Why did the Arkansas AG reject the 2018 Driving Arkansas Forward casino and highway funding ballot title?

Plain-English summary

Alex Gray, counsel for the Driving Arkansas Forward Ballot Question Committee, submitted a popular name and ballot title for "The Arkansas Casino Gaming and Highway Funding Amendment of 2018." The proposal would have authorized up to three casinos in specifically identified counties, taxed casino receipts at 12%, allocated 65% of the tax to highway funding, and licensed and regulated casinos through the Office of the Arkansas Lottery. The AG rejected the entire submission, citing several ambiguities in the underlying text that made a fair summary impossible.

The two largest problems were definitional. First, "casino" was defined in section 2(c) as "a facility where casino gaming is conducted," but elsewhere in the proposal it was clearly used to mean a legal entity. Section 4(j), for example, restricted "the owners, board members, or officers of the casino" from being convicted of disqualifying felonies. Owners and officers belong to entities, not facilities. Section 5(a) taxed "a casino's annual net casino gaming receipts," which could not literally apply to a facility. The AG concluded that the word's inconsistent use undermined every section that depended on it, including the licensing process, ownership rules, and tax provisions.

Second, "casino gaming" was defined to include any wagering "permitted at a casino operated within" Louisiana, Mississippi, Missouri, Oklahoma, or Texas as of November 6, 2018. November 6, 2018, was election day. What would be permitted in those states on that date could not be known when voters cast their ballots. Even setting aside the future-date problem, the AG concluded that asking voters to research what was "permitted" in five other states' casino laws was too much, citing Kurrus and Wilson for the rule that voters cannot be required to be experts.

The AG also flagged smaller issues: the popular name might overstate the highway-funding feature; the ballot title's references to "AEDC tier 2, 3, or 4" counties were technical without general currency among voters; and the title basically restated the lengthy text of the measure without simplifying it for booth-time consumption.

Currency note

This opinion was issued in 2018. 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.

How the "casino" ambiguity broke the ballot title

The proposal's section 2(c) defined casino as "a facility where casino gaming is conducted." But several other sections used "casino" in a different, broader sense:

• Section 4(j) imposed disqualifying conditions on "the owners, board members, or officers of the casino." Facilities do not have officers. The AG read this as treating "casino" as an entity.
• Section 4(t) said "[n]o individual shall own an interest in more than one casino in Arkansas." Ownership of a "facility" is conceptually possible but the language fits an entity better.
• Section 4(u) said "[a] casino may receive compensation for providing the goods and services allowed by this amendment." Compensation goes to entities, not buildings.
• Section 5(a) imposed a "12% annual net casino gaming receipts tax" on a "casino's annual net casino gaming receipts." Tax incidence is on a legal entity.

The AG identified several downstream problems. First, the licensing process was unclear: § 4(b) referenced "the licensing of casinos, including the issuance of a license to operate a casino," which suggested the license to operate could be separate from the license of the facility. That made it impossible to summarize the licensing system in a ballot title. Second, the ownership restrictions in § 4(j) and § 4(t) (no felony, no prior license revocation, age 21, no individual owning interests in multiple casinos) became impossible to interpret without knowing what "owners" meant. Did it include shareholders? Were the prohibitions tied to initial licensing only or to ongoing licensing? The text gave no answers.

The AG concluded these were not surface-level word choices. They were structural ambiguities that meant the summary itself could not be written without choosing among possible interpretations the proponents had not committed to.

How the "casino gaming" ambiguity broke the ballot title

Section 2(d) defined "casino gaming" as "dealing, operating, carrying on, conducting, maintaining, or exposing for play any game played with cards, dice, equipment, or any mechanical, electromechanical, or electronic device or machine for money, property, checks, credit, or any representative value, including, without limitation, any game, device, or type of wagering permitted at a casino operated within any one or more of the States of Louisiana, Mississippi, Missouri, Oklahoma, or Texas as of November 6, 2018."

The AG identified two problems with the second clause:

The future-date problem. November 6, 2018, was election day. What would be "permitted" in those five states on election day could not be known when ballots were cast. Voters approving the amendment would be approving an open-ended definition keyed to a future event. The AG concluded the scope and import of the proposal could not be conveyed to voters in a ballot title with that uncertainty.

The expert-voter problem. Even if the date were not in the future, asking voters to research what types of wagering were permitted in five other states' casino laws would force them to "decipher" technical multi-state gaming law. The AG cited Kurrus v. Priest for the principle that "[t]he 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."

The AG also noted (citing Wilson v. Martin) that ballot titles cannot use technical terms without general currency among voters. "Casino gaming" with a multi-state-permission hook fell into that category.

How the AEDC tier county references compounded the problem

The proposal restricted the first casino license to a "tier 4 county" identified by the Arkansas Economic Development Commission under the Consolidated Incentive Act of 2003 as of December 31, 2017, with parenthetical naming of the qualifying county (Jefferson). The second license had a "tier 3 or 4" rule, and the third was discretionary among "tier 2, 3, or 4" counties. Each tier had a fallback to "tier 2, 3, or 4" if the first-choice tier did not produce an applicant.

The ballot title basically tracked that text verbatim. The AG read this as too technical: most voters do not know what a "tier 2 county" means under the AEDC's incentive program. The references could mislead voters into thinking AEDC actions were directly connected to the casino-licensing decision, when in fact AEDC's tier classifications were just being borrowed as a way to identify counties. The Court has emphasized that "[a] voter is entitled to be informed by plain language" (Ward v. Priest).

The AG noted that simplifying the description was the proponents' job, and that the AG could not "craft a ballot title that amounts to an independent product."

Common questions

Did the casino amendment make the 2018 ballot anyway?
A different casino amendment, drafted by a separate group, did make the November 2018 ballot and passed: Issue 4 (Arkansas Casino Gaming Amendment of 2018, Amendment 100). That separately drafted measure cured the definitional and AEDC issues by directly naming four counties (Crittenden, Garland, Jefferson, and Pope). The Driving Arkansas Forward measure that this opinion rejected did not advance further in this form.

Did the highway funding tie-in matter?
The AG flagged it as a popular-name issue, not a fatal flaw. The popular name was "The Arkansas Casino Gaming and Highway Funding Amendment of 2018." The AG noted that calling it a "highway funding" measure may overstate that feature, since 65% of the casino tax revenue went to highways but the bulk of the amendment was about casino licensing and operation. The AG could not say with confidence whether the Court would find the popular name fatally misleading, but flagged the risk of partisan coloring.

