Why did the Arkansas AG reject Ed Frizzell's 2017 'Proportional Voting Amendment' that would have shrunk the legislature into seven multi-member senate districts and 21 multi-member house districts drawn by latitude lines?

Plain-English summary

Ed Frizzell, a Conway resident, proposed a sweeping reorganization of the Arkansas legislature: seven Senate districts (down from 35), each electing five at-large senators (35 senators total, same as today); 21 House districts (down from 100), each electing five at-large representatives (105 representatives, up from 100). Districts would be drawn not by the existing Board of Apportionment but by the State Board of Election Commissioners, using fixed latitude-based "Distribution Zones" and east-west sweeping borders. Ballot access would be by petition signatures (1% of electors, with caps), no party labels would appear on ballots, and primaries would be each party's "sole responsibility." Voting within a district would use "Multi-member Proportional Voting," with the top five vote-getters seated.

In June 2017, AG Leslie Rutledge rejected the popular name and ballot title for several reasons.

Defect 1: "Proportional Voting" is a misleading popular name. "Proportional" is a technical term in electoral systems with multiple meanings (proportional representation, proportional voting weights for membership classes, proportionality between minority population and minority-majority districts). The AG canvassed federal and California cases (Stabler, Morgan, Johnson v. De Grandy) showing the term's varied uses. As a popular name on an Arkansas ballot, it would confuse and mislead voters, in conflict with Pafford v. Hall's requirement that a popular name not be partisan or misleading.

Defect 2: Ballot title fails to describe the new districting scheme. The title said only that the new system would use "standardized permanent horizontal lines and perpendicular vertical lines which are adjusted to create districts with an equal number of voters." A reasonable voter could not, from that, understand how districts would actually be drawn. The proposal's actual mechanism (six fixed Distribution Zones at specific latitude bands, with longitudinal borders sweeping east or west alternately by zone, with ±10% adjustment to reach state lines) is technical, and the AG flagged that it might not even be capable of accurate ballot-title summary.

Defect 3: Ballot title misstates current law. The submitted title says districts are currently drawn "by legislative committees." That is wrong. Article 8 of the Arkansas Constitution (as modified by various amendments) places redistricting authority in the Board of Apportionment, which consists of the Governor, the Secretary of State, and the Attorney General. A ballot title that misrepresents existing law cannot be certified.

Defect 4: Ballot title omits major effects on primaries and political parties. The proposal would prohibit any "law respecting an establishment of or prohibiting the free exercise of any political party," forbid party labels on the ballot, and make primaries the parties' "sole responsibility." The ballot title only said the proposal "eliminat[es] the laws which give some political parties a different status." That fragment, the AG said, did not adequately tell voters about the changes to primary elections and political-party regulation.

Defect 5: Form does not comply with § 7-9-104. The submission did not follow the required initiative-petition format (with the prescribed "BE IT ENACTED BY THE PEOPLE" language and other formal requirements).

The AG also flagged that several defined terms in the proposal's definitional section never appeared again in the text, raising further internal-consistency concerns. He declined to substitute corrected language and asked Frizzell to redesign 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: How are Arkansas legislative districts actually drawn under existing law?
A: Article 8 of the Arkansas Constitution creates the Board of Apportionment, made up of the Governor, the Secretary of State, and the Attorney General, which is responsible for redrawing legislative districts after each federal census. The Board files its report with the Secretary of State by February 1 after the census, and the report becomes effective 30 days after filing unless someone petitions the Arkansas Supreme Court for revision. Harvey v. Clinton (1992) and Wells v. White (1981) plus various federal Voting Rights Act decisions have shaped the substance of redistricting.

Q: What is "Multi-member Proportional Voting" as the proposal defined it?
A: The proposal's definition: "Multi-member Proportional Voting is a method of casting and tabulating votes in which voters cast one vote as their preference, tabulation proceeds from the most preferred candidate then continues in descending order of number of votes until the required membership is filled." That is essentially single non-transferable vote (SNTV) in each five-seat district. Whether to call that "proportional" was the heart of the AG's objection to the popular name.

Q: What were the proposed district lines like?
A: The proposal split Arkansas into five fixed "Distribution Zones," each defined by exact latitude lines (Zone 1 at 35°45'N to 36°30'N, etc.). Senate districts would then be drawn by sweeping a longitudinal border east or west across each zone (alternating direction by zone) until the district reached its population quota. House districts would be three districts per Senate district, drawn by either north-south or east-west sweeps depending on whether the containing senate district was taller or wider.

Q: Why is the AG so picky about ballot titles in Arkansas?
A: The Arkansas Supreme Court has set a high bar. Cases like Lange v. Martin, Wilson v. Martin, and Bailey v. McCuen hold that voters need enough information from the title alone to make a "reasoned decision in the voting booth," because most voters will only see the title, not the full text. Misstatements of existing law and unexplained technical terms have been fatal to certifications.

Q: Does this opinion say the Frizzell proposal is unconstitutional?
A: No. The AG was explicit: "I am not your counsel in this matter and cannot advise you as to the substance of your proposal." The rejection is purely about the ballot title's adequacy, not about whether the policy itself would survive a constitutional challenge if enacted.

