Why did the Arkansas AG reject Ed Frizzell's 'Multi-Member Districts Amendment' ballot title in September 2017?

Plain-English summary

Ed Frizzell, of Conway, was on his third attempt to get the AG to certify his "Arkansas Multi-Member Districts Amendment." (Earlier rejections came in Opinions 2017-050 and 2017-070.) The proposal would have radically restructured the Arkansas General Assembly:

• Cut the Senate from 35 single-member districts to 7 districts, each electing 5 senators at large (35 senators total).
• Add 5 House members for a total of 105, organized as 21 districts (3 per Senate district), each electing 5 representatives at large.
• Use latitude and longitude lines to carve districts into rectangles equalized by voter count, replacing Amendment 23's traditional reapportionment rules (which weigh community of interest, natural boundaries, geographic interests, and incumbency).
• Eliminate political affiliation from the ballot, leaving only the candidate's name.

The AG rejected the September submission for one fundamental reason: the ballot title contradicted the proposal's text. The text required population-equality districts drawn with straight lines. The ballot title described a system that would also "provide the expression of geographical, community, and political interests." Those two things cannot both be true. Either the apportionment criterion is purely population-based or it considers community/political factors as Amendment 23 currently does. The AG could not certify a ballot title that misled voters about which one Frizzell's proposal actually would do.

The AG declined to assess the popular name's adequacy in this opinion, reserving that for a future submission. The AG also flagged a continuing concern (raised in Opinion 2017-070) that the latitude/longitude district-drawing process might not be summarizable at all in a ballot title that lets voters compare the new districts to the existing ones.

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.

Background and statutory framework

Arkansas's Board of Apportionment (Governor, Secretary of State, Attorney General) was created by Amendment 23 of the Arkansas Constitution and currently draws state legislative districts after each decennial census. Under decades of case law, the Board's job is structured around several considerations the Arkansas Supreme Court has identified:

• Wells v. White, 274 Ark. 197 (1981): "the first consideration is that of equal population districts. The second guideline is the observation of local subdivision entities. A third guideline is that the reapportionment authority avoid multi-member districts whenever possible. Also, it is proper to consider existing legislative districts, communities of interest, natural boundaries, incumbency and geographic interests."
• Smith v. Board of Apportionment, 219 Ark. 611 (1951): the Board may consider the "territorial area of counties" and "convenience of electors."
• Harvey v. Clinton, 308 Ark. 546 (1992); Taylor v. Clinton, 284 Ark. 170 (1984): "[a]nother consideration in apportioning the members is insuring some voice to all political subdivisions."

Frizzell's proposal would have replaced this multi-factor approach with a mechanical rule: split the state into five horizontal "Distribution Zones" defined by latitude lines, then sweep longitudinal lines across each zone until the population in each district hit the target quota. Districts could vary by ±10% to align with state borders.

The AG's reasoning

The contradiction. The ballot title said the proposed amendment would change districting "to a system that requires the Arkansas Board of Apportionment to draw the districts using straight lines to create rectangular shapes adjusted in size to create districts with an equal number of voters." So far so good: that matches the actual text.

But the same ballot title also said the proposed amendment would "[use] the multi-member district election process to provide the expression of geographical, community, and political interests."

The AG read those two phrases against the proposal text and found a mismatch. The text required the Board to follow a deterministic geographic algorithm based purely on voter count, with no room for "geographical, community, and political interests" as separate considerations. The ballot title, however, suggested those interests would be substantively factored into the apportionment, not just incidentally captured by carving the state into five horizontal strips.

For voters, the difference is not academic. Under existing law, the Board can adjust district boundaries to keep a particular community whole, follow a river or county line, or accommodate incumbent residency. Under Frizzell's proposal, none of those adjustments would be permitted, so the practical results could differ dramatically.

No certification possible until the contradiction is resolved. Citing Roberts v. Priest, 341 Ark. 813 (2000), the AG noted that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." Until Frizzell either rewrote the ballot title to match the text or rewrote the text to match the title, the AG could not perform the statutory certification.

The bigger summarization concern. The AG mentioned, but did not need to resolve, a continuing concern from Opinion 2017-070: even with the contradiction fixed, the latitude/longitude algorithm might be too complex to fit into a ballot title that lets the average voter understand how the new districts would compare to existing ones. Some proposals are simply hard to summarize.

Common questions

Why does Arkansas use single-member districts now?
Wells v. White, 274 Ark. 197 (1981), confirmed that single-member districts are the constitutional default and "multi-member districts" should be avoided "whenever possible." The U.S. Supreme Court has historically treated multi-member districts skeptically because of dilution concerns under the Voting Rights Act, though they are not per se unconstitutional.