Why did Sunday/Christmas/dry-county liquor language matter?
The proposal contained provisions overriding § 3-3-211 (no Christmas Day liquor sales) and § 3-9-201 (dry-county rules) for casinos. The AG did not single these out as fatal but noted that voters needed to understand they were also approving a liquor-sale exemption.

What is the popular name vs. ballot title distinction?
The popular name (Pafford v. Hall, May v. Daniels) is a labeling device. It does not need to convey detail but must not be misleading or partisan. The ballot title is the substantive summary that has to give voters a fair understanding of the issues. They are read together when judging sufficiency. A ballot title cannot save a misleading popular name and vice versa.

Could the AG have substituted language to fix the title?
The AG considered substitution but declined. The ambiguities ran in the underlying text. Substituting language in the ballot title without resolving the textual ambiguities would create disconnect between the title and the measure (Roberts v. Priest), which is its own ground for rejection. The proper response was to send the proposal back for redrafting.

Background and statutory framework

Arkansas's initiated-amendment process under Article 5, § 1 lets citizens propose constitutional amendments by petition. Section 7-9-107 codifies the AG's review role: certify, substitute and certify, or reject. The Arkansas Supreme Court has built a thick body of case law around what makes a ballot title sufficient: Becker v. Riviere (fair understanding); Pafford v. Hall (popular name's role); Bailey v. McCuen (essential-fact disclosure, no misleading tendency); Roberts v. Priest (text-title connection); Lange v. Martin and Wilson v. Martin (adequately inform, no technical undefined terms); Kurrus v. Priest (no expert-voter requirement); Ward v. Priest (plain language).

Driving Arkansas Forward was one of multiple casino-gaming initiatives circulating in the 2018 cycle. The other major one (which became Amendment 100) used a different drafting approach that survived AG review and the Supreme Court's challenge process.

Citations

• Ark. Code Ann. § 7-9-107 (popular name and ballot title certification)
• Ark. Code Ann. § 7-5-309 (five-minute booth limit)
• Ark. Code Ann. § 19-6-405 (State Highway and Transportation Department Fund)
• Ark. Code Ann. §§ 27-70-201, 27-70-206 (Arkansas Highway Revenue Distribution Law)
• Ark. Code Ann. § 3-3-211 (Christmas Day liquor sales)
• Ark. Code Ann. § 3-9-201 et seq. (dry county rules)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (fair understanding standard)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential-fact rule)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154 (adequately inform voters)
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160 (no technical undefined terms)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (no expert-voter requirement)
• Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884 (2002) (plain language)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (text-title connection)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996) (partisan coloring)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (general currency)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950) (popular name role)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004) (popular name and ballot title read together)

