Why did the Arkansas AG reject Barry Emigh's 2017 casino-by-municipal-ballot proposal that would have given gambling licenses to a small group of named BQC members?

Plain-English summary

Hot Springs resident Barry Emigh, after multiple prior rejections, again submitted a proposed initiated act allowing municipalities of more than 20,000 people to legalize casino-style gambling by local ballot measure. Up to 15 specific people, those named as directors, officers, or members of an entity called "Association of Independent Gambling Operators BQC" filed with the Arkansas Ethics Commission before October 20, 2017, would each be issued a single transferable gambling license by the Alcoholic Beverage Control Board. The proposal carried tax rates (18% base plus tiered increases at $14M, $28M, $56M of gross), a $60,000 annual license fee, and complex revenue distribution rules.

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

Defect 1: Popular name is misleading. "An Act Legalizing Gambling by a Municipal Ballot Measure" suggests that any municipality could legalize gambling simply by passing a local ballot measure. That overstates what the proposal does (only certain pre-named BQC members would get licenses, and only in cities of 20,000+).

Defect 2: Ballot title is too long, complex, and silent on existing law. At 785 words (shorter than Emigh's earlier submissions but still excessive), the title gave too much detail in some places and too little in others. Most fundamentally, it made "virtually no mention of the sweeping changes" the act would make to existing anti-gambling laws in Title 5, Chapter 66 of the Arkansas Code. The Court has held that a ballot title must convey "an intelligible idea of the scope and significance of a proposed change in the law" (Christian Civic Action Committee); a vague final-line repealer was not enough.

Defect 3: "Any person" can enact local legislation is misleading. The title said an "act authorizing any person, pursuant to Article 5 [,] Section 1 [,] of the Arkansas Constitution, to initiate and enact local legislation as a municipal ballot measure." That implies one person can enact local law; in fact, a majority of voters must approve any initiative. Punctuation problems compounded the unintelligibility.

Defect 4: Beneficiaries are unnamed. The title and proposal repeatedly referenced an "Association of Independent Gambling Operators BQC" entity whose members would be the only people eligible for licenses. Neither the proposal nor the title identified those members. Voters would have to dig through Ethics Commission filings to find out who would benefit from the proposal's grant of "an enormous privilege." That omission, the AG said, was the kind of "essential fact which would give the voter serious ground for reflection" required to be disclosed under Bailey v. McCuen.

Defect 5: Internal inconsistencies in the text. The AG flagged two:

• Section 8 said gambling-related criminal offenses "shall be waived for the purpose of this Act," suggesting Title 5 Chapter 66 stayed in force except for permitted operators. But Section 13 said "all laws which conflict with this Act are repealed to the extent they conflict." Read literally, Section 13 would repeal the entire anti-gambling code because existing law already prohibits the conduct the act would permit. The two sections contradict each other.
• Section 12 said the act is "self executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation." Section 6, however, said the General Assembly "shall be required to make any and all laws necessary to facilitate the operation of this Act." A self-executing measure cannot also require legislation to operate.

The AG declined to substitute language and rejected the petition outright. Quoting Kurrus v. Priest: "The voter should not have to be well versed in legal interpretation in order to decipher what is meant in a proposed constitutional amendment."

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 does Arkansas regulate casino gambling generally?
A: As of 2017, Arkansas's anti-gambling laws in Ark. Code Ann. § 5-66-101 et seq. broadly prohibited gambling and the keeping of a gambling house (§ 5-66-103). The Local Option Horse Racing and Greyhound Racing Electronic Games of Skill Act (Ark. Code Ann. § 23-113-101 et seq., enacted 2005) carved out an exception for "electronic games of skill" at Oaklawn (Hot Springs) and Southland (West Memphis) racetracks. Emigh's proposal would have created a much broader exception. Casino gaming was eventually authorized through a different ballot measure, Issue 4 (Amendment 100) in 2018, not via Emigh's proposal.

