Why did the Arkansas AG reject the third 'Arkansas Recreational Marijuana Amendment' submission from True Grass BQC in September 2017?

Plain-English summary

This was Mary Berry's third recreational marijuana proposal in 2017. (Earlier rejections: Opinions 2017-091 and 2017-093.) The September 22 draft attempted to address some of the AG's earlier concerns. It defined "adult" as 18+. It moved the "marijuana related offenses" list into the definitions section. It rewrote the expungement provision. But it added two new defined terms whose definitions broke down on close reading.

"Carry on" or "Carrying on" was defined as "to have possession of an item on one's body and personal effect."

The AG saw two problems:

• If "and personal effect" was meant to extend the prepositional phrase ("on one's body ... and on one's personal effect"), the construction was unusual: items are not typically described as located "on one's personal effect."
• If "and personal effect" was a separate clause, it was extraneous verbiage with no apparent meaning.

"Personal effects" was defined as "items a person has in his or her possession that they often carry with them."

The problem here was "often." The word is vague and subjective, and the proposal did not define it. Voters could not tell what frequency threshold made an item a "personal effect."

These were not minor drafting glitches. The proposal was about legalizing possession, and the entire definitional architecture of "what counts as legal possession" turned on these two terms. The AG could not write a ballot title that gave voters a fair understanding of what would actually be permitted.

The AG noted that the listed ambiguities "are not necessarily all the ambiguities contained in your proposal" and reserved the right to flag others on future review.

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

The certification framework is the same as in Opinions 2017-091 and 2017-093: under Ark. Code Ann. § 7-9-107, the AG must certify or reject ballot titles before petitions circulate. The Arkansas Supreme Court demands that ballot titles convey an intelligible idea of the scope and significance of the proposed change. Internally inconsistent or ambiguous proposals cannot be summarized adequately, so they cannot be certified.

This was the third Berry submission and the third rejection. The structural problems had shifted between drafts: Opinion 2017-091 flagged effective-date and expungement issues; Opinion 2017-093 flagged the popular-name list, the noun/verb construction, and "carry"/"recreational purposes"; this opinion focused on the new "carry on" and "personal effects" definitions.

The AG's reasoning

The "carry on" definition. Section 3(c) of the September 22 draft defined "Carry on" or "Carrying on" as "to have possession of an item on one's body and personal effect." The AG broke down the grammar:

• One reading was that "and personal effect" continued the prepositional phrase, so the items were located "on one's body" and "on one's personal effect." That reading was unusual usage. People don't typically describe items as being located "on" a personal effect.
• The other reading was that "and personal effect" was a standalone phrase, but then it had no obvious meaning. What did it mean to have an item "on one's ... personal effect"?

If the drafter intended either reading, the AG said, the section needed to convey that intent more explicitly.

The "personal effects" definition. Section 3(k) defined "personal effects" as "items a person has in his or her possession that they often carry with them." The AG focused on "often":

"Often" is a vague and subjective modifier, and it is not itself a defined term. I am therefore unable to give voters a fair understanding, in a ballot title, of what it means to carry or possess items "often."

Why these definitions mattered. The AG emphasized that possession was a primary activity the amendment was meant to legalize. The proposal referenced "possession of marijuana and marijuana paraphernalia throughout." If voters could not tell from the ballot title what kinds of possession would be legal (does carrying marijuana in a backpack count if you do not "often" carry the backpack?), they could not make a "reasoned decision in the voting booth" as required by Lange v. Martin, 2016 Ark. 337.

What this draft did fix. The AG implicitly accepted that the September 22 draft addressed several earlier concerns. The popular name list was no longer open-ended (only "The Arkansas Recreational Marijuana Amendment"). "Adult" was now defined. The "marijuana related offenses" list was moved into definitions and clarified. The expungement provision was rewritten. The AG did not flag those areas, though the closing reservation about additional ambiguities remained.

Common questions

Why are precise definitions so important in ballot measures?
Because the ballot title must convey "an intelligible idea of the scope and significance of a proposed change in the law" (Christian Civic Action Committee v. McCuen, 318 Ark. 241 (1994)). When the operative terms are circular or vague, the title cannot honestly summarize what voters are approving.

Did Berry ever get a recreational marijuana proposal certified in Arkansas?
This opinion does not record subsequent submissions. Looking at the AR opinion archive, the True Grass committee continued submitting drafts through late 2017 and into 2018. None of the 2017–2018 recreational marijuana initiatives reached the ballot. (Voter-passed recreational measures came later, with Issue 4 of 2022 reaching the ballot but failing 56-44.)

What's the practical difference between "carry on one's body" and "carry on one's personal effects"?
Real-world example: marijuana in your pocket is on your body. Marijuana in a backpack you are wearing might or might not be "on your body" depending on interpretation. Marijuana in a purse on the seat next to you is probably on a "personal effect" but not "on your body." A clear definition would tell drivers, students, employees, and police what is and is not legal. Berry's definition did not.

Why did the AG keep declining to substitute a corrected ballot title?
Section 7-9-107(b) lets the AG substitute if practicable. When the underlying proposal text is itself ambiguous, the AG cannot fix the title without effectively rewriting the proposal: and that is the sponsor's job, not the AG's. Roberts v. Priest, 341 Ark. 813 (2000), is the leading case for that limit.

How does this compare to the certified 2016 Medical Marijuana Amendment?
The 2016 amendment (Issue 6, codified as Amendment 98) was drafted by experienced election counsel, used established medical-cannabis terminology, and went through several drafts before circulation. Berry's recreational drafts were not similarly polished, and the AG's repeated rejections reflect that gap.

Source

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

Original opinion text

Opinion No. 2017-097
September 22, 2017

Mary L. Berry, Committee Officer
Arkansas True Grass BQC
Post Office Box 511
Summit, AR 72677

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 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 popular name "The Arkansas Recreational Marijuana Amendment" and a ballot title summarizing a proposed constitutional amendment to legalize recreational marijuana for adults 18 years of age or older (full text reproduced in the certification packet, as enclosed).

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.

Additionally, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." At the same time, however, a ballot title must be brief and concise; otherwise voters could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke. The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

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. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. 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 ambiguities in the text of your proposal.

Subsection 3(c) of your proposed amendment defines "carry on" or "carrying on" as "to have possession of an item on one's body and personal effect." And subsection 3(k) defines "personal effects" as "items a person has in his or her possession that they often carry with them."

These subsections contain ambiguities that must be resolved before I can accurately summarize their language in a ballot title. First, the meaning of "and personal effect" from subsection 3(c) is unclear. If it is intended as part of the prepositional phrase "on one's body ... ," this would be an unusual construction. In everyday usage, "items" are not described as being located "on one's ... personal effect." If this is the construction intended, the subsection would need to more explicitly convey this intent. On the other hand, if "and personal effect" is not governed by the prepositional phrase "on one's body," then it appears to be extraneous verbiage with no obvious meaning.

Relatedly, "personal effects" are defined in subsection 3(k) as items that people "often carry with them." "Often" is a vague and subjective modifier, and it is not itself a defined term. I am therefore unable to give voters a fair understanding, in a ballot title, of what it means to carry or possess items "often."

Your proposed amendment references possession of marijuana and marijuana paraphernalia throughout, and marijuana possession is one of the primary activities your proposed amendment seeks to legalize. It is therefore crucial that the ambiguities identified above be clarified, so that your proposal can be summarized in a ballot title that will meet the standards established by the Court.

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

Enclosure