Source

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

Original opinion text

Opinion No. 2018-001
January 25, 2018
Alex T. Gray, Legal Counsel
STATE OF ARKANSAS
ATTORN EY GEN ERAL
LESLI E R_UTLE DGE
Driving Arkansas Forward Ballot Question Committee
c/o Steel, Wright, Gray & Hutchinson, PLLC
400 West Capitol Avenue, Suite 2910
Little Rock, AR 72201
Dear Mr. Gray:
I am writing in response to your request for certification, pursuant to Ark. Code
Ann. § 7-9-107 (Supp. 2017), of the popular name and ballot title for a proposed
initiated measure.
At the outset, I wish to make clear 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 a decision to certify or reject.
Arkansas Code Annotated 7-9-107 authorizes my office to 1) certify the popular
name and ballot title of a proposed measure, 2) substitute and certify the popular
name and ballot title, if practicable, or 3) reject the entire submission if "the ballot
title, or the nature of the issue, is presented in such manner that the ballot title
would be misleading" to voters. 1 The purpose of my review under section 7-9-107
is to ensure that the popular name and ballot title honestly, intelligibly, and fairly
set forth the purpose of the proposed amendment or act.2 In this way, voters will
1 Ark. Code Ann. § 7-9-107(c) (Supp. 2017).
2 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846, 848
( 1984).
323 CENTER STREET. SUITE 200 · LITTLE ROCK. ARKANSAS 72201
TELEPHONE (501) 682-2007 ·FAX (501) 682-8084
ARKANSASAG.GOV Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page2
have a fair understanding of the issues presented by reference to the ballot title
alone.3
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,"4 this office will not require that a measure's proponents
acknowledge in the ballot title any possible constitutional infirmities.5
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.
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 Casino Gaming and Highway Funding Amendment of 2018
Ballot Title
An amendment to the Arkansas Constitution authorizing up to three
casinos to operate in Arkansas, all being subject to the laws enacted
by the General Assembly in accord with this amendment and
regulations promulgated by the Arkansas Department of Finance and
Administration, Office of the Arkansas Lottery ("Office of the
3 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
4 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326
Ark. 353, 359, 931S.W.2d119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841S.W.2d139
(1992).
5 As part of my review, however, I may address constitutional concerns for consideration by the
measure's proponents. Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 3
Arkansas Lottery"), in accord with laws enacted by the General
Assembly; defining "casino gaming" as dealing, operating, carrying
on, conducting, maintaining, or exposing for play any game played
with cards, dice, equipment, or any mechanical, electromechanical,
or electronic device or machine for money, property, checks, credit,
or any representative value, including, without limitation, any game,
device, or type of wagering permitted at a casino operated within
any one or more of the States of Louisiana, Mississippi, Missouri,
Oklahoma, or Texas as of November 6, 2018; providing that the
Office of the Arkansas Lottery must license and regulate casinos in
accordance with regulations it establishes; providing that the Office
of the Arkansas Lottery shall award at least two but not more than
three casino licenses; providing that the Office of the Arkansas
Lottery shall set the initial maximum application fees for casino
licenses; the Office of the Arkansas Lottery shall award no more
than one license per county; requiring that the first casino license be
awarded to an applicant for a casino to be located in a county that
has been identified by the Arkansas Economic Development
Commission pursuant to the Consolidated Incentive Act of 2003 as a
tier 4 county as of December 31, 201 7, and requiring that the casino
be located in a county with a population of at least 50,000 according
to the 2010 United States Census (to-wit: Jefferson County), and if
the requirements for the first casino license are not met, then the
Office of the Arkansas Lottery shall issue the first casino license to
an applicant for a casino to be located in a county that has been
identified by the Arkansas Economic Development Commission
pursuant to the Consolidated Incentive Act of 2003 as a tier 2, 3, or 4
county as of December 31, 2017, and requiring that the casino be
located in a county with a population of at least 40,000 according to
the 2010 United States Census (to-wit: Crawford County,
Crittenden County, Jefferson County, Miller County, Mississippi
County, Pope County, Union County, or White County); requiring
that the second casino license be awarded to an applicant for a
casino to be located in a county that has been identified by the
Arkansas Economic Development Commission pursuant to the
Consolidated Incentive Act of 2003 as a tier 3 or 4 county as of
December 31, 2017, and requiring that the casino be located in a
county with a population of at least 50,000 according to the 2010
United States Census (to-wit: Crittenden County or Jefferson
County), and if the requirements for the second casino license are Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page4
not met, then the Office of the Arkansas Lottery shall issue the
second casino license to an applicant for a casino to be located in a
county that has been identified by the Arkansas Economic
Development Commission pursuant to the Consolidated Incentive
Act of 2003 as a tier 2, 3, or 4 county as of December 31, 2017, and
requiring that the casino be located in a county with a population of
at least 40,000 according to the 2010 United States Census (to-wit:
Crawford County, Crittenden County, Jefferson County, Miller
County, Mississippi County, Pope County, Union County, or White
County); requiring that if the Office of the Arkansas Lottery awards
a third casino license, the third casino license be awarded to an
applicant for a casino to be located in a county that has been
identified by the Arkansas Economic Development Commission
pursuant to the Consolidated Incentive Act of 2003 as a tier 2, 3, or 4
county as of December 31, 2017, and requiring that the casino be
located in a county with a population of at least 40,000 according to
the 2010 United States Census (to-wit: Crawford County,
Crittenden County, Jefferson County, Miller County, Mississippi
County, Pope County, Union County, or White County); the Office
of the Arkansas Lottery shall require all applicants to demonstrate
operational experience in an existing casino that provides casino
gaming; providing that the Office of the Arkansas Lottery shall
require that any application for a license be accompanied by either a
letter of support from the County Judge or a Resolution from the
County Quorum Court in the county where the applicant is
proposing the casino be located and, if the proposed casino is to be
located within a city or town, a letter of support from the Mayor in
the city or town where the applicant is proposing the casino to be
located; providing that all applicants demonstrate a minimum
investment of at least $100,000,000 for the development of each
casino facility with credit given for existing real estate value as
determined by the Office of the Arkansas Lottery; defining "annual
net casino gaming receipts" as gross receipts for a twelve-month
period from casino gaming less amounts paid out or reserved as
winnings to casino patrons for that twelve-month period; defining
"annual net casino gaming receipts tax" as a tax on gross receipts for
a twelve-month period from casino gaming less amounts paid out or
reserved as winnings to casino patrons for that twelve-month period;
providing that the annual net casino gaming receipts are subject to a
12% annual net casino gaming receipts tax; subjecting each casino to Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 5
the same income, property, sales, use, employment, and other
taxation as any for-profit business located in the county and city or
town in which the casino is located, except that the Arkansas Gross
Receipts Act of 1941 and local gross receipts taxes shall not apply to
annual net casino gaming receipts; establishing on the books of the
Treasurer of State, Auditor of State, and the chief fiscal officer of the
State a special account to be designated as the Arkansas Casino
Gaming and Highway Funding Account; providing that the net
casino gaming receipts tax shall be distributed 65% to the State
Highway and Transportation Department Fund as identified in Ark.
