Did the Arkansas AG approve the 2017 'Arkansas Fair Voting Amendment' ballot title for ranked-choice voting and a redistricting overhaul?

Plain-English summary

Sponsor Ed Frizzell submitted a sweeping proposed constitutional amendment under the popular name "Arkansas Fair Voting Amendment." The proposal would have replaced Arkansas's redistricting process with a system of fixed latitudinal "Distribution Zones," replaced single-member legislative districts with multi-member proportional voting (five members per district), required ranked-choice voting for single-member offices, imposed petition-signature requirements equal to one percent of district voters (capped at 300/1,000/5,000 by office level), banned filing fees and ballot designation of party affiliation, and made primary elections the sole responsibility of each political party. AG Leslie Rutledge rejected both the popular name and the ballot title.

The opinion identifies four overlapping defects:

1. Partisan coloring in the popular name. The word "fair" in "Arkansas Fair Voting Amendment" was held to be partisan because few voters would vote against a measure framed as a virtue.
2. Partisan coloring in the ballot title. The phrase "to eliminate gerrymandering" took the proposal's effect as a given rather than as a contestable claim about the redistricting method.
3. Undefined technical term. The ballot title used "ranked-choice voting" without defining it. The Arkansas Supreme Court (Wilson v. Martin) had disapproved of unexplained technical terms that force voters to either be experts or guess.
4. Inadequate summary. The title only referred in a general way to the proposal's provisions and did not explain how Arkansas's existing constitutional framework (Article 6 § 3 on executive officers, Article 8 on apportionment, Amendment 80 §§ 17 and 18 on judicial elections) would change. The AG cited Bradley v. Hall (1952) for the rule that voters "must be able to understand the consequences of their votes based on the ballot title."

The AG also flagged a procedural problem under Ark. Code Ann. § 7-9-104(a): the petition's "original draft" did not identify the measure as either an "amendment to the Constitution of the State or act or ordinance," as required.

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: ranked-choice voting in 2017 Arkansas

In 2017, ranked-choice voting was not in general public currency in Arkansas. Maine had passed an initiative in 2016 to use ranked-choice voting for state and federal elections; courts and the legislature were still working out the details. The phrase had begun to circulate in policy discussions but was not familiar to most voters. The AG applied Wilson v. Martin's rule that "a highly technical definition is disfavored in ballot titles" and "the voter would be unable to reach an intelligent and informed decision for or against the proposal without an understanding of the terms and the consequences of his or her vote." Without a definition of "ranked-choice voting," the title left voters guessing.

The redistricting plan also leaned heavily on technical machinery. The proposal defined "Distribution Zones," "Distribution Quotas," "Containing Districts," "Multi-member Proportional Voting," "Highest continuing ranking," and other terms specific to the measure's mechanics. The ballot title surfaced none of those definitions or the geographic framework (zones running latitudinally between specified degrees and minutes north).

Common questions

What's wrong with calling something "fair voting"?

The Arkansas Supreme Court (Crochet v. Priest, Christian Civic Action Committee v. McCuen) treats language with built-in connotations as "tinged with partisan coloring" when it gives voters "only the impression that the proponents of the proposed amendment wish to convey." "Fair voting" frames the proposal as virtuous before voters reach the substance. The AG's view: voters can decide for themselves whether ranked-choice and multi-member proportional voting are "fair," and the popular name should not pre-stage that conclusion.

Why is "eliminate gerrymandering" partisan?

Same idea. "Gerrymandering" carries a strong negative connotation, and stating that the amendment will "eliminate" it presents a contestable factual claim (whether the proposed Distribution Zone method actually achieves that) as a settled outcome. A neutral description would describe the redistricting mechanism (latitudinal zones, fixed boundaries) and let voters draw their own conclusions about whether it eliminates partisan map-drawing.

What did the AG mean by "the ballot title fails to describe the changes in law"?

