Why did the Arkansas AG reject Mary Berry's June 2017 cannabis amendment titled 'The Arkansas Adult Recreation of Marijuana Amendment'?

Plain-English summary

Mary L. Berry, sponsor of multiple recreational-cannabis amendments in 2017, submitted "The Arkansas Adult Recreation of Marijuana Amendment." The proposal would have legalized recreational cannabis for adults 21 and older, set up a marijuana licensing system, and taxed sales. Section 1 of the proposal, the "Short Title," declared: "This is an amendment to the Arkansas Constitution that shall be called 'The Arkansas Adult Recreation Of Marijuana Amendment.'"

In June 2017, AG Leslie Rutledge rejected the popular name and ballot title because of a wording problem in Section 1's short title that voters could not parse.

The phrase "Recreation of Marijuana" has at least three possible readings:

1. "Recreation" as a verb-noun ("recreation," in the sense of re-creating). Read this way, the popular name suggests the measure restores marijuana to a previously legal status, or somehow physically re-generates marijuana. The first reading is historically misleading (marijuana was never legal under modern Arkansas law); the second reading is conceptually nonsensical.
2. "Recreation" in the possessive sense ("Marijuana's Recreation"). This reading is grammatically unusual and not how everyday English works.
3. "Recreation" in the activity sense (recreational use of marijuana). This is presumably what Berry intended, but the wording is awkward enough that voters could plausibly read it the wrong way.

Because the awkward phrase was embedded in Section 1 as the amendment's official short title, the AG could not substitute a cleaner popular name without rewriting the text of the measure itself. The AG declined to do that and instead rejected the submission, leaving Berry to redraft the short title in Section 1 and resubmit.

This is one of three Berry submissions for recreational cannabis in 2017. Opinions 2017-0068 and 2017-0076 cover the other two, each rejected for a different reason.

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 is a single weird phrase enough to kill an entire amendment?
A: Because it was baked into the proposal as the amendment's official short title (Section 1). The popular name on the ballot has to match what the amendment will be called once enacted. If the phrase voters see on the ballot ("Adult Recreation of Marijuana") is the same phrase that Section 1 hard-codes, then any ballot-title problem with the phrase is a problem with the measure too. The AG could not rewrite Section 1 of someone else's proposal.

Q: What should Berry have called it?
A: The opinion does not say. The AG explicitly declines to act as a drafter. But "The Arkansas Adult Recreational Marijuana Amendment" or "The Arkansas Adult Use of Marijuana Amendment" are obvious examples of phrasings that avoid the "Recreation of" construction.

Q: Why is this such a careful read?
A: Arkansas's Supreme Court has repeatedly held that ballot titles must convey "an intelligible idea of the scope and significance of a proposed change in the law." When the title's central phrase has multiple plausible meanings, including ones that misstate what the measure does (e.g., implying past legality), the title fails Lange v. Martin's "reasoned decision" test. The same logic applies to the popular name once it is welded into the proposal's text.

Q: Was Berry's three-attempt sequence unusual?
A: Yes and no. Multiple submissions were common for ballot sponsors, especially when the AG's prior rejections gave specific defects to fix. Berry's three submissions in 2017 each tripped on a different defect: 2017-0068's expungement-vs-release ambiguity, 2017-0073's "Recreation of Marijuana" naming issue, and 2017-0076's effective-date inconsistency. None made it through certification.

Q: How long does it take to get an AG decision under § 7-9-107?
A: The statute does not impose a strict deadline; in practice the AG aims to respond within several weeks. Each opinion is dated, signed by the Attorney General, and forwarded to the sponsor. Sponsors who disagree can either revise and resubmit or, in rare cases, challenge the rejection in the Arkansas Supreme Court.