Q: What were the proposal's ballot-access rules?
A: Petition signatures equal to 1% of the relevant electors (capped at 300 for House offices, 1,000 for Senate, 5,000 for statewide). No filing fees. Documents due between January 2 and March 1; signatures due four months before the November election. Each party would handle its own primary. The ballot would carry only a candidate's name (no party labels, no group references).

Q: Why does the form requirement matter?
A: Section 7-9-104(a) prescribes a specific petition form including the legend "BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS" placed immediately above the proposal text, certain notices and warnings, and other elements. The AG flagged this as a procedural defect to fix on resubmission.

Background and statutory framework

Arkansas's initiative-petition system is among the more demanding in the country in terms of pre-circulation review. Section 7-9-107 makes the AG the gatekeeper, and the AG's office has built up a thick body of practice opinions interpreting the Arkansas Supreme Court's ballot-title doctrine. The standards include: the popular name must not be misleading or partisan-colored (Chaney v. Bryant, Moore v. Hall); the ballot title must give voters a fair understanding (Becker v. Riviere); voters must be able to make a "reasoned decision" from the title alone (Lange v. Martin); technical terms used without definition can defeat certification (Wilson v. Martin); essential facts that would give voters "serious ground for reflection" must appear in the title (Bailey v. McCuen); and internal inconsistencies in the proposal's text can preclude any ballot title from working (Roberts v. Priest).

The Frizzell proposal exposed many of those failure modes at once. Calling the system "proportional" tripped the technical-terms rule. Saying districts were drawn by "legislative committees" tripped the misstatement-of-existing-law rule. Mentioning party-status changes only as a fragment tripped the omission-of-essential-facts rule. The proposal's own definitional inconsistencies and unclear interaction with primaries tripped the Roberts v. Priest internal-inconsistencies rule.

The opinion is also notable as a worked example of how the AG's office handled major structural reform proposals. It does not say "this is a bad idea"; it says "voters cannot understand what they are being asked to approve." That distinction matters because reform sponsors tend to read the rejection as substantive opposition; in fact the AG carefully separates the two.

Citations and references

Statutes and constitutional provisions:

• Ark. Code Ann. § 7-9-107, popular name and ballot title certification
• Ark. Code Ann. § 7-9-104, form of initiative petition
• Ark. Const. art. 8 (existing apportionment scheme)
• Ark. Const. art. 8, § 4 (Board of Apportionment)
• Ark. Const. art. 8, § 6 (election timing after apportionment)

Cases: Standard ballot-title authorities (above), plus: Harvey v. Clinton, 308 Ark. 546 (1992) and Wells v. White, 274 Ark. 197 (1981) on legitimate redistricting bases; Morgan v. Imperial Irrigation Dist., 223 Cal. App. 4th 892 (2014), Stabler v. County of Thurston, Neb., 129 F.3d 1015 (8th Cir. 1997), and Johnson v. De Grandy, 512 U.S. 997 (1994), all illustrating the multiple meanings of "proportional" in voting law.

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked landing page is authoritative.

Opinion No. 2017-070
June 9, 2017

Ed Frizzell, Sponsor
[address redacted]
Conway, AR

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.

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.

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 Proportional Voting Amendment

Ballot Title: Amending the Arkansas Constitution changing the number of Arkansas Senate Districts from thirty-five to seven with five senators elected from each district; changing the number of Arkansas House of Representatives Districts from one hundred to twenty-one (three House Districts in each Senate District) with five representatives elected from each district; changing the way the districts are drawn in irregular shapes by legislative committees to a system that establishes the districts using standardized permanent horizontal lines and perpendicular vertical lines which are adjusted to create districts with an equal number of voters; eliminating the laws which give some political parties a different status; and changing the requirements for admission to the ballot to require all candidates to gather petition signatures equaling one percent of voters in the respective district.

Summary response

Your popular name and ballot title are impermissibly misleading and wholly deficient as a result of a failure to sufficiently summarize the substance of your proposal and 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. 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.

Application

Popular Name. Calling this measure a "proportional voting amendment" is confusing and potentially misleading. The word "proportional" is a technical term in the context of electoral systems. Its meaning can vary, depending upon the specific context and usage. Use of this term as a descriptive reference for your proposed measure is likely to confuse and mislead voters. The proposed popular name is consequently deficient, in my opinion.

Ballot Title. As explained above, the ballot title must accurately summarize the substance of your proposed measure and it must sufficiently inform the voters of the changes in current law they are being asked to approve. In my opinion, the ballot title you have submitted fails in both respects. The measure would alter the Arkansas House of Representatives by increasing its number, and it would fundamentally change existing law governing the election of members of the Arkansas House and Senate. In my view, your ballot title does not allow the average voter to fully recognize either the substance or the significance of the changes your measure proposes.