Bradley v. Hall (1952) holds that the elector "in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make." For Frizzell's proposal, that meant the ballot title needed to identify, at a minimum, the existing constitutional provisions being replaced (single-member districts under Article 8, the executive officer election rules under Article 6 § 3, and judicial elections under Amendment 80 §§ 17 and 18). Without that frame, the AG concluded a voter could not "comprehend how your measure proposes to substantially change current law in Arkansas."

Could the proposal ever have been certified?

The AG's tone toward the end of the opinion was skeptical: "[i]n the event of a challenge, I believe the Court may well conclude that the scope and import of your proposed amendment simply cannot adequately be conveyed to the voter in a ballot title." That kind of warning was the AG's standard response to constitutional amendments dense enough to risk the Page v. McCuen / Walker v. Priest "too long, too detailed, too lengthy" problem on top of the substantive defects already identified.

What about the procedural defect under § 7-9-104(a)?

Ark. Code Ann. § 7-9-104(a) requires the original petition draft to identify the measure as either "an amendment to the Constitution of the State or act or ordinance." Frizzell's submission failed to do so. Even if all the other defects had been fixed, this would have been a separate basis for rejection until the form was corrected.

Citations

• Ark. Code Ann. § 7-9-107 (AG ballot-title certification)
• Ark. Code Ann. § 7-9-104(a) (petition form requirements)
• Ark. Code Ann. § 7-5-309 (five-minute booth limit)
• Ark. Const. art. 5, § 1 (Amendment 7, citizen initiative)
• Ark. Const. art. 6, § 3 (election of executive officers)
• Ark. Const. art. 8 (apportionment of representatives)
• Ark. Const. amend. 80, §§ 17, 18 (election of Arkansas judges and justices)
• Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952) (ballot title must describe changes in law)
• Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884 (2002) (voters entitled to plain language)
• Wilson v. Martin, 2016 Ark. 334 (technical terms disfavored)
• Lange v. Martin, 2016 Ark. 337 (reasoned decision standard)
• Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994) (length and complexity)
• Walker v. Priest, 342 Ark. 410, 29 S.W.3d 657 (2000)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (partisan coloring)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996) (fatally misleading tendency)
• Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982)

Source

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

Original opinion text

Opinion No. 2017-050
May 11, 2017

Ed Frizzell, Sponsor
[address redacted]
Conway, AR 72032

Dear Mr. Frizzell:

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.

[Standard ballot-title legal framework: AG limited to procedural review, no merits consideration, brevity and impartiality requirements, technical terms must be defined, omitted essential facts must be disclosed, internal inconsistencies preclude certification.]

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 Fair Voting Amendment

Ballot Title: Amending the Arkansas Constitution concerning rules for establishing legislative districts using standardized zones to eliminate gerrymandering; establishing the number of districts for the Arkansas Senate and Arkansas House of Representatives to allow the election of multiple legislators per district; establishing requirements for admission to the ballot including petition signatures equaling one percent of voters in each district; establishing the procedures for ranked-choice voting for single-member offices; establishing the role of the State government in the affairs of political parties.

SUMMARY RESPONSE

Your popular name and ballot title are impermissibly misleading and wholly deficient in failing to fairly or completely summarize the substance of your proposal or to describe changes the proposal would make in existing state law. Additionally, pursuant to Ark. Code Ann. §§ 7-9-107(a) and 7-9-104(a) (Supp. 2015), the "original draft" of the petition must be submitted to my office in the specified form. It is clearly stated in the latter statute that the petition must identify the measure as either "an amendment to the Constitution of the State or act or ordinance ...." Your submission fails to satisfy this requirement.

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

[Legal standards: popular name as "useful legislative device" (Pafford v. Hall); ballot title impartial summary requirement (Becker v. Riviere); reasoned decision standard (Lange v. Martin); technical terms disfavored (Wilson v. Martin); essential omitted facts must be disclosed (Bailey v. McCuen); brief and concise per § 7-5-309's five-minute limit; free of misleading tendency or partisan coloring (Bailey, Crochet v. Priest, Christian Civic Action Committee v. McCuen); honest and impartial (Becker v. McCuen); intelligible idea of scope and significance (Christian Civic Action Committee).]

