Why did the Arkansas AG reject the second Arkansas Blue Grass cannabis ballot title submission in October 2017?

Plain-English summary

This is the second of three closely related ballot-title rejections from the same family of recreational marijuana proposals submitted to AG Leslie Rutledge in fall 2017. Opinion 2017-103 had rejected an Arkansas True Grass submission on October 6, 2017. This October 23, 2017 opinion (2017-110) addressed a follow-up submission from Arkansas Blue Grass Ballot Question Committee with substantially the same Arkansas Recreational Marijuana Amendment text. Opinion 2017-117 then rejected another iteration on November 8, 2017.

The AG rejected this submission for the same fundamental reason as the earlier one: the proposed measure's text contained ambiguities that prevented a faithful ballot-title summary, and § 7-9-107 does not give the AG authority to redraft the underlying measure to make a clean title possible.

The standards of review the AG applies in these ballot-title certifications are well-trodden Arkansas Supreme Court territory. Becker v. Riviere requires titles to honestly, intelligibly, and fairly state the proposal's purpose. Lange v. Martin requires titles to "adequately inform" voters. Wilson v. Martin prohibits unexplained technical terms. Bailey v. McCuen requires disclosure of essential facts that would give voters serious ground for reflection, and prohibits any misleading tendency or partisan coloring. Roberts v. Priest covers the situation here: when the text of the underlying measure creates "internal inconsistencies" that lead to "confusion in drafting a popular name and ballot title," the proposal cannot be approved.

Rather than substituting a corrected title, the AG rejected the submission outright. The sponsors could redesign and resubmit. They did, and Opinion 2017-117 then dealt with the next iteration, finding new defects there too.

These three 2017 opinions, taken together, illustrate the AG's certification role and its limits. The office can fix small ballot-title problems. It cannot rescue a measure whose substantive text contradicts itself or fails to define key terms. Sponsors of ballot initiatives have to do the substantive drafting work themselves before submitting.

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

Ark. Code Ann. § 7-9-107 sets the AG's three options when reviewing a popular name and ballot title:

1. Certify the submission as is.
2. Substitute and certify a more suitable popular name and ballot title.
3. Reject the entire petition if the issue is "presented in such manner that the ballot title would be misleading."

Substitute-and-certify is a corrective tool for the title. It does not authorize the AG to rewrite the underlying measure. When the measure itself is internally inconsistent or defines key terms in incompatible ways, no substituted title will faithfully summarize the proposal.

The Arkansas Supreme Court has built up a body of standards that ballot titles must meet:

Becker v. Riviere (1980): "honestly, intelligibly, and fairly set forth the purpose."

Lange v. Martin (2016): "adequately inform" voters so they can make a "reasoned decision in the voting booth." Significant omissions are disqualifying.

Wilson v. Martin (2016): technical terms not readily understood by voters need definitions in the ballot title.

Bailey v. McCuen (1994): essential facts that would give voters "serious ground for reflection" must be disclosed; titles must be "free of any misleading tendency whether by amplification, omission, or fallacy."

Roberts v. Priest (2000): when the text of the proposal itself creates inconsistency or disconnect with the ballot title, the measure cannot be approved.

The five-minute voting-booth limit in Ark. Code Ann. § 7-5-309 indirectly disciplines title length, since voters cannot read an essay in the booth.

Common questions

Why did the AG reject this submission?
Because the proposed measure had textual ambiguities that prevented a faithful ballot-title summary. Section 7-9-107 doesn't authorize the AG to redraft the measure itself to fix those problems.

Was this the same proposal rejected in Opinion 2017-103?
A close cousin, submitted by a different ballot question committee (Arkansas Blue Grass rather than Arkansas True Grass), but with substantially the same Arkansas Recreational Marijuana Amendment text. The AG flagged the same kinds of issues.

What is the relationship between 2017-103, 2017-110, and 2017-117?
All three involve the same family of cannabis amendment proposals, submitted to AG Rutledge in fall 2017, all rejected on textual-ambiguity grounds. 2017-103 came first (True Grass, October 6). 2017-110 followed (Blue Grass, October 23). 2017-117 was the last in the sequence (True Grass, November 8), with new defects identified.

Did the AG ever certify a recreational marijuana ballot title in 2017-2018?
The AG's office rejected this family of submissions repeatedly. Sponsors who want to learn what does work should look at the standards in the cited cases and at AG opinions that did certify other initiative measures.

Source

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

Original opinion text

Opinion No. 2017-110
October 23, 2017
Mary L. Berry, Officer
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Arkansas Blue Grass Ballot Question Committee
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, of whether the popular name and ballot title submitted accurately and impartially summarize the provisions of the 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.

[The full opinion sets out the same standards-of-review framework relied on in 2017-103 and 2017-117, applies it to the Blue Grass submission, and concludes that the same kind of textual ambiguities that defeated certification of the prior submission preclude certification here. The AG rejects the entire submission and invites the sponsors to redesign and resubmit. The complete proposed amendment text was attached as an enclosure to the original opinion.]

Sincerely,

LESLIE RUTLEDGE
Attorney General
Enclosure