The ballot title you have submitted does not sufficiently describe the proposed districting scheme and how it varies from current law. The title only refers to the scheme as "a system that establishes the districts using standardized permanent horizontal lines and perpendicular vertical lines which are adjusted to create districts with an equal number of voters." I do not believe this adequately conveys to the voters how districts will be constituted under the system you propose or how the new districts will vary from those currently drawn. I have some concern that the highly technical process for constituting districts under your proposal is not capable of accurate and complete summation in a ballot title. But I feel certain in any event that voters will not have the information they need to make an informed decision, based on this reference to horizontal and perpendicular lines. For example, it is unclear to me how a voter faced in the voting booth with this ballot title would be able to determine how the proposed district boundaries will compare to existing legislative districts. Moreover, this ballot title fails to provide information to voters necessary to fully recognize how the new districting system will affect various other considerations that have been deemed legitimate bases for establishing legislative districts under current law, such as natural boundaries, geographic interests, incumbency, and community interest.

Additionally, your ballot title states, incorrectly, that districts are currently drawn "by legislative committees." Currently, pursuant to Article 8 of the Arkansas Constitution, the House of Representatives consists of 100 members and a "Board of Apportionment," consisting of the Governor, the Secretary of State, and the Attorney General, is responsible for reapportioning legislative districts after each federal census. The Board must, on or before February 1 immediately following each census, reapportion the state for representatives. The report of the Board is filed with the Secretary of State, and becomes effective 30 days after filing unless proceedings for revision are instituted in the Arkansas Supreme Court. Section 6 of Article 8 provides that "[a]t the next general election for State and County officers ensuing after any such apportionment, Representatives shall be elected in accordance therewith ...." The provisions of Article 8 have been modified and shaped to some extent by a number of state and federal judicial decisions. Reference to these cases is necessary for a full understanding of reapportionment requirements under current law.

As I have previously explained, it will be impossible for voters to make an informed choice between the existing law and your proposed amendment if they do not have sufficient information regarding the extent and import of the proposal, including its effects on the current law. In this regard, your ballot title fails to include sufficient information about the way your proposed measure will interact with Article 8 of the Arkansas Constitution, including section 6 of that Article regarding elections and commencement of terms of office. Your title includes no information about the individuals or entities responsible for the proposed districting system, when the districting process will occur, which offices and terms of office are affected, and how the current primary system will be affected (including the role of political parties and county boards of election commissioners).

Your ballot title must, in my opinion, be redesigned to correct these deficiencies. I am particularly mindful of the Arkansas Supreme Court's rulings that a ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law. According to the Court, most voters will look to the ballot title when they are voting in order to derive information about the proposed measure. 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 the ballot title you have submitted, be able to fully recognize all the ways your measure proposes to substantially change current law in Arkansas with respect to establishing legislative districts and electing our public officials. Fundamental revision is necessary. But as I noted before, 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.

Form of Petition. Please note that your presentation of the popular name, ballot title, and proposed measure does not conform to the guidelines under Ark. Code Ann. § 7-9-104 ("Form of initiative petition - Sufficiency of signatures"). According to section 7-9-104(a), any "petition for an ... amendment proposed by initiative shall be on substantially the following form." The statute then sets out certain language to be included in the petition immediately above the full text of the proposed measure. These formal requirements must be met when submitting an "original draft" of a petition to this office. If you have questions about this requirement, you may wish to contact the Secretary of State's office for guidance regarding the petition form.

Ambiguities. As a final note, I will mention that in the normal course, this office attempts to point out and describe any ambiguities contained in a proposal for which a ballot title is rejected because of such ambiguities. In this case, however, I have rejected your submission because of fundamental deficiencies in the ballot title as noted above. Any preparation of a list of ambiguities would go beyond the appropriate examination and certification process under Ark. Code Ann. § 7-9-107, and would be tantamount to acting as the proposal's drafter. I can say in general, however, that your proposal has several shortcomings that create ambiguity about its intent and effect.

As an example, several of the terms that are included in the text's definitional section do not appear elsewhere in the proposed amendment. Additionally, and of more fundamental concern, the effect of your proposal on primary elections and political parties is unclear. The amendment would require a candidate to obtain signatures on a petition to gain access to the ballot. And it would prevent any reference to a group, presumably including a political party, on the ballot. But it also states that each political party will be responsible for primary elections. These requirements and limitations seem inconsistent and raise questions about how your measure would affect primaries and the election laws governing primaries. Your ballot title states only that the amendment would "eliminat[e] the laws [that] give some political parties a different status." This may have reference to the provision in your proposed amendment that would prohibit "any law respecting an establishment of or prohibiting the free exercise of any political party." I do not believe the ballot title language adequately conveys the substance of this provision to the voters. But regardless, the text in this regard is itself unclear. And where the text is unclear, a sufficient ballot title cannot be drafted.

These are only a few examples of the proposal's ambiguities. You should be aware that we may call attention to a proposal's ambiguities on any review, even though they may have been embodied in an earlier version of the proposal. You may wish to re-evaluate the text of your proposed constitutional amendment in light of these observations, and in light of the above ballot-title requirements. If you have not done so already, you may wish to consult counsel. When significant aspects of the text are unclear, it is impossible to craft a ballot title that will satisfy the standards established by the Court.

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