APPLICATION

Popular Name

The word "fair" in your proposed popular name gives "partisan coloring to the merit of the proposal," contrary to the above standards. A word like "fair" is partisan because few would vote against a measure that would appeal to a virtue such as fairness. The popular name is consequently deficient.

Ballot Title

Your ballot title also lends partisan coloring to the proposal. In stating that the proposed amendment will establish legislative districts in such a way as to "eliminate gerrymandering," it invites voters to view the proposal favorably in contrast to the negative connotations that have been associated with this catch phrase. In so doing, the ballot title fails to meet the requirement of impartiality.

Of greater significance, though, is a fundamental problem with your ballot title due to its failure to sufficiently convey the very substance of your proposed constitutional amendment to the electorate. Voters must be able to understand the consequences of their votes based on the ballot title. The Arkansas Supreme Court has consistently warned that the ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law. Additionally, voters are "entitled to be informed by plain language."

Your proposed title is wholly deficient in this respect. It merely refers in a general way to some of the measure's provisions and repeats one technical term used in the measure. This fails to meet the standards set by the Court. The ballot title you have submitted provides no real explanation of the substantive provisions that lie at the measure's heart. The title is so incomplete that a reasonable voter cannot be expected to perceive the issues involved or comprehend the scope of the proposal, which is a complex and detailed attempt to fundamentally amend the Arkansas Constitution regarding elections for state and federal offices.

Your ballot title must therefore, in my opinion, be redesigned to correct these deficiencies. The consequences of approval of your proposed constitutional amendment would doubtless be of serious concern to voters weighing the merits of your measure. A reasonable voter will not, however, based on this ballot title, be able to comprehend how your measure proposes to substantially change current law in Arkansas with respect to establishing legislative districts and electing our state and federal officials. The Arkansas Supreme Court has elaborated on the duty to describe the changes in law a proposal is to make:

It is evident that before determining the sufficiency of the present ballot title we must first ascertain what changes in the law would be brought about by the adoption of the proposed amendment. For the elector, in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving.

Without information regarding the extent to which your proposal would change current law, it will be impossible for a voter to make an informed "choice between retention of the existing law and the substitution of something new." The Court has held that "a ballot title is not insufficient merely because it fails to reflect the current state of the law." But a ballot title will be deemed insufficient if it does not give the voters a clear understanding of the "extent and import" of the proposal, particularly when they are being asked to amend the constitution:

If the voter knows the extent and import of such a proposal, it is the voter's decision, not ours, as to the wisdom of the proposal. But at the same time the voters have placed on this court the duty and responsibility to see that when they vote that change, or decline to vote that change, especially one to alter their constitution, they are allowed to make an intelligent choice, fully aware of the consequences of their vote.

The ballot title must therefore both accurately summarize the proposed measure's text and sufficiently inform the voters about the changes in current law they are being asked to approve. In my opinion, the ballot title you have submitted fails in both respects. It must be redesigned to include essential information beyond general references to the measure's provisions and terminology. Fundamental revision is necessary. But the precise manner in which you summarize the proposal and acknowledge its effects on existing law is a matter for you to determine and submit to this office in draft form. While I can modify a proposed ballot title to render it a more accurate summary of the measure, I am not legally required to craft a ballot title that amounts to an independent product. Where a proposed ballot title does not comply with the rules governing the initiative process, including the requirement to summarize the proposal and its effects in a fair, accurate, and complete manner, and the ballot title is consequently significantly misleading, this office may decline to prepare a substitute.

