking 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 the merits of the proposal, only whether the title accurately and impartially summarizes it.

Q: Can the AG just rewrite a defective title?
A: Sometimes. Section 7-9-107(b) lets the AG "substitute and certify a more suitable and correct popular name and ballot title" if practicable. But where the underlying measure is internally inconsistent, the AG cannot summarize coherently, so the title must be rejected outright (citing Roberts v. Priest).

Q: What are the Arkansas Supreme Court's standards for a ballot title?
A: The title must adequately inform voters so they can make a reasoned decision. It cannot omit essential facts that would give a voter "serious ground for reflection." It cannot include technical terms that are not readily understood by voters without definitions. It must be brief enough to fit within the five-minute voting booth limit (Ark. Code Ann. § 7-5-309). And it must be free of partisan coloring, amplification, omission, or fallacy.

Q: Why does it matter how the proposal interacts with the existing Medical Marijuana Amendment of 2016?
A: Because if a new amendment changes an existing constitutional amendment, voters need to know what is being changed and how. A proposal that says "registry identification cards shall be replaced with a marijuana license" without pointing to the specific provisions of the AMMA being changed leaves both voters and the AG guessing about the actual legal effect.

Q: What did the sponsor have to do next?
A: Redesign the proposal to remove the ambiguities, then resubmit with a revised popular name and ballot title. Section 7-9-107(c) allows resubmission at the sponsor's convenience.

Background and statutory framework

Arkansas' ballot-title certification process at Ark. Code Ann. § 7-9-107 requires the AG to review a proposed initiative or referendum's popular name and ballot title before signatures can be circulated. The AG has three options: (1) certify, (2) substitute a corrected title and certify, or (3) reject outright if the title is sufficiently misleading.

The substantive standards come from the Arkansas Supreme Court. The popular name "need not contain detailed information" but must not be "misleading or give partisan coloring" (Pafford v. Hall). The ballot title must summarize the proposal "honestly, intelligibly, and fairly" (Arkansas Women's Political Caucus v. Riviere) and adequately inform voters "of the contents of a proposed amendment or act so that they can make a 'reasoned decision in the voting booth'" (Lange v. Martin). "Essential facts" that would give a voter "serious ground for reflection" must be disclosed (Bailey v. McCuen).

When the underlying text of the proposal is itself internally inconsistent, the AG cannot perform the certification task at all. Roberts v. Priest recognized 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 reason given here for rejection rather than substitution.

Citations and references

Statutes:

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

Cases:

• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts standard, brevity requirement)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistency in proposal text)
• Lange v. Martin, 2016 Ark. 337 (reasoned decision standard)
• Wilson v. Martin, 2016 Ark. 334 (technical terms must be defined)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 848 (1984) (honest, intelligible, fair)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996) (partisan coloring)

Source

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

Original opinion text

Opinion No. 2016-122
December 9, 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:

Popular Name: Arkansas Cannabis Amendment

Ballot Title:
An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of the cannabis plant and products produced therefrom may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; providing for the release from incarceration, probation, or parole of all persons whose current and only conviction(s) in which they are serving were of State laws pertaining to the cultivation, production, distribution, sale, and possession of marijuana or possession of marijuana paraphernalia, and the expungement of records relating to such conviction(s); dividing cannabis into industrial hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and the sale of industrial hemp and products produced therefrom; providing that anyone 18 years of age or older may obtain an industrial hemp license permitting the person to cultivate industrial hemp; authorizing both medical and recreational use of marijuana; providing that anyone 21 years of age or older may obtain a marijuana license permitting the person to cultivate, produce, and sell marijuana and products produced therefrom; providing that a licensed person may cultivate up to 36 cannabis plants in a location not subject to public view without optical aid; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% excise tax; providing that the state shall not impose any tax on the sale of medical marijuana to patients; permitting medical marijuana facilities established by the Arkansas Medical Marijuana Amendment of 2016 to also cultivate, produce, and sell recreational marijuana; adding additional medical conditions to the qualifying medical conditions list; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under State law; and providing that the amendment (a) is not intended to require employers to permit activities relating to marijuana in the workplace, (b) is not intended to permit driving under the influence of marijuana, (c) is not intended to permit the transfer of recreational marijuana to anyone under 21 years of age, (d) nor permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana.

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. In response to my comment numbered 11 in my letter in response to your submission numbered 2016-107, you changed the phrase "other goods" to "other items sold" in section 10 (now section 11) of the proposal. This change does not address the substance of my comment, and the proposal remains ambiguous with respect to the tax rates applicable to recreational marijuana and industrial hemp.

2. In sections 4(d)(1) and 5(g)(1), it is unclear whether the phrase "to obtain proper ..." modifies the word "citation" and whether the word "citation" is used in the sense defined in Arkansas Rule of Criminal Procedure 5.1(a).

3. In sections 4(d)(2) and (3), and 5(g)(2) and (3), it is unclear whether the monetary "penalties" stated are in addition to the maximum fine ($2,500) that may be imposed for conviction of a Class A misdemeanor. It is also unclear whether the consequences stated are intended to be exclusive of the maximum of one year's imprisonment that may be imposed for conviction of a Class A misdemeanor.

4. In section 8, it is not clear whether the phrase "providing the following provisions no later than April 20, 2019" means that the rules stated in section 8(a) through (f) need not be enforced before April 20, 2019, notwithstanding the proposal's November 7, 2018, effective date, or whether such rules may only be enforced until April 20, 2019, or something else.

5. The proposal's making modifications to the Arkansas Medical Marijuana Amendment of 2016 ("AMMA") by way of statements like "[r]egistry identification cards ... shall be replaced with a marijuana license," rather than by way of identifying and amending the precise provisions of the AMMA you wish to amend or repeal, creates uncertainty and ambiguity about the extent to which the proposal will alter the AMMA. Adding to the uncertainty is section 13 of the proposal, which provides that the proposal will supersede "conflicting [law] and other state ... provisions." (Emphasis added). The literal language of the proposal dispenses with the requirement that other "provisions" conflict with the proposal in order to be superseded. It is unclear whether the AMMA is an "other state provision" for this purpose.

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

Enclosure: Full text of the proposed Arkansas Cannabis Amendment, as submitted by the sponsor, is on file with the Office of the Attorney General. The proposed measure included sections covering the short title, effective date, definitions, regulation of industrial hemp, regulation of marijuana, additional qualifying medical conditions, marijuana paraphernalia, the Arkansas Marijuana Commission and cultivation facilities, employer/driving/minor provisions, non-violent marijuana offender release and record expungement, taxation, amendment by the General Assembly, and a conflicting-laws clause.