Why did the Arkansas AG refuse to certify Larry Morris's 2017 recreational-marijuana ballot title?

Plain-English summary

Larry B. Morris of West Fork submitted a proposed constitutional amendment titled "The Arkansas Decriminalization of Recreational Marijuana Amendment" to Attorney General Leslie Rutledge for ballot-title certification. The proposal would have legalized cultivation, production, distribution, sale, possession, and use of recreational marijuana for adults 21 and older, allowed up to 25 mature and 25 immature plants per person or business, imposed a 5% excise tax and a 2% local sales tax, and required expungement of marijuana-related convictions and the release of those currently serving sentences.

The AG rejected the proposal. Her review under Ark. Code Ann. § 7-9-107 is limited to whether the popular name and ballot title accurately summarize the proposal in a way the electorate can understand. Three internal ambiguities in the proposal text made an honest summary impossible.

First, the definition of "unprocessed recreational marijuana" in Section 3(g) used undefined terms ("development into a finished product," "product development") and was internally inconsistent: the definition described marijuana that "may be sold" or "distributed without remuneration," which seemed to swallow all recreational marijuana regardless of how it changed hands.

Second, Section 5(d) exempted "unprocessed recreational marijuana that is sold for product development" from packaging and labeling requirements. That exemption inherited the Section 3(g) ambiguities and made it unclear whether marijuana distributed without remuneration was subject to packaging requirements at all.

Third, Section 8's expungement provision was internally ambiguous. It was unclear whether the amendment would expunge only the marijuana-related convictions a person was currently serving for, or whether being currently incarcerated for any qualifying offense would expunge every marijuana-related conviction on a person's record. The phrase "other conviction not pertaining to" the listed offenses also lacked a workable boundary. Because criminal-record expungement is a high-stakes voter consideration, the AG could not certify a ballot title that left this ambiguous.

Because the AG could not even draft a substitute ballot title without resolving these underlying ambiguities, she rejected the entire submission and invited Mr. Morris to redesign the proposal and resubmit.

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: Why does the Arkansas AG review ballot titles at all?
A: Ark. Code Ann. § 7-9-107 requires the AG to certify a popular name and ballot title before initiative or referendum petitions can be circulated for signature. The AG's role is purely linguistic and structural: are the words on the petition fair, intelligible, and accurate enough that voters can make a "reasoned decision in the voting booth"?

Q: Does the AG decide whether a proposed amendment is a good idea?
A: No. The opinion is explicit on this. The AG is not authorized to consider the merits of any proposal. The review is limited to whether the popular name and ballot title accurately and impartially summarize the proposal for the electorate.

Q: What is the legal standard for a sufficient ballot title?
A: It must "honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act," be "free of any misleading tendency whether by amplification, omission, or fallacy," and not be "tinged with partisan coloring." The Arkansas Supreme Court has also said voters must be able to make a "reasoned decision" in the voting booth, with "essential facts" disclosed but the title kept brief enough to be read within the five-minute time limit at the polls.

Q: What is the AG's substitution authority?
A: Section 7-9-107(b) lets the AG substitute a more suitable popular name and ballot title if the submitted ones are insufficient but fixable. Substitution is discretionary, however. When the underlying proposal itself is too ambiguous to be summarized, substitution is impossible and the AG rejects the entire petition under § 7-9-107(c).

Q: Could Mr. Morris fix his proposal and try again?
A: Yes. The AG's rejection letter explicitly invited him to redesign the proposed measure and ballot title and resubmit at his convenience. Multiple revisions are common in Arkansas's initiative process.

Q: What does it mean that "internal inconsistencies would inevitably lead to confusion"?
A: It comes from Roberts v. Priest (2000), a leading Arkansas Supreme Court decision on ballot-title sufficiency. Where the text of a proposal is internally inconsistent, no summary can faithfully capture it. Because the AG's job is to summarize, not to redraft substantive provisions, an inconsistent proposal forecloses certification.

Background and statutory framework

The Arkansas initiative-and-referendum process gives voters direct power to amend the state constitution and pass laws. To get on the ballot, a sponsor must collect signatures, but signatures cannot be collected until the AG certifies the popular name and ballot title. That gatekeeping function ensures that what voters sign and read in the booth fairly captures what they are voting on.

The AG's certification analysis follows a body of Arkansas Supreme Court precedent. The court has rejected ballot titles for using technical terms without definition (Wilson v. Martin, 2016), for omitting "essential facts" that would give voters "serious ground for reflection" (Bailey v. McCuen, 1994), and for "partisan coloring" that biases the summary (Crochet v. Priest, 1996). The court has also recognized that ballot titles cannot "anticipate every possible legal argument" and must be brief enough to read within the polling-place time limit.

Recreational-marijuana proposals were a recurring feature of Arkansas's initiative process in the 2017 to 2018 cycle. The AG rejected several similar submissions for parallel reasons: ambiguous expungement provisions, unclear interaction with the medical marijuana amendment voters approved in 2016, and definitional inconsistencies. Each rejection invited the sponsor to redesign and resubmit.

Citations and references

Statutes:

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

Cases (all Arkansas Supreme Court):

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984)

Source

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

Original opinion text

Opinion No. 2017-047
May 3, 2017

Larry B. Morris, Sponsor
50 Crest Street
West Fork, AR 72774

Dear Mr. Morris:

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 popular name and ballot title for "The Arkansas Decriminalization of Recreational Marijuana Amendment," concerning the cannabis plant and products produced therefrom, providing that cultivation, production, distribution, sale, possession, and use of marijuana for recreational purposes by adults 21 years of age or older may not be prohibited 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, possession of marijuana paraphernalia, and or the unlawful use of communication devices to sell marijuana, and the expungement of each and every criminal records [sic] in the State relating to such conviction(s); defining recreational marijuana containing more than 0.3% THC; permitting the cultivation, production, distribution, and sale of recreational marijuana by any business or person 21 years of age or older; providing that a person or business may cultivate up to 25 mature and 25 non mature marijuana plants in a location not subject to public view without optical aid; providing that the location of 25 or more cultivating marijuana plants is put on record with the county sheriff's office; permitting the transport of recreational marijuana upon any public highway or street; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% recreational marijuana excise tax and a local sales tax of 2%; permitting any business that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana to any person 21 years of age or older; providing edibles and drinkables product-design and labeling requirements; providing that marijuana paraphernalia is lawful under State law; and providing standard exclusions for employer policies, driving under the influence, transfers to minors, and regulatory authority.

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. Section 3(g) defines "unprocessed recreational marijuana" as "harvested or unharvested, dried or undried, living or nonliving [marijuana] plants or [their] parts, that ha[ve] not been developed into a finished product, and may be sold for product development, or distributed without remuneration to any business or person 21 years of age or older."

There are undefined terms within the definition of "unprocessed recreational marijuana" that impede my ability to accurately summarize Section 3(g) in a ballot title, or apprise voters of what changes to current law would result from implementation of this section. For example, it is unclear what "develop[ment] into a finished product" entails. It is likewise unclear what the section intends by "product development." More fundamentally, because Section 3(g) references marijuana that "may be sold . . . or distributed without remuneration," it would appear that "unprocessed recreational marijuana" includes all recreational marijuana, regardless of how it is transferred. These ambiguities must be clarified before I can certify a ballot title that addresses "unprocessed recreational marijuana."

2. Section 5(d) of the proposed amendment states that "[a]ll unprocessed recreational marijuana that is sold for product development shall be exempt . . . from the design, packaging, and labeling requirements of this section."

Due to the ambiguities described with respect to Section 3(g), above, the design/packaging/labeling requirements referred to in Section 5 are impossible to accurately summarize in a ballot title. To highlight one problematic aspect, it seems from the text of Section 5(d) that the design requirements apply only to "unprocessed recreational marijuana that is sold." But "unprocessed recreational marijuana" itself is defined both as marijuana that "may be sold" and marijuana that "may be . . . distributed without remuneration." This makes it unclear whether, and to what extent, "unprocessed recreational marijuana" distributed without remuneration is subject to the design requirements of Section 5. The manner in which recreational marijuana (or unprocessed recreational marijuana) is sold and distributed is crucial to a fair summary of the amendment in a ballot title. These ambiguities must be clarified before I can certify a title that accurately describes the amendment's requirements for design, packaging, and labeling.

3. Section 8 provides that "marijuana related convictions under state law shall be expunged from all criminal records" in Arkansas, and that offenders "currently serving" a sentence for those convictions "shall be released, provided that he or she is not currently serving for other conviction not pertaining to" the marijuana related offenses listed in Section 8(a) through 8(e).

It is unclear which convictions qualify under Section 8 as "marijuana related convictions" that must be expunged. On the one hand, a reasonable voter might believe the intent is to expunge those marijuana-related convictions for which a person is currently serving a sentence. Under this interpretation, a marijuana-related conviction listed in 8(a) through 8(e) would be expunged if the sentence associated with the conviction was being served when the amendment took effect. On the other hand, a reasonable voter might conclude that if a person were currently serving a sentence for a marijuana-related conviction, then every marijuana-related conviction on that person's record must be expunged, regardless of whether the person had already served the sentence for that conviction.

It is also unclear what is intended by "other conviction not pertaining to" the convictions listed in 8(a) through 8(e). Any number of criminal convictions might reasonably "pertain," or not, to the offenses listed in Section 8. Therefore, I cannot certify a ballot title free of misleading tendencies with respect to this part of the expungement provision. Because the effect of the proposed amendment on criminal convictions is a matter of great importance to Arkansas voters, these ambiguities must be clarified before I can accurately summarize the expungement requirements in a ballot title.

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