What's the practical effect of removing political affiliation from ballots?
The opinion does not analyze policy effects. As a structural matter, removing party labels typically benefits incumbents and well-known names. Whether voters can identify candidates' policy positions without party labels is a contested empirical question.

Did Frizzell's proposal ever clear the AG?
The opinion text references prior rejections (Ops. Att'y Gen. 2017-050, 2017-070) and this is the third in the series. The opinion does not record what happened after September 2017.

Can the AG just guess what Frizzell meant and certify a fixed title?
Not when the text and title materially contradict. Roberts v. Priest holds the AG cannot draft around an internally inconsistent proposal. The sponsor must redesign first.

What was the standard for popular name review in this case?
The AG explicitly reserved review of the popular name "until resubmission, if any." The ballot title's contradiction with the proposal text was a threshold defect that ended the review without reaching the popular name's adequacy.

Source

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

Original opinion text

Opinion No. 2017-095
September 19, 2017

Ed Frizzell, Sponsor
12 Meadow Creek
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 constitutional 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 proposed 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 following popular name and ballot title for a proposed constitutional amendment:

Popular Name

Arkansas Multi-Member Districts 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 representatives in the Arkansas House of Representatives from one hundred to one hundred and five; 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 based on natural boundaries, geographical interests, community boundaries, and political considerations as specified in Amendment 23 of the Arkansas Constitution to a system that requires the Arkansas Board of Apportionment to draw the districts using straight lines to create rectangular shapes adjusted in size to create districts with an equal number of voters; using the multi-member district election process to provide the expression of geographical, community, and political interests; change the ballot format so that only the candidate's name appears on the ballot.

RESPONSE

I am unable to proceed with a substantive review of your submission and again must reject the ballot title for your proposed constitutional amendment to redistrict the legislature. The ballot title you have submitted creates uncertainty regarding the changes in current law under your proposed constitutional amendment. The ballot title is consequently deficient, and I cannot further assess your submission without clarification of this threshold ambiguity.

(Footnote: I will reserve until resubmission, if any, reviewing the sufficiency of your proposed popular name.)

As I explained in my opinions regarding your previous submissions (Ops. Att'y Gen. 2017-070, 2017-050), the ballot title must convey to the voters an intelligible idea of the scope and significance of the changes in current law they are being asked to approve. Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible to craft a popular name and ballot title that will satisfy the standards established by the Arkansas Supreme Court.

Your proposal would fundamentally change existing law governing the way legislative districts are drawn and the membership of the legislature is apportioned. Currently, "numerical equality of the districts" is the "paramount consideration" in the formation of reapportionment plans pursuant to Article 8 of the Arkansas Constitution. But it is also proper for the apportionment authority to consider the "territorial area of counties," "convenience of electors," and the "existing legislative districts, communities of interest, natural boundaries, incumbency and geographic interests."

The ballot title you have submitted describes your proposed measure, in part, by stating that it would:

... chang[e] the way districts are drawn ... to a system that requires the Arkansas Board of Apportionment to draw the districts using straight lines to create rectangular shapes adjusted in size to create districts with an equal number of voters.

This ballot title language indicates that population equality is the objective of redistricting under your proposed constitutional amendment. This appears to be consistent with the actual text of the measure. But the ballot title you have submitted also states that the proposed amendment would "[use] the multi-member district election process to provide the expression of geographical, community, and political interests." (Emphasis added). This will indicate to voters that reapportionment under your proposal will be guided by various considerations other than simply equal population — considerations that can factor into reapportionment under existing law. However, it is not clear from the face of the actual text of your proposed amendment that redistricting will be based on any consideration other than population equality.

Your ballot title therefore creates uncertainty regarding the proposed change in law under your initiated measure. I am rejecting your submission at this time because of this confusion and disconnect between the language in your proposed ballot title and the language in the proposed measure. This fundamental ambiguity must be resolved before I can undertake a thorough, studied review of your submission.

CONCLUSION

This 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 and impartially summarize the provisions of your proposed amendment. I have set out the basic guidelines in my responses to your previous submissions and will not restate them here. The threshold ambiguity noted above is not necessarily the only ambiguity attending your submission, but it is sufficiently serious to require me to reject your popular name and ballot title. Further, additional ambiguities may well come to light on review of any revisions to your proposal.

(Footnote: I will note in particular my continued concern that the process you propose for constituting legislative districts is not capable of summation in a ballot title that will enable the average voter to fully recognize how district boundaries under your proposal will compare to existing districts. See Op. Att'y Gen. 2017-070.)

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 amendment along with a proposed popular name and ballot title at your convenience.

Sincerely,

LESLIE RUTLEDGE
Attorney General