Why did the Arkansas Attorney General reject Barry Emigh's casino-and-alcohol ballot title?

Plain-English summary

Barry Emigh, a serial ballot-initiative sponsor, submitted a popular name and ballot title for a proposed constitutional amendment that would legalize casino gambling tied to a "Fairplay Holdings Ballot Question Committee," with detailed provisions on alcoholic-beverage sales, racing-commission licensing, criminal investigation fees, and tax distribution.

Attorney General Leslie Rutledge rejected the submission. Her reasoning focused on length and complexity. Even though Emigh had reduced his title from a previous 3,000-word version to 990 words, that was still longer than any ballot title the Arkansas Supreme Court had ever approved (the longest, at 994 words, was for a measure on a topic that had already received "widely publicized attention" and "staked out the outer limits for length and complexity," per Walker v. Priest).

The AG's structural problem with the proposal was not just length, but that the underlying constitutional amendment was so complex and structurally ambiguous that any ballot title summarizing it would mislead voters. The amendment had multiple sections covering distinct subjects (committee membership, local ballot mechanics, racing commission licensing, alcohol licensing, taxes and fees, criminal background checks, license transfer rules, severability) and contained numerous internal cross-references and ambiguities. The AG cannot rewrite a proposal; she can only substitute corrected ballot-title language. Where the proposal itself is internally ambiguous, no ballot title can fix that.

The AG urged Emigh to substantially shorten and simplify the underlying amendment, then resubmit. She also urged him to consult someone with experience drafting legislation or editing legal documents.

Currency note

This opinion was issued in 2017. 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 was the Fairplay Holdings concept?
A: Emigh's amendment named the "Fairplay Holdings Ballot Question Committee" as the entity whose members would have first-round application rights for casino licenses if voters approved gambling at a local ballot measure. The AMMA-style language gave Fairplay Holdings BQC members the exclusive ability to sponsor local petitions and to apply for original gambling licenses; existing horse and greyhound tracks at Oaklawn (Garland County) and Southland (Crittenden County) were exempted. This is unusual structurally: a constitutional amendment ordinarily creates rules of general applicability, but Emigh's amendment created licensing privileges tethered to a specific named ballot committee.

Q: Why does the AG review ballot titles in the first place?
A: Under Ark. Code Ann. § 7-9-107, every proposed initiated act or constitutional amendment must have its popular name and ballot title certified by the AG before the petition can be circulated for signature. The AG checks whether the title and name fairly summarize the proposal so voters can make a "reasoned decision in the voting booth." If they do, she certifies; if they need fixing and she can fix them, she substitutes; if the proposal is fundamentally ambiguous, she rejects.

Q: What does the Arkansas Supreme Court say about ballot title length?
A: A title must be "brief and concise" enough to read within Ark. Code Ann. § 7-5-309's five-minute voting-booth limit, while still containing every "essential fact which would give the voter serious ground for reflection." That tension is real. The longest title the Court has approved was 994 words, in Walker v. Priest, on a topic the Court said had "received widely publicized attention." The Court treated even that as the outer limit for "length and complexity." So a 990-word ballot title for a complicated, low-profile amendment is on the edge.

Q: What kinds of "internal inconsistencies" did the AG flag?
A: Without listing each one, the AG said her review found ambiguities throughout the proposed amendment, and that those ambiguities could not be resolved through ballot-title drafting alone. Roberts v. Priest taught that internal inconsistencies in a proposal lead to "confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." When that happens, the AG's only legitimate move is to reject and ask the sponsor to revise the underlying text.

Q: Did the AG comment on the merits?
A: No, and she expressly said so. The AG's role under § 7-9-107 is procedural and stylistic. Whether casino gambling tied to a specific ballot committee was a good or bad policy is for the voters, not the AG. The AG declined to address constitutional infirmities (under Kurrus v. Priest and Plugge v. McCuen) unless the measure was "clearly contrary to law," reserving that doctrine for cases where there was no plausible constitutional reading.

Q: This was clearly a recurring pattern. How many times had Emigh tried?
A: This was at least the seventh attempt by Emigh on casino-style amendments, per other AG opinions in the same period. The AG's tone throughout the 2016-2017 ballot-rejection cluster was patient but pointed: she repeatedly urged Emigh to shorten and clarify the underlying text, while explaining that her statutory mandate was to the electorate, not to the sponsor.

Background and statutory framework

Arkansas's initiative process is one of the most demanding in the country for ballot-title sufficiency. The Supreme Court has rejected ballot titles for being too long, too short, too biased, too neutral, too technical, and too vague. The doctrine has settled into a relatively coherent framework: the title must be honest, impartial, brief, complete, and free of "partisan coloring."

The AG's pre-circulation review filters out the most defective titles before sponsors invest in signature collection. A failed certification is a free do-over. By contrast, a successful certification followed by a Court rejection (after signatures are collected and challenged in litigation) is expensive, time-consuming, and deeply demoralizing for sponsors. So the AG's "no" early in the process, while frustrating, is generally the cheaper failure mode.

The 2017-029 rejection fits a recurring pattern in the Rutledge AG era for ballot initiatives in cannabis, casino gambling, and ranked-choice voting: complex multi-section proposals, drafted without legal counsel, repeatedly hit the length-and-complexity wall.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2015)
• Ark. Code Ann. § 7-5-309
• Walker v. Priest, 342 Ark. 410 (2000)
• Bailey v. McCuen, 318 Ark. 277 (1994)
• Roberts v. Priest, 341 Ark. 813 (2000)
• Lange v. Martin, 2016 Ark. 337
• Wilson v. Martin, 2016 Ark. 334
• Op. Att'y Gen. 2017-016 (the prior Emigh ballot rejection referenced in this opinion)

Source

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

Original opinion text

Best-effort transcription. Some sections of the original 736-line text are abbreviated below; the linked landing page has the full opinion.

Opinion No. 2017-029
March 20, 2017
Barry Emigh, Sponsor
1104 West Seventh Street
Hot Springs, AR 71913-4225
Dear Mr. Emigh:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

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: An Amendment to the Arkansas Constitution Legalizing Gambling to the Fairplay Holdings Ballot Question Committee (BQC) Member(s) with the Sale, Service, and Complimentary Service of Alcoholic Beverages as a Local Ballot Measure.

Ballot Title: [Approximately 990 words detailing licensing of gambling tied to a specific ballot question committee, alcoholic beverage control licensing tied to gambling licenses, taxation and distribution of revenues, criminal background checks, license transfer rules, exemptions for Oaklawn and Southland race tracks, and other provisions of a multi-section constitutional amendment.]

[The full text of the proposed measure (Sections 1-18) is reproduced in the original PDF and includes detailed provisions on Fairplay Holdings BQC membership, gambling as a local ballot measure, issuance of original gambling licenses, exemptions for Oaklawn and Southland, legalized gambling, licensed gambling operations, licensed alcoholic beverage sales and service, the General Assembly's funding obligations, gambling taxes, fees, and permits, gambling regulations and restrictions, criminal investigation requirements, license reissuance, acknowledgement of risk, definitions, effect on other constitutional provisions, severability, self-execution, and application.]

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).

I highlight below the more troubling aspects of your submission.

While I note that you have shortened your most recent ballot title from approximately 3,000 words in your previous submission to 990 words, I must refer you to what I wrote in my opinion regarding your previous submission. In that opinion, I mentioned that the longest ballot title the Arkansas Supreme Court has ever approved contained 994 words. But that ballot title concerned a proposed initiated act regarding an issue that the Court noted had already received widely publicized attention, and that a 994-word ballot title "staked out the outer limits for length and complexity." In my opinion, the Court likely will not be so generous to a 990-word ballot title for a highly complex proposal to significantly amend the State's constitution, and one that has heretofore, to my knowledge, garnered little, if any, public attention.

In my most recent opinion to you, I expressed my concerns regarding the overarching problem of trying to craft a ballot title that would be acceptable to the Court for your complicated proposal:

Furthermore, and without commenting on the merits of your idea, I must conclude that your proposed measure as currently submitted is so lengthy and complex as to render it practically impossible to draft a ballot title that would meet the Court's standards for voter understanding. In my opinion, any ballot title for your proposal in its present condition would necessarily be misleading to the voters, as per the Court's standards, by virtue of [your] measure's length and complexity.

I stand by this conclusion and find it equally applicable to your current submission. I stressed to you then, and strongly reiterate here, that any revision of your proposal must be seriously undertaken with a studied effort to reduce the length and complexity of the constitutional amendment you are proposing so that a legally sufficient ballot title may be crafted.

CONCLUSION

The problems noted above are not necessarily all the problems 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 issues 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. Again, I must urge you, as I have in my previous opinions to you, to seek the advice or assistance of someone experienced in drafting legislation, editing legal documents, or both.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title.

Sincerely,
LESLIE RUTLEDGE
Attorney General

Enclosure