Q: What is the "BQC" referenced in the proposal?
A: A Ballot Question Committee, the Arkansas equivalent of a campaign committee for ballot measures. Emigh's proposal would have given exclusive license privileges to up to 15 individuals named as directors, officers, or members of a specific BQC ("Association of Independent Gambling Operators") with the Arkansas Ethics Commission as of October 20, 2017. Voters would not know the identities at ballot time; they would have to look them up later.

Q: Why is "self-executing" a big deal?
A: A self-executing constitutional or statutory provision takes effect immediately on adoption and does not require additional legislation to make it operative. The legal opposite is a provision that needs implementing legislation. Emigh's proposal claimed both at once, requiring the legislature to enact implementing laws while declaring the measure self-executing. The AG said that contradiction left voters unable to know what role the legislature would actually play.

Q: How is "ballot title length" a problem under Arkansas law?
A: Ark. Code Ann. § 7-5-309 limits voters to five minutes in the booth when others are waiting. Page v. McCuen (1994) held that ballot titles cannot be "so complex, detailed and lengthy that the Arkansas voter could not intelligently make a choice on the title within the five minutes allowed in the voting booth." Emigh's 785-word title pushed against that line.

Q: How would the proposed tax rates have worked?
A: The proposal called for an 18% base gambling tax on net gambling income (gross minus payouts), with an additional 2% kicking in over $14M annual gross, an additional 3% over $28M, and an additional 4% over $56M. So a casino netting $60M would pay 27% on its full gross. Plus a $60,000 annual license fee, plus 1/3 of the tax revenue to the host city, plus 1/3 to the host county, plus a personal income tax withholding on individual winnings over $2,500.

Q: How does this opinion relate to Emigh's earlier submissions?
A: The opinion repeatedly references prior AG opinions to Emigh (2017-055, 2016-099, 2016-109), each rejecting earlier versions of his casino proposal. The internal-inconsistency and self-executing-versus-implementing-legislation defects were carryovers Emigh had not fixed. The AG's tone suggests fatigue: at this point, Emigh was repeating the same drafting errors across multiple submissions.

Background and statutory framework

Casino gambling in Arkansas was a recurring ballot topic through the 2010s, with several sponsors filing repeated initiated acts and constitutional amendments. The AG's office faced the unusual task of evaluating each iteration on its own merits while being aware of the lineage. This opinion to Emigh is one of several rejection letters in that long-running campaign. Casino gambling was ultimately legalized at four specified locations by Amendment 100 (Issue 4) approved by Arkansas voters in 2018, a different measure than Emigh's.

The internal-inconsistency framework comes from Roberts v. Priest, 341 Ark. 813 (2000), where the Arkansas Supreme Court held that a measure with internal contradictions cannot be cleanly summarized in a ballot title. The AG used that doctrine repeatedly to reject Emigh's submissions.

The "essential fact" omission rule comes from Bailey v. McCuen, 318 Ark. 277 (1994). The "voter cannot be required to be a legal expert" line comes from Kurrus v. Priest, 342 Ark. 434 (2000). Together, these cases set a high floor for ballot titles in Arkansas, particularly when the underlying proposal is complex.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107, popular name and ballot title certification
• Ark. Code Ann. § 5-66-101 et seq., anti-gambling laws
• Ark. Code Ann. § 5-66-103, keeping a gambling house
• Ark. Code Ann. § 23-113-101 et seq., Electronic Games of Skill Act
• Ark. Const. art. 5, § 1, initiative and referendum power

Cases: Standard ballot-title authorities (above), plus Page v. McCuen, 318 Ark. 342 (1994) on five-minute voting-booth limits, and Dust v. Riviere, 277 Ark. 1 (1982).