Code Ann. § 19-6-405 or its successor fund and apportioned to the
State Highway and Transportation Department Fund, the County Aid
Fund and the Municipal Aid Fund in the percentages provided in the
Arkansas Highway Revenue Distribution Law,§§ 27-70-201and27-
70-206, 2.5% to the Office of the Arkansas Lottery, 10% to the
county in which the casino is located, and 22.5% to the city or town
in which the casino is located and, in the event the casino is not
located within a city or town, then the county in which the casino is
located shall receive the 22.5% that would have been dedicated to
the city herein; notwithstanding Ark. Code Ann. § 3-3-211, which
prohibits the sale of intoxicating liquor on Christmas Day, allowing
a casino to operate on any day for any portion or all of any day;
notwithstanding Ark. Code Ann. § 3-9-201, et seq. and other
applicable Arkansas law requiring the residents of a dry county or
city to vote to approve the sale of intoxicating liquor, allowing the
selling or complimentary serving of intoxicating liquor in casinos
during all hours the casino operates but otherwise subjecting casinos
to all applicable Arkansas laws involving the distribution and sale of
intoxicating liquor; permitting the shipment into the Arkansas
counties where the casinos are located of gambling devices shipped
and delivered in accordance with applicable federal law; declaring
inapplicable all constitutional provisions and laws to the extent they
conflict with this amendment, but not otherwise amending,
repealing, or otherwise affecting Amendment 84 (bingo or raffles) or
Amendment 87 (state lottery) to the Arkansas Constitution, or
Arkansas Act 1151 of 2005 (Electronic Games of Skill). Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 6
GUIDELINES
The popular name is primarily a useful legislative device.6 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. 7 The popular name is to be considered together with the ballot title in
determining the ballot title's sufficiency. 8
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.9
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."10 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." 11 The Court has also disagproved the use of terms that are "technical
and not readily understood by voters." 2 Without a definition of such terms in the
ballot title, the title may be deemed insufficient.13
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."14 At the
same time, however, a ballot title must be brief and concise; 15 otherwise voters
6 Pafford v. Hall, 217 Ark. 734, 739, 233 S. W.2d 72, 75 (1950).
7 See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229
Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see
note 18 infra.
8 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
9 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
10 Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
11 Id. at 9, 500 S.W.3d at 159.
12 Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167.
13 Id, 500 S.W.3d at 167.
14 Baileyv. Mccuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
15 See Ark. Code Ann. § 7-9-107(b). Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 7
could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths
when other voters are waiting in line.16 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. 17 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." 1 The ballot title must be honest
and impartial, 19 and it must convey an intelligible idea of the scope and
significance of a proposed change in the law.20
Furthermore, the Court has confirmed that a ballot title cannot be approved if the
text of the proposed measure itself contributes to confusion and disconnect
between the language in the popular name and the ballot title and the language in
the measure.21 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."22 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.
16 Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
17 Id. at 293, 884 S.W.2d at 946-47.
18 Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by
the Arkansas Supreme Court as language that "creates a fatally misleading tendency" (Crochet v.
Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that "gives the voter only the
impression that the proponents of the proposed amendment wish to convey of the activity
represented by the words." Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884
S.W.2d 605, 610 (1994).
19 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
2° Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations
omitted).
21 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
22 Id. Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 8
RESPONSE
In my opinion, there may be some question whether the words "Highway Funding
Amendment" in your proposed popular name fairly represent that feature of the
proposed constitutional amendment. I cannot confidently predict whether the
Court would say this language in the popular name is fatally misleading. But I
believe it may overstate that feature of the measure and expose the popular name
to the argument that it tends to mislead voters or give them only the impression the
proponents wish to convey.
With regard to your proposed ballot title, it is my opinion, based on the above
guidelines established by the Court, that a number of additions or changes 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
some 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).
DISCUSSION
I highlight below the more concerning ambiguities in the text of your proposal.
Subsection 3(a) of the proposed constitutional amendment authorizes "casinos and
casino gaming" in the State of Arkansas as provided in the amendment. I believe
it will be critical to a sufficient ballot title that the voters have an intelligible idea
of the meaning of these terms and how they are used in the amendment. But
several ambiguities in the text of the measure in this regard prevent accurate
summation in the ballot title.
Meaning of "casino"
• "Casino" is defined in subsection 2( c) of the proposed amendment as "a
facility where casino gaming is conducted .... " Subsection 4(a) of the
proposal states that "[ c ]asinos shall be licensed by the Office of the
Arkansas Lottery." And subsection 4(i) establishes the requirements for an
"application to operate a casino and engage in casino gaming." Taken
together, these subsections appear to contemplate one application for a Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 9
"casino license" (see subsections 4(k)-( o )), with a "casino license" being a
license to operate a facility where casino gaming is conducted, and to
conduct casino gaming at such facility.
But section 4 of the amendment also refers to a "license to operate a casino" and
suggests that such license may be separate from the licensing of a casino facility.
See subsection 4(b) (providing that the Office of the Arkansas Lottery "shall
administer and regulate the licensing of casinos, including the issuance of a
license to operate a casino .... " (Emphasis added)). See also section 4(e)(l)
(referring to "applications for and renewal of licenses for casinos and casino
gaming;" subsection 4(f) (regarding licensing fees "for casino and casino
gaming."); subsection 4(h) (regarding "applications for licenses to operate a casino
and engage in casino gaming.").
These various references to the licensing of "casinos" and "casino gaming" create
uncertainty regarding the casino licensing process. They also render uncertain the
precise meaning of the undefined term "casino license." Subsections 4(k) through
( o) address the award of licenses in certain counties. The authority granted under
a "casino license" is plainly an essential fact that would give voters serious ground
for reflection. I realize that the General Assembly and the Office of the Arkansas
Lottery will be implementing the amendment. See subsections 3(b) and 4( c ). But
the precise meaning of these terms will be of critical importance to voters, and
accordingly I believe the ambiguities in this regard must be clarified for accurate
reflection of these important features in the ballot title.
• There are additional ambiguities surrounding the term "casino" under the
proposed measure. As noted above, "casino" is defined in subsection 2( c)
as "a facility where casino gaming is conducted .... " The meaning of
"casino" as a facility is reflected in several of the amendment's substantive
provisions. For instance, subsection 4(e)(5) requires compliance with any
zoning restrictions in the city or county "in which the casino would be
located." And subsection 4(q) requires that casino license applicants
"demonstrate a minimum investment of at least $100,000,000 for the
development of each proposed casino facility .... "