I should also warn that simply repeating the words or the definitions of your proposed measure will not be sufficient to meet the standards set by the Court. The term "ranked-choice voting," for instance, does not have a "general currency among the public" such that it can be assumed most voters will readily understand what that term entails. The Court has clearly disapproved the use of technical terms:

[A] highly technical definition is disfavored in ballot titles. We have disapproved the use of terms that are technical and not readily understood by voters, such that voters would be placed in a position of either having to be an expert in the subject or having to guess as to the effect his or her vote would have. ... Without a definition of [a technical term], the voter would be in the position of guessing as to the effect his or her vote would have unless he or she is an expert in the legal field. In other words, the voter would be unable to reach an intelligent and informed decision for or against the proposal without an understanding of the terms and the consequences of his or her vote.

Should you revise and resubmit your measure and ballot title to address the above concerns, you should also bear in mind that your ballot title must judiciously recite the proposed amendment's important features in an effort to avoid being inordinately detailed and lengthy. The ballot title for any measure of such length and complexity as yours must avoid both of two dangers: that of being too lengthy and that of omitting important matter. More specifically, the title cannot be so long that it causes voters to violate the voting booth time limitations, yet it must not omit any of the proposed measure's important factors. For this reason, I must point out that with any proposed amendment of considerable length and complexity such as yours, the sponsor runs the risk of a challenge and of a finding by the Court that the ballot title is unacceptable, either because it is too "complex, detailed, and lengthy," or because it has "serious omissions."

You may wish to re-evaluate the text of your proposed constitutional amendment in light of the above ballot-title requirements. In the event of a challenge, I believe the Court may well conclude that the scope and import of your proposed amendment simply cannot adequately be conveyed to the voter in a ballot title. Even when summarized accurately or verbatim, it is possible that the true contents of your measure cannot be sufficiently conveyed to the voter in a ballot title for this proposed amendment.

As guidance for you in possibly amending your proposal for resubmission, you may wish to review previous opinions of this office certifying the popular names and ballot titles for various proposed measures. They are searchable on the Office of Attorney General website: http://www.arkansasag.gov/opinions/. Additionally, if you have not done so already, you may wish to consult legal counsel or someone experienced in the drafting of laws, the editing of legal documents, or both before resubmitting your proposal. In considering whether to submit a revised proposal, you should also be aware that I may call attention to ambiguities in the measure's text on any review, even though they may have been embodied or inherent in an earlier version of the proposal.

CONCLUSION

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, philosophy, or ideology of the measure when making my determination to certify or reject a popular name and ballot title. My statutory mandate is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate. I am not your counsel in this matter and cannot advise you as to the substance of your proposal. My review has been limited to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, of whether the popular name and ballot title you have submitted accurately, impartially, and intelligibly summarize the provisions of your proposal.

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 to redesign the proposed measure and ballot title. If you wish, you may resubmit your proposed amendment along with a proposed popular name and ballot title at your convenience.

Sincerely,
LESLIE RUTLEDGE
Attorney General

[Enclosure: full text of the proposed Arkansas Fair Voting Amendment, Sections 1 through 11, with definitions covering at-large representation, AR House and Senate, Containing Districts, Current Census, Distribution Quotas, Distribution Zones, Election Threshold, Height and Width of Containing Districts, Multi-member districts and offices, Multi-member Proportional Voting, Ranked-Choice Voting, Relevant Electors; Permanent Distribution Zones running latitudinally between specified degrees and minutes north (zones one through five); rules for establishing U.S. House districts in Arkansas, AR Senate districts (7 districts, 5 at-large delegates each), and AR House districts (21 districts, 5 at-large delegates each, three per Senate Containing District); Multi-Member Proportional Voting procedures; Ranked-Choice Voting for single-member offices including U.S. Senate, U.S. House, Governor, Lieutenant Governor, Secretary of State, AG, Auditor, Treasurer, and Commissioner of State Lands; ballot access requirements with petition signatures equal to 1% of district electors capped at 300/1000/5000; ballot format restrictions banning party designation; political party autonomy for primaries; vacancy-filling by special election within five months; and a transitional clause for U.S. House multi-member districts if Congress permits.]