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. 2017-071
June 13, 2017

Barry Emigh, Sponsor
[address redacted]
Hot Springs, AR

Dear Mr. Emigh:

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 initiated act:

Popular Name: An Act Legalizing Gambling by a Municipal Ballot Measure

Ballot Title: Be it enacted by the people of the State of Arkansas, an act authorizing any person, pursuant to Article 5, Section 1, of the Arkansas Constitution, to initiate and enact local legislation as a municipal ballot measure. (a) Within any number of municipalities with a population greater than twenty thousand (20,000) people. (b) The petition and ballot shall be the same and substantially read as follows: for any person issued a gambling license by the Alcoholic Beverage Control Board to operate, and employ persons to operate, gambling with the sale and complimentary service of those controlled beverages which are permissible for on-site consumption to the public within the jurisdiction of (name of municipality). [Full title preserved in the source PDF; key provisions: up to 15 BQC members of "Association of Independent Gambling Operators" issued one gambling license each; ABC Board to regulate; 18% base tax with tiered increases; $60,000 annual license fee; revenue sharing 1/3 city / 1/3 county; not effective in Oaklawn or Southland; severability and self-executing clause.]

Application

Popular Name. Your proposed popular name, as it presently reads, suggests to the voters that "gambling," which is generally prohibited by State law, could somehow be legalized simply by way of a "municipal ballot measure." This is highly confusing and misleading, in my view. 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 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.

The ballot title for your proposed initiated act contains many of the same problems as your previously submitted ballot titles on the same subject. At 785 words, your latest ballot title is shorter than your four previous submissions, yet it is still confusing and misleading in my opinion. This continues to be a consequence of the confusing nature of your proposal's text.

Your proposed ballot title suffers from the double-edged sword of at once providing too much detail in some areas that would only serve to confuse voters and providing too little detail in other areas, omissions that, if included, might give voters "serious ground for reflection." Primarily, and of singular importance, your ballot title makes no attempt to alert the voters of the breadth and scope of changes to Arkansas law your measure would make.

As mentioned above, gambling of the type your proposed act would permit is expressly prohibited under Arkansas law, with certain exceptions, as is the "keeping of a gambling house." Your ballot title, however, makes virtually no mention of the sweeping changes your proposed act would make to established Arkansas law, aside from a general repealer at the very end of your ballot title. In my view, this would not satisfy the Arkansas Supreme Court, which has said 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 initiated act 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 comprehend how your measure proposes to substantially change current Arkansas law with respect to gambling in the State. As such, fundamental revision is necessary.

Another fundamental problem with your ballot title continues to be with reference to the local ballot option your proposed measure contemplates. As a preliminary matter, the first part of your ballot title states that your proposed act would authorize "any person, pursuant to Article 5, section 1 of the Arkansas Constitution, to initiate and enact local legislation as a municipal ballot measure." This is misleading for several reasons.

First, this language implies that a single person can enact local legislation under the auspices of Article 5, section 1 of the constitution. While one person may undertake the process by which an initiative proposal appears on a municipal ballot, clearly it takes a majority of the electors voting on the measure to enact local legislation. Second, your use of punctuation disjoins several subparts that, it appears, should be connected as a single sentence, although even this is not entirely clear. Your incorrect usage of punctuation and the disjunction it creates, in my opinion, would make the first part of your ballot title related to the local ballot measure wholly unintelligible to the reasonable voter.

Additionally, your ballot title refers to an entity called "The Ballot Question Committee named Association of Independent Gambling Operators," an entity that apparently would be given the exclusive privilege to obtain gambling licenses under your proposed act. This portion of your ballot title is very unclear and misleading. As with your previous submissions referencing a ballot question committee (albeit under a different name), your current proposal, and thus your ballot title, is silent as to who comprises, or would comprise, the membership of this entity, or who has the authority to form it or amend its organizing documents. And your proposal appears to place the burden on voters by examining documents on file with the Arkansas Ethics Commission to ascertain who those "members" are prior to casting their votes on an initiated act that would grant those "members" such an enormous privilege. But even that is not entirely clear. Your ballot-title merely, but not simply, states that "[t]he electors shall know at the time this act was certified by the Arkansas State Attorney General the names of the Independent Gambling Operators BQC members were not yet known." As an initial matter, this sentence makes no sense grammatically. Furthermore, it is misleading because the Attorney General does not "certify acts." As stated above, the Attorney General's duty under Ark. Code Ann. § 7-9-107 is to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. Accordingly, this sentence does not resolve this problem, one I brought to your attention in my previous opinion to you. In my view, the Court would see the omission in a ballot title of who stands to benefit from the exclusive privilege of being granted a license to operate gambling as a serious one, one that, if included, might give voters "serious ground for reflection."