But "casino" also appears to have a different, and perhaps more expansive,
meaning. Subsection 4U) places certain limitations on "the owners, board
members, or officers of the casino." The word "casino" as used here plainly
means something other than simply a facility, and seems to suggest that the word
refers to a legal entity of some sort. See also subsection 4(t) ("No individual shall Alex T. Gray, Legal Counsel.
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 10
own an interest in more than one casino in Arkansas."); subsection 4(u) ("A casino
may receive compensation for providing the goods and services allowed by this
amendment.").
The meaning of "casino" has implications for several material aspects of the
proposed amendment. But without a clear understanding of the term, and its
various use in the proposal, some of the measure's fundamental provisions cannot
be accurately summarized for the voters in a ballot title. For example, under
subsection 5(a), "[a] casino's annual net casino gaming receipts are subject to a
12% annual net casino gaming receipts tax." The meaning of "casino" here would
plainly be significant in the mind of a reasonable voter. But it is unclear whether
this refers to something other than the "facility where casino gaming is conducted"
(the subsection 2(c) definition).
If the meaning of "casino" is not limited to a "facility" and the term includes an
entity of some sort, this also creates some uncertainty regarding "casino"
ownership. Subsection 40) imposes what appears to be some prohibitions or
disqualifying conditions on "the owners ... of the casino": "None of the owners,
board members, or officers of the casino: (1) Shall have been convicted of a
disqualifying felony offense as defined by the Office of the Arkansas Lottery; (2)
Shall have previously been an owner of a casino and had his or her license
revoked; and (3) Shall be under twenty-one years of age." The term "owners" as
used here is undefined. One question that arises is whether it includes
shareholders. Additionally, these prohibitions or disqualifications seemingly
apply only to individual human beings. If "casino" here means an entity of some
sort, this would suggest that an interest in a casino can only be held by an
individual human being. While that may not be the intent, the impression could be
reinforced by subsection 4(t), which states that "[n]o individual shall own an
interest in more than one casino in Arkansas." (Emphasis added).
The uncertain meaning of "casino" under subsection 40)-regarding "owners,
board members, or officers"-also generates confusion as to the subsection's
operation and effect. The operation of each prohibition or condition appears to
depend upon an event or status at a discrete point in time (e.g., no owner, board
member, or officer "shall have been convicted" or "shall have previously ... had
his or her [casino] license revoked," or "shall be" under the age of 21.) (Emphasis
added). But the relevant point in time is not clearly stated. Nor can it be
determined based simply upon the reference to "the casino," given the uncertainty
surrounding that term. Does casino here mean an entity, and perhaps an entity that
applies for or holds a casino license? Without some clarification of the meaning Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 11
and effect of the term "the casino" under this provision, it will be impossible to
determine precisely how subsection 40) operates. Even if we assume these are
prohibitions or disqualifying conditions in relation to licensing, it remains unclear
whether they relate to initial licensing only, or perhaps also extend to continued
licensing.
In sum, these matters relating to the meaning of "casino" under the proposed
amendment would likely be of significant concern to many voters; but without
textual clarification, I am unable to determine the intent and therefore cannot
summarize these important provisions in a ballot title.
Meaning of "casino gaming"
Subsection 2(d) of the proposed amendment defines "casino gaming" as follows:
'Casino gaming' is defined as dealing, operating, carrying on,
conducting, maintaining, or exposing for play any game played with
cards, dice, equipment, or any mechanical, electromechanical, or
electronic device or machine for money, property, checks, credit, or
any representative value including, without limitation, any game,
device, or type of wagering permitted at a casino operated within
any one or more of the States of Louisiana, Mississippi, Missouri,
Oklahoma, or Texas as of November 6, 2018.
Based on the language preceding the words "including, without limitation," the
definition essentially encompasses various activities relating to games, devices, or
machines played for money or anything else of value. But importantly, the
definition extends further and encompasses "any game, device, or type of
wagering permitted at a casino operated within" any of the five listed states" as of
"November 6, 2018." The definition's material effects are rendered uncertain by
this language regarding casino operations in other states. First and foremost, it is
impossible to know what "games[s], devices[s], or type[s] of wagering" are
included, given that the operative date (November 6, 2018) is the day of the
election. What is "permitted" will not be established in the other states before
voters go to the polls. Consequently, it will be impossible to convey the scope and
import of the definition to the voters in a ballot title.
But even if the operative date were not in the future, I believe the Arkansas
Supreme Court would have serious concerns about voters' ability to understand
the scope and consequence of the changes in law this definition of "casino Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 12
gaming" proposes. The Court has stated that "[t]he 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."23 I believe that is the situation in which the voter is
placed by the uncertain language contained in the "casino gaming" definition.
Voters would be required to decipher what "type[ s] of wagering" are "permitted"
in any one of these states, and I believe the Court would say this is something that
cannot reasonably be expected.
The Court has observed that most voters will look to the ballot title to derive
information about the proposed measure. 24 The Court has also elaborated on the
duty to describe the changes in law a proposal is to make:
[T]he elector, in voting upon a constitutional amendment, is simply
making a choice between retention of the existing law and the
substitution of something new. It is the function of the ballot title to
provide information concerning the choice that he is called upon to
make. Hence the adequacy of the title is directly related to the
degree to which it enlightens the voter with reference to the changes
that he is given the opportunity of approving. 25
The Court has also emphasized that a ballot title will be deemed insufficient if it
does not give the voters a clear understanding of the "extent and import" of the
proposal, particularly when they are being asked to amend the Constitution:
If the voter knows the extent and import of such a proposal, it is the
voter's decision, not ours, as to the wisdom of the proposal. But at
the same time the voters have placed on this court the duty and
responsibility to see that when they vote that change, or decline to
vote that change, especially one to alter their constitution, they are
23 Kurrus, 342 Ark. at 444, 29 S. W.3d at 674.
24 Wilson, 2016 Ark. at *7, 500 S.W.3d at 166 ("It has long been regarded as axiomatic that the
majority of voters, when called upon to vote for or against a proposed measure, will derive their
information about its contents from an inspection of the ballot title immediately before exercising
the right of suffrage.").
25 Bradley v. Hall, 220 Ark. 925, 927, 251 S.W.2d 470, 471 (1952). Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 13
allowed to make an intelligent choice, fully aware of the
consequences of their vote.26
Here, understanding the meaning of "casino gaming" is crucial to understanding a
critical feature of your proposed amendment. But a ballot title that recites the
above definition will not, in my view, impart that understanding. It consequently
will not allow a reasonable voter to fully recognize the ways your measure
proposes to substantially change current law in Arkansas with respect to
"gaming."
Content of popular name
Additionally, I find it necessary to reiterate the standards the Court applies in
assessing the sufficiency of popular names and ballot titles for initiated measures.
The popular name, while not held to the same stringent standards as the ballot title,