Background and statutory framework

Section 7-9-107 makes the AG the gatekeeper for ballot titles and popular names. The AG's review focuses on whether the popular name is misleading or partisan-colored (Pafford v. Hall, Chaney v. Bryant) and whether the ballot title is honest, impartial, intelligible, free of misleading tendencies, and adequate for voters to make a "reasoned decision" (Lange v. Martin, Bailey v. McCuen). The AG can substitute corrected language under § 7-9-107(b) if the defect can be cured by a different ballot title; if the defect is in the proposal's own text, substitution is unworkable and rejection is the result.

Berry's June 22, 2017 submission was a straightforward application of the rule: the proposal's Section 1 hard-coded a phrase the AG read as ambiguous, so no substituted ballot title could solve the problem. The opinion is short by ballot-rejection standards because the defect is narrow but fatal.

Citations and references

Statutes:

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

Cases: Standard ballot-title authorities (above); the operative principles came from Lange v. Martin (voter must be able to make reasoned decision), Wilson v. Martin (technical or unclear terms must be defined), and Roberts v. Priest (defects in the measure's text preclude a fixable ballot title).

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. 2017-073
June 22, 2017

Mary L. Berry, Sponsor
[address redacted]
Summit, AR

Dear Ms. Berry:

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.

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: The Arkansas Adult Recreation of Marijuana Amendment

Ballot Title: An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of recreational marijuana and products produced therefrom by persons 21 years of age or older may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; authorizing the use of recreational marijuana by persons 21 years of age or older; providing that a business and any resident 21 years of age or older may obtain a marijuana license permitting the business or person to cultivate, produce, and sell marijuana and products produced therefrom for recreational purposes; providing that a licensed person or business may have cultivating up to 36 marijuana plants in a location not subject to public view without optical aid; 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 person or business with a marijuana license 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 that the recreational marijuana being sold in the form of edibles or drinkables (a) shall not be designed to appeal to children; (b) shall not exceed 10 milligrams of THC per serving, and (c) labeling or packaging must provide product information; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under State law; and providing that the amendment (a) is not intended to require employers to permit activities relating to recreational marijuana in the workplace, (b) is not intended to permit driving under the influence of marijuana, (c) is not intended to permit the transfer of recreational marijuana to anyone under 21 years of age, (d) does not permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana and; (e) is not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or, any license entity pursuant to the Arkansas Medical Marijuana Amendment of 2016; providing that if the State fails to begin issuing marijuana licenses, and plant tags by April 19th, 2019 such licenses and tags shall not be required to cultivate, produce, and sell recreational marijuana until such licenses and tags are issued by the State and 30 days is given for those engaged in such activity to obtain such licenses and tags for the activity in which they are engaged.

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.

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. 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 ambiguity in the text of your proposal.

1. The first section of the text, under the heading "Short Title," states that the proposal "is an amendment to the Arkansas Constitution that shall be called 'The Arkansas Adult Recreation Of Marijuana Amendment.'" Likewise, the proposal's Popular Name is listed as "The Arkansas Adult Recreation of Marijuana Amendment."

While the measure's popular name mirrors the abridged title stated in the text of the measure, your usage of "recreation" as it appears in Section 1 would be fundamentally confusing to voters if repeated on the ballot. Essentially, it is unclear how the phrase "Recreation of Marijuana" should be construed in the text of the proposal. If "marijuana" is intended as the object of "recreation," this would imply (1) that the measure is intended to restore marijuana to legal status under Arkansas law, or (2) that the measure is intended somehow to physically re-generate marijuana in Arkansas. The first construction would be misleading to voters as a historical proposition, and the second is problematic on a conceptual level. On the other hand, if "Recreation of Marijuana" is intended as possessive (i.e., "Marijuana's Recreation"), then the phrase has a highly unusual construction not common in everyday language. As a result, the phrase would be impossible to concisely and accurately summarize for voters in a popular name. Because "Recreation of Marijuana" appears in the text of the proposed amendment (in a section stating that the amendment "shall be" known by a short title including the phrase), I cannot substitute a more suitable popular name for the measure. Therefore, I must reject your proposal as submitted.

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