Finally, I must reiterate as a general matter that your ballot title again appears overly long, complicated, and confusing. As I have pointed out to you, this is a consequence of the complicated and confusing nature of your proposal's text. I have cautioned you previously that the longer, more expansive, and all-encompassing a proposal is, the more difficult it is to craft a ballot title that includes every important factor but that does not then become "so complex, detailed and lengthy that the Arkansas voter could not intelligently make a choice on the title within the five minutes allowed in the voting booth."

Your ballot title must, in my opinion, be redesigned to correct these deficiencies. The precise manner in which you summarize the proposal and make clear to the voters its effects on existing law is a matter for you to determine and submit to this office in draft 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 significant shortcomings that create ambiguity about its intent and effect.

As a primary example, the text of your measure contains a fundamental inconsistency. In Section 8 of your proposed act, you state that all criminal offenses related to gambling "shall be waived for the purpose of this Act." This suggests that the penal statutes against gambling found in Title 5, Chapter 66 of the Arkansas Code would still be enforceable except to the gambling locations and games your measure would permit, a provision similar in concept, if not in language, to the statute rendering State anti-gambling laws inapplicable to what is permitted under the Electronic Games of Skill Act. Yet, in Section 13, your measure states that "[a]ll laws [that] conflict with this Act are repealed to the extent that they conflict with this Act." This suggests that all anti-gambling statutes in the Code would be repealed outright, since State law already prohibits the kind of gambling your measure proposes and thus conflict with your proposed act. These two sections of your text are in direct conflict with each other, and this conflict renders it impossible to craft a ballot title that would properly and sufficiently inform the voters of the changes in law your proposal would make.

Additionally, you have again included language, as you have with each of your previous submissions, stating that your proposed act is to be self-executing, but each submission also required the General Assembly to enact laws to implement your amendment. In my opinions regarding some of your previous submissions, I explained to you that your submissions were flawed on that point, because a document cannot be considered self-executing if it requires anything additional, such as subsequent legislation, to implement it or make it binding. I also told you that that problem would have to be cured before any popular name and ballot title could be approved. Your current submission has only exacerbated the problem by being internally inconsistent in this matter.

Section 12 of your proposed initiated act states that "[t]he provisions of this Amendment shall be self executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation." However, Section 6 of your text states that the General Assembly "shall be required to make any[] and all[] laws necessary to facilitate the operation of this Act." This internal inconsistency, wherein one part of your measure permits the legislature to enact laws in furtherance of your measure, but another part requires lawmakers to do so, is a fundamental error that precludes its inclusion in a ballot title. Moreover, either requiring or permitting the General Assembly to enact laws to help enable your proposed act directly conflicts with your proposal's declaration that it be self-executing. As I have told you before, a self-executing measure is one where no legislative action, such as clarification or "facilitation," is needed to make the measure binding. I believe the Arkansas Supreme Court would have deep concerns about the voters' ability to fully understand and appreciate the role their elected representatives would have with respect to your proposed initiated act. As the Court has stated:

The voter should not have to be well versed in legal interpretation in order to decipher what is meant in a proposed constitutional amendment. Placing the voter in a position of either having to be an expert in the [given] subject ... or having to guess as to the effect his or her vote would have is impermissible. This is precisely the dire straits in which the voter is placed by the uncertain language contained in this measure.

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.

Sincerely,

Leslie Rutledge
Attorney General