must not be misleading or color the merits of the proposal.27 Determining whether
this standard is met requires construing the popular name together with the ballot
title. 28 Taken together, the~ must "fairly represent the issue which will be
presented to the electors."2 They must be "a fair representative without
misleading tendencies or partisan coloring."30
When these standards are applied to your proposed popular name ("The Arkansas
Casino Gaming and Highway Funding Amendment of 2018"), I believe there may
be some question whether the words "Highway Funding Amendment" fairly
represent the proposed measure without any "misleading tendencies" or "partisan
coloring." On the one hand, as reflected in the ballot title, the majority of the
"12% annual net casino gaming receipts tax" under the measure will fund streets
and highways. On the other hand, this is not a comprehensive highway funding
measure. It is a comprehensive "casino gaming" measure. I cannot confidently
predict whether the Court would say calling it a "highway funding" measure is
26 Dust v. Riviere, 277 Ark. 1, 4, 638 S.W.2d 663, 665 (1982) (emphasis added).
27 See Cox v. Martin, 423 S.W.3d 75, 84, 2012 Ark. 352, 12 (citing Ferstl v. McCuen, 296 Ark.
504, 508, 758 S.W.2d 398, 400 (1988)).
28 Roberts, 341 Ark. at 821-22, 20 S.W.3d at 380-81.
29 Ferstl, 296 Ark. at 510, 758 S.W.2d at 401.
30 Id. See also Crochet v. Priest, supra note 18. Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 14
fatally misleading. But I believe this language may overstate that feature of the
measure and expose the popular name to the argument that it tends to mislead
voters or give them only the impression the proponents wish to convey.
Reference to Arkansas Economic Development Commission
As a final matter, I believe a similar issue may arise with regard to the ballot title's
language concerning the award of licenses for casinos to be located in particular
counties. The ballot title basically restates the text of the proposed amendment in
this respect, which (in subsections (m)-(o)), references the Arkansas Economic
Development Commission ("AEDC"), a 2003 act, and the identification of
counties as "tier 2, 3, or 4" counties. These are technical references that do not
have a "general currency among the public."31 Accordingly, most voters will not
readily understand what they signify in the context of your proposed amendment.
The Court has emphasized that "[a] voter is entitled to be informed by plain
language."32 I believe the proposed ballot title is deficient in this respect. I am
concerned that in simply tracking the lengthy and complex language of these
subsections, the title may be insufficient to convey to the voters an intelligible idea
of the measure's substance.
Additionally, I believe the ballot title may confuse voters and lead them to believe
there is some direct connection between AEDC's actions and the proposed
measure, including the measure's identification of counties for casino locations.
In my judgment, the expansiveness of the text in this regard does not necessarily
preclude the writing of an acceptable ballot title. It does, however, suggest the
desirability of summarizing the effect of the proposal in as simplified a manner as
possible. The precise manner of accomplishing this is, of course, a matter for you
to determine and submit to this office in draft form. While I can modify a
proposed ballot title to render it a more accurate summary of the measure, I am not
authorized to craft a ballot title that amounts to an independent product. 33
31 Christian Civic Action Committee, 318 Ark. at 248, 884 S.W.2d at 609.
32 Ward v. Priest, 350 Ark. 345, 385, 86 S.W.3d 884, 900 (2002).
33 Accord Op. Att'y Gen. 2017-122 (noting that determining whether the proposed ballot title
sufficiently informs voters of the measure's content "would require me to pick and choose
language from the text of the measure itself, which is tantamount to crafting a ballot title out of
whole cloth ... [and] beyond the scope of my authority under section 7-9-107."). Alex T. Gray, Legal Counsel
Driving Arkansas Forward BQC
Opinion No. 2018-001
Page 15
CONCLUSION
The ambiguities noted above are not necessarily all the ambiguities contained in
your proposal, but they (together with the other stated problems) 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 1s
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 fore~oing reasons and instruct you to redesign the proposed
measure and ballot title. 4
Sincerely,
~~-"·/#~7
LESLIE RUTLEDGE
Attorney General
Enclosure
34 Ark. Code Ann.§ 7-9-107(c). Popular Name
THE ARKANSAS CASINO GAMING AND HIGHWAY FUNDING AMENDMENT OF 2018
Ballot Title
An amendment to the Arkansas Constitution authorizing up to three casinos to operate in
Arkansas, all being subject to the laws enacted by the General Assembly in accord with this
amendment and regulations promulgated by the Arkansas Department of Finance and
Administration, Office of the Arkansas Lottery ("Office of the Arkansas Lottery"), in accord
with laws enacted by the General Assembly; defining "casino gaming" as dealing, operating,
carrying on, conducting, maintaining, or exposing for play any game played with cards, dice,
equipment, or any mechanical, electromechanical, or electronic device or machine for money,
property, checks, credit, or any representative value, including, without limitation, any game,
device, or type of wagering permitted at a casino operated within any one or more of the States
of Louisiana, Mississippi, Missouri, Oklahoma, or Texas as of November 6, 2018; providing that
the Office of the Arkansas Lottery must license and regulate casinos in accordance with
regulations it establishes; providing that the Office of the Arkansas Lottery shall award at least
two but not more than three casino licenses; providing that the Office of the Arkansas Lottery
shall set the initial maximum application fees for casino licenses; the Office of the Arkansas
Lottery shall award no more than one license per county; requiring that the first casino license be
awarded to an applicant for a casino to be located in a county that has been identified by the
Arkansas Economic Development Commission pursuant to the Consolidated Incentive Act of
2003 as a tier 4 county as of December 31, 2017, and requiring that the casino be located in a
county with a population of at least 50,000 according to the 2010 United States Census (to-wit:
Jefferson County), and if the requirements for the first casino license are not met, then the Office
of the Arkansas Lottery shall issue the first casino license to an applicant for a casino to be
located in a county that has been identified by the Arkansas Economic Development
Commission pursuant to the Consolidated Incentive Act of 2003 as a tier 2, 3, or 4 county as of
December 31, 2017, and requiring that the casino be located in a county with a population of at
least 40,000 according to the 2010 United States Census (to-wit: Crawford County, Crittenden
County, Jefferson County, Miller County, Mississippi County, Pope County, Union County, or
White County); requiring that the second casino license be awarded to an applicant for a casino
to be located in a county that has been identified by the Arkansas Economic Development
Commission pursuant to the Consolidated Incentive Act of 2003 as a tier 3 or 4 county as of
December 31, 2017, and requiring that the casino be located in a county with a population of at
least 50,000 according to the 2010 United States Census (to-wit: Crittenden County or Jefferson
County), and if the requirements for the second casino license are not met, then the Office of the
Arkansas Lottery shall issue the second casino license to an applicant for a casino to be located
in a county that has been identified by the Arkansas Economic Development Commission
pursuant to the Consolidated Incentive Act of 2003 as a tier 2, 3, or 4 county as of December 31,
2017, and requiring that the casino be located in a county with a population of at least 40,000
according to the 2010 United States Census (to-wit: Crawford County, Crittenden County,
Jefferson County, Miller County, Mississippi County, Pope County, Union County, or White
County); requiring that if the Office of the Arkansas Lottery awards a third casino license, the
third casino license be awarded to an applicant for a casino to be located in a county that has been identified by the Arkansas Economic Development Commission pursuant to the
Consolidated Incentive Act of 2003 as a tier 2, 3, or 4 county as of December 31, 2017, and
requiring that the casino be located in a county with a population of at least 40,000 according to
the 2010 United States Census (to-wit: Crawford County, Crittenden County, Jefferson County,
