Why did the Arkansas AG certify the 2018 minimum-wage ballot title submitted by David Couch?
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This page answers the general question as of 2018. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
David Couch's coalition submitted an initiated act to raise the Arkansas state minimum wage on a graduated schedule: from $8.50 per hour to $9.25 (Jan 1, 2019), to $10.00 (Jan 1, 2020), and to $11.00 (Jan 1, 2021). The popular name was "An Act to Increase the Arkansas Minimum Wage." The ballot title summarized the proposed amendment to Ark. Code Ann. § 11-4-210(a).
This was a recertification (Op. 2018-043A is the "A" version of Op. 2018-043) issued after the Arkansas Supreme Court's intervening decision in Couch v. Rutledge, CV-18-432. AG Rutledge certified the popular name and ballot title as submitted, with the cautionary note that significant initiated measures have a higher risk of successful ballot-title challenge.
The opinion includes the standard canvasser-and-signer instructions required by Ark. Code Ann. § 7-9-108. Sponsors must include those instructions ahead of every petition. The instructions describe the constitutional thresholds (8% of legal voters for an initiated act, 10% for a constitutional amendment), the verification information signers must provide, and the criminal penalties for petition fraud under Ark. Code Ann. § 5-55-601(b).
The measure went to the November 2018 ballot as Issue 5 and was approved by Arkansas voters.
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.
Common