Can an Arkansas city pass an ordinance requiring future tax measures to win two-thirds of the vote, instead of a simple majority?

Plain-English summary

State Representative James Sturch asked the AG whether a city could refer an ordinance to its voters that would, going forward, require any new city tax (or any extension or increase of an existing one) to win a two-thirds supermajority at the polls instead of a simple majority. The AG answered that no, a city ordinance could not impose such a supermajority requirement.

The reasoning rests on three layers of state law that all impose majority-vote rules on city tax referenda. First, Ark. Code Ann. § 14-55-301 authorizes a city governing body to refer an ordinance to the voters and provides that, after referral, "the procedure shall be that as required by Arkansas Constitution, Amendment 7." Amendment 7 itself states that "[a]ny measure submitted to the people as herein provided shall take effect and become law when approved by a majority of the votes cast upon such measure." Second, separate Arkansas statutes that authorize specific city taxes (such as Ark. Code Ann. § 14-43-607(a) for a city income tax in cities of the first class) require approval by a majority. Third, Amendments 30 and 31 to the Arkansas Constitution authorize a city library tax and a city tax to support police and fire pensions following a majority vote.

A city ordinance cannot override any of these. Ark. Const. art. 12, § 4 commands that "[n]o municipal corporation shall be authorized to pass any laws contrary to the general laws of the state," and Ark. Code Ann. § 14-55-101 reiterates the same constraint. Because a two-thirds-vote ordinance would conflict with the majority-vote rules in state law, it would be unconstitutional in the face of those laws.

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.

Historical context: the supremacy of state law over municipal ordinances

Arkansas treats municipalities as creatures of state law. Article 12, § 4 of the Arkansas Constitution forbids ordinances "contrary to the general laws of the state," and Ark. Code Ann. § 14-55-101 codified the same rule. The doctrine had been applied in cases like City of Fort Smith v. Housing Authority of City of Fort Smith (1974) and Nahlen v. Woods (1974). The 2017 opinion reads naturally against that background: where state law fixes a procedural rule for enacting a particular kind of measure, a city cannot adopt a stricter local rule that effectively repeals the state floor.

The opinion also flags a second reason for the rule: even initiated or referred ordinances are subject to it. Footnote 4 of the opinion (citing Op. Att'y Gen. 89-376) makes clear that Article 12, § 4's restriction "applies to ordinances that are initially proposed or adopted by the city governing body and then referred to the electors for their acceptance or rejection." A city cannot use the referendum process to escape the majority-vote rule any more than its city council can.

Common questions

Could the legislature itself create a supermajority rule?

Possibly. The General Assembly is free to amend Ark. Code Ann. § 14-55-301 or to enact higher vote thresholds for particular taxes. The opinion does not address that hypothetical and would not apply if the state itself adopted a supermajority requirement. The constraint identified is specifically that a city cannot do it on its own.

Does this affect citizen-initiated ordinances differently?

The opinion does not draw a distinction between council-referred and citizen-initiated ordinances on this point. Either way, the resulting ordinance must comply with state law. A citizen-initiated ordinance that imposed a two-thirds-vote rule on city taxes would face the same Article 12, § 4 problem, because state statutes set the majority-vote floor.

What about a city charter provision?

The opinion does not address charter cities specifically. Most Arkansas municipalities operate under the General Assembly's general municipal-government statutes; even cities operating under home-rule charters remain subject to the constitutional rule that ordinances cannot conflict with general state laws.

What was the practical motivation for the question?

State Representative Sturch's request did not name a specific city, but the broader 2010s context was a wave of "supermajority for taxes" proposals around the country. Some states (notably California under Proposition 13) had imposed supermajority rules at the state level. Arkansas did not. The AG's opinion confirmed that local jurisdictions could not impose one through the back door of an ordinance referendum.

Citations

• Ark. Const. art. 5, § 1 (Amendment 7, "Any measure submitted to the people ... shall take effect ... when approved by a majority of the votes cast")
• Ark. Const. art. 12, § 4 (no municipal laws contrary to state law)
• Ark. Const. amend. 30, §§ 2, 3 (city library tax, majority vote)
• Ark. Const. amend. 31, § 1 (city police and fire pension tax, majority vote)
• Ark. Code Ann. § 14-55-301 (city governing body may refer ordinances; majority-vote rule)
• Ark. Code Ann. § 14-55-101 (cities may enact ordinances "not inconsistent with the laws of the state")
• Ark. Code Ann. § 14-43-607(a) (city income tax for cities of first class, majority vote)
• Ark. Code Ann. §§ 24-11-404, -812 (police and fire pension tax)
• Ark. Code Ann. § 26-75-404 (parks and recreational facilities temporary tax)
• Ark. Code Ann. § 26-78-103 (county and city motor vehicle tax)
• City of Fort Smith v. Housing Authority of City of Fort Smith, 256 Ark. 254, 506 S.W.2d 534 (1974)
• Nahlen v. Woods, 255 Ark. 974, 504 S.W.2d 749 (1974)
• Op. Att'y Gen. 89-376

Source

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

Original opinion text

Opinion No. 2017-033
May 22, 2017

The Honorable James Sturch
State Representative
[address redacted]
Batesville, AR 72501-8871

Dear Representative Sturch:

This is in response to your request for my opinion on the following question:

May a city submit a proposed ordinance to the voters to require a two-thirds vote on any new tax or any extension or increase of an existing tax?

You state in this regard that you are requesting my opinion "concerning the authority of a city to require more than a majority vote on a proposed ordinance." As background for this question, you also state:

Under Arkansas Code Annotated § 14-55-301(a), the governing body of a city may refer a proposed ordinance to the people for adoption or rejection. Arkansas Code § 14-55-301(c) states, "The action of the city council shall constitute a referral to the people, and from that point the procedure shall be that as required by Arkansas Constitution, Amendment 7."

I gather from this background information that the proposed ordinance in question would provide that any future tax to be imposed by the city, whether a new tax or an extension or increase of an existing tax, must be approved by a two-thirds vote at an election on the tax. The apparent concern is that such ordinance would be contrary to Ark. Code Ann. § 14-55-301 because this statute makes Amendment 7 applicable to referrals thereunder, and Amendment 7 provides that measures submitted to the people require a majority vote.

RESPONSE

The two-thirds vote requirement in this proposed ordinance is contrary to both Ark. Code Ann. § 14-55-301 and a number of statutes and constitutional provisions that require a majority vote for passage of particular city taxes. Because a city cannot pass any laws contrary to the general laws of the state, the proposed ordinance would be unconstitutional in the face of these state laws.

DISCUSSION

The statute you have cited, Ark. Code Ann. § 14-55-301, provides general authority for a city governing body to refer ordinances to the local voters for adoption or rejection. If an ordinance is submitted to the voters pursuant to this statute, then a majority vote is required for passage. This majority vote requirement follows from section 14-55-301(c), which provides that following any such ordinance referral by the governing body, "the procedure shall be that as required by Arkansas Constitution, Amendment 7." (Emphasis added).

Amendment 7 is codified at Ark. Const. art. 5, § 1 and states in relevant part that "[a]ny measure submitted to the people as herein provided shall take effect and become law when approved by a majority of the votes cast upon such measure ...."

Section 14-55-301 thus makes Amendment 7's majority-vote requirement applicable to a tax levy ordinance that is referred to the people by the city governing body under section 14-55-301. The ordinance at issue under your question proposes, on the other hand, to require a two-thirds vote on any referred ordinance. The conflict between state law and the proposed ordinance is apparent.

The Arkansas Constitution expressly provides that "[n]o municipal corporation shall be authorized to pass any laws contrary to the general laws of the state." This principle is reiterated in the Arkansas Code. The proposed ordinance described in your question therefore must yield to section 14-55-301.

The proposed ordinance would also be contrary to a number of other statutes that authorize specific tax levies by cities, statutes that, similar to section 14-55-301, prescribe a majority vote requirement. I will not undertake an exhaustive review of these statutes. I will simply note that the proposed ordinance (with its two-thirds vote requirement) cannot constitutionally apply in the face of a statute such as the following, which authorizes a city to levy an income tax "after approval of a majority" at an election:

After approval of a majority of those voting on the question in the municipality in a general or special election, a city of the first class may levy a tax on income of individual residents of that city.

The ordinance as proposed in your question would also conflict with Amendments 30 and 31 to the Arkansas Constitution, which authorize, respectively, a city library tax and a city tax to support police and fire pensions following a majority vote at an election on the question.

In sum, if an ordinance to levy a city tax is submitted by the governing body to the voters pursuant to section 14-55-301 for adoption or rejection, then a majority vote will be sufficient under state law to approve the tax. A city ordinance cannot constitutionally require a two-thirds vote for approval. Additionally, the proposed ordinance's two-thirds vote requirement is contrary to the majority-vote requirement in numerous other controlling state statutes addressing the levy of city taxes.

Sincerely,
LESLIE RUTLEDGE
Attorney General