Miller County, Mississippi County, Pope County, Union County, or White County); the Office
of the Arkansas Lottery shall require all applicants to demonstrate operational experience in an
existing casino that provides casino gaming; providing that the Office of the Arkansas Lottery
shall require that any application for a license be accompanied by either a letter of support from
the County Judge or a Resolution from the County Quorum Court in the county where the
applicant is proposing the casino be located and, if the proposed casino is to be located within a
city or town, a letter of support from the Mayor in the city or town where the applicant is
proposing the casino to be located; providing that all applicants demonstrate a minimum
investment of at least $100,000,000 for the development of each casino facility with credit given
for existing real estate value as determined by the Office of the Arkansas Lottery; defining
"annual net casino gaming receipts" as gross receipts for a twelve-month period from casino
gaming less amounts paid out or reserved as winnings to casino patrons for that twelve-month
period; defining "annual net casino gaming receipts tax" as a tax on gross receipts for a twelve-
month period from casino gaming less amounts paid out or reserved as winnings to casino
patrons for that twelve-month period; providing that the annual net casino gaming receipts are
subject to a 12% annual net casino gaming receipts tax; subjecting each casino to the same
income, property, sales, use, employment, and other taxation as any for-profit business located in
the county and city or town in which the casino is located, except that the Arkansas Gross
Receipts Act of 1941 and local gross receipts taxes shall not apply to annual net casino gaming
receipts; establishing on the books of the Treasurer of State, Auditor of State, and the chief fiscal
officer of the State a special account to be designated as the Arkansas Casino Gaming and
Highway Funding Account; providing that the net casino gaming receipts tax shall be distributed
65% to the State Highway and Transportation Department Fund as identified in Ark. Code Ann.
§ 19-6-405 or its successor fund and apportioned to the State Highway and Transportation
Department Fund, the County Aid Fund and the Municipal Aid Fund in the percentages provided
in the Arkansas Highway Revenue Distribution Law, §§ 27-70-201 and 27-70-206, 2.5% to the
Office of the Arkansas Lottery, 10% to the county in which the casino is located, and 22.5% to
the city or town in which the casino is located and, in the event the casino is not located within a
city or town, then the county in which the casino is located shall receive the 22.5% that would
have been dedicated to the city herein; notwithstanding Ark. Code Ann. § 3-3-211, which
prohibits the sale of intoxicating liquor on Christmas Day, allowing a casino to operate on any
day for any portion or all of any day; notwithstanding Ark. Code Ann. § 3-9-201, et seq. and
other applicable Arkansas law requiring the residents of a dry county or city to vote to approve
the sale of intoxicating liquor, allowing the selling or complimentary serving of intoxicating
liquor in casinos during all hours the casino operates but otherwise subjecting casinos to all
applicable Arkansas laws involving the distribution and sale of intoxicating liquor; permitting the
shipment into the Arkansas counties where the casinos are located of gambling devices shipped
and delivered in accordance with applicable federal law; declaring inapplicable all constitutional
provisions and laws to the extent they conflict with this amendment, but not otherwise amending,
repealing, or otherwise affecting Amendment 84 (bingo or raffles) or Amendment 87 (state
lottery) to the Arkansas Constitution, or Arkansas Act 1151 of 2005 (Electronic Games of Skill). SECTION 1. The following is added as an amendment to the Arkansas Constitution:
§ 1. Short title.
This amendment shall be known and cited as "The Arkansas Casino Gaming and
Highway Funding Amendment of2018."
§ 2. Definitions.
(a) "Annual net casino gaming receipts" is defined as gross receipts for a twelve-month
period from casino gaming less amounts paid out or reserved as winnings to casino patrons for
that twelve-month period.
(b) "Annual net casino gaming receipts tax" is defined as a tax on gross receipts for a
twelve-month period from casino gaming less amounts paid out or reserved as winnings to
casino patrons for that twelve-month period.
(c) "Casino" is defined as a facility where casino gaming is conducted as authorized by
this Amendment.
( d) "Casino gaming" is defined as dealing, operating, carrying on, conducting,
maintaining, or exposing for play any game played with cards, dice, equipment, or any
mechanical, electromechanical, or electronic device or machine for money, property, checks,
credit, or any representative value, including, without limitation, any game, device, or type of
wagering permitted at a casino operated within any one or more of the States of Louisiana,
Mississippi, Missouri, Oklahoma, or Texas as of November 6, 2018.
( e) "Intoxicating liquor" is defined as any beverage containing more than one-half of one
percent of alcohol by weight. § 3. Authorizing Casinos and Casino Gaming.
(a) Casinos and casino gaming are hereby authorized in the State of Arkansas as
provided in this amendment.
(b) The Arkansas General Assembly shall from time to time enact laws, and appropriate
monies to or for the use of the Arkansas Department of Finance and Administration, Office of
the Arkansas Lottery ("Office of the Arkansas Lottery"), to fulfill the purpose of this
amendment. Initial laws and appropriations enacted by the General Assembly pursuant hereto
shall be in full force and effect no later than June 30, 2019.
§ 4. Licensing of Casinos and Casino Gaming.
(a) Casinos shall be licensed by the Office of the Arkansas Lottery.
(b) The Office of the Arkansas Lottery shall administer and regulate the licensing of
casinos, including the issuance of a license to operate a casino, and shall administer and enforce
the provisions of this amendment.
( c) The Office of the Arkansas Lottery shall adopt rules necessary to carry out the
purposes of this an1endment; and perform its duties under this amendment.
'
( d) Rules adopted under this section are rules as defined in the Arkansas Administrative
Procedures Act, Ark. Code Ann.§ 25-15-201 et seq.
(e) Not later than 120 days after the effective date of this amendment, the Office of the
Arkansas Lottery shall adopt rules governing:
(I) The manner in which the Office of the Arkansas Lottery considers
applications for and renewals of licenses for casinos and casino gaming;
(2) The form and content of registration and renewal of applications for casinos;
(3) Oversight requirements for casinos and casino gaming; (4) Recordkeeping requirements for casinos;
(5) Personnel requirements for casinos and casino gaming;
(6) Procedures for suspending or terminating the licenses of casinos that violate
the provisions of this amendment or the rules adopted under this amendment;
(7) A schedule of penalties and procedures for appealing penalties;
(8) Procedures for inspection and investigations of casinos and casino gaming;
and
(9) Any other matters necessary for the Office of the Arkansas Lottery's fair,
impartial, stringent, and comprehensive administration of its duties under this amendment.
(f) Not later than 120 days after the effective date of this amendment, the Office of the
Arkansas Lottery shall adopt rules establishing license-application fees and license-renewal fees
for casinos and casino gaming.
(g) The initial casino application fee shall be a maximum of $250,000.
(h) Not later than June 1, 2019, the Office of the Arkansas Lottery shall begin accepting
applications for licenses to operate a casino and engage in casino gaming.
(i) The application to operate a casino and engage in casino gaming shall include without
limitation the following:
( 1) The application fee;
(2) The legal name of the casino;
(3) The physical address of the casino;
( 4) The name, address, and date of birth of each casino agent; and (5) If the city, town, or county in which the casino would be located has enacted
zoning restrictions, a sworn statement certifying that the casino will operate in compliance with
the restrictions;
(j) None of the owners, board members, or officers of the casino:
( 1) Shall have been convicted of a disqualifying felony offense as defined by the
Office of the Arkansas Lottery;
(2) Shall have previously been an owner of a casino and had his or her license
revoked; and
(3) Shall be under twenty-one years of age.
(k) The Office of the Arkansas Lottery shall award at least two but not more than three
casino licenses.
(I) The Office of the Arkansas Lottery shall award no more than one casino license per
county.
(m) The Office of the Arkansas Lottery shall award the first casino license to an
applicant for a casino to be located in a county that has been identified by the Arkansas
Economic Development Commission pursuant to the Consolidated Incentive Act of2003 as a
tier 4 county as of December 31, 2017, and requiring that the casino be located in a county with a
population of at least 50,000 according to the 2010 United States Census (to-wit: Jefferson
County). If the requirements in this amendment for the first casino license are not met, then the
Office of the Arkansas Lottery shall issue the first casino license to an applicant for a casino to
be located in a county that has been identified by the Arkansas Economic Development
Commission pursuant to the Consolidated Incentive Act of 2003 as a tier 2, 3, or 4 county as of
December 31, 2017, and requiring that the casino be located in a county with a population of at least 40,000 according to the 2010 United States Census (to-wit: Crawford County, Crittenden
County, Jefferson County, Miller County, Mississippi County, Pope County, Union County, or
White County).
(n) The Office of the Arkansas Lottery shall award the second casino license to an
applicant for a casino to be located in a county that has been identified by the Arkansas
Economic Development Commission pursuant to the Consolidated Incentive Act of2003 as a
tier 3 or 4 county as of December 31, 2017, and requiring that the casino be located in a county
with a population of at least 50,000 according to the 2010 United States Census (to wit:
Crittenden County or Jefferson County). If the requirements in this amendment for the second
casino license are not met, then the Office of the Arkansas Lottery shall issue the second casino
license to an applicant for a casino to be located in a county that has been identified by the
Arkansas Economic Development Commission pursuant to the Consolidated Incentive Act of
2003 as a tier 2, 3, or 4 county as of December 31, 2017, and requiring that the casino be located
in a county with a population of at least 40,000 according to the 2010 United States Census (to-
wit: Crawford County, Crittenden County, Jefferson County, Miller County, Mississippi County,
Pope County, Union County, or White County).
(o) The Office of the Arkansas Lottery may award a third casino license to an applicant
for a casino to be located in a county that has been identified by the Arkansas Economic
Development Commission pursuant to the Consolidated Incentive Act of 2003 as a tier 2, 3, or 4
county as of December 31, 2017, and requiring that the casino be located in a county with a
population of at least 40,000 according to the 2010 United States Census (to-wit: Crawford
County, Crittenden County, Jefferson County, Miller County, Mississippi County, Pope County,
Union County, or White County). (p) The Office of the Arkansas Lottery shall require all applicants to demonstrate
operational experience in an existing casino that provides casino gaming.
( q) The Office of the Arkansas Lottery shall require all applicants to demonstrate a
minimum investment of at least $100,000,000 for the development of each proposed casino
facility with credit given for existing real estate value as determined by the Office of the
Arkansas Lottery.
(r) The Office of the Arkansas Lottery shall require all applications to include either a
letter of support from the County Judge or a Resolution from the Quorum Court in the county
where the proposed casino is to be located and, if the proposed casino is to be located within a
city or town, a letter of support from the Mayor in the city or town where the applicant is
proposing the casino to be located.
(s) The Office of the Arkansas Lottery may conduct a criminal background check in
order to carry out this section.
(t) No individual shall own an interest in more than one casino in Arkansas.
(u) A casino may receive compensation for providing the goods and services allowed by
this amendment.
(v) The Office of the Arkansas Lottery shall issue a renewal license within ten days to
any entity that complies with the requirements contained in this amendment, including without
limitation the payment of the renewal fee.
§ 5. Taxation and distribution of proceeds.
(a) A casino's annual net casino gaming receipts are subject to a 12% annual net casino
gaming receipts tax. (b) Each casino shall be subject to the same income, property, sales, use, employment
and other taxation as any for-profit business located in the county and city or town in which the
casino is located, except that the Arkansas Gross Receipts Act of 1941 and local gross receipts
taxes shall not apply to annual net casino gaming receipts.
( c) There is established on the books of the Treasurer of State, Auditor of State, and the
chief fiscal officer of the State a special account to be designated as the Arkansas Casino Gaming
and Highway Funding Account.
(d) The annual net casino gaming receipts tax shall be distributed 65% to the State
Highway and Transportation Department Fund as identified in Ark. Code Ann. § 19-6-405 or its
successor fund and then to be apportioned as set forth in section (e), 2.5% to the Office of the
Arkansas Lottery, 10% to the county in which the casino is located, and 22.5% to the city or
town in which the casino is located and, in the event the casino is not located within a city or
town, then the 22.5% dedicated to the city shall go to the county in which the casino is located.
( e) On the last day of each month, the Treasurer of State shall transfer the 65% of
revenues derived by the taxes levied under this amendment referenced in section ( d) to the State
Highway and Transportation Department Fund, the County Aid Fund and the Municipal Aid
Fund in the percentages provided in the Arkansas Highway Revenue Distribution Law,§ 27-70-
201 and § 2 7-70-206. Also, on the last day of each month, the Treasurer of State shall transfer
the other percentage allocations made in section ( d) to the designated entities.
§ 6. Other operational provisions.
(a) Casinos may operate on any day for any portion or all of any day.
(b) Notwithstanding Ark. Code Ann. § 3-3-211, which prohibits the sale of intoxicating
liquor on Christmas Day, and Ark. Code Ann.§ 3-9-201, et seq. and other applicable Arkansas law requiring the residents of a dry county or city to vote to approve the sale of intoxicating
liquor, casinos shall be permitted to sell intoxicating liquor or provide complimentary servings of
intoxicating liquor during all hours in which the casino operates. Casinos shall be subject to all
applicable Arkansas laws involving the distribution and sale of intoxicating liquor that do not
conflict with any provision of this amendment.
§ 7. Legal shipment of gambling devices into State.
(a) All shipments of gambling devices, including slot machines, into any county of this
State within which casino gaming is authorized, the registering, recording, and labeling of which
have been duly performed by the manufacturer and/or dealer thereof in accordance with
applicable federal law, shall be deemed legal shipments into any such county of this State within
which casino gaming is authorized.
§ 8. Effect on existing law.
(a) By adoption of this amendment, there is no implied repeal of the existing Arkansas
laws criminalizing gambling for purposes not specified in this anlendment.
(b) This amendment does not amend, repeal, or otherwise affect Amendment 84
(authorizing bingo and raffles), Amendment 87 (creating the state scholarship lottery), or Act
1151 of 2005 (authorizing electronic games of skill), to the extent those Amendments and statute
do not conflict with this amendment.
§ 9. Inconsistent provisions inapplicable.
All provisions of the Constitution of this State and statutes of this State, including
without limitation laws forbidding the judicial enforcement of gambling debts and statutes
declaring gambling to be a crime, to the extent inconsistent or in conflict with any provision of this amendment are expressly declared null and void as to, and do not apply to, any activities
allowed under this amendment.
§ 10. Severability.
If any provision or section of this amendment or the application thereof to any person or
circumstance is held invalid, such invalidity shall not affect any other provisions or application
of the amendment that can be given effect without the invalid provisions or applications, and to
this end the provisions of this amendment are declared to be severable.
SECTION 2. EFFECTIVE DA TE. This amendment shall be effective on and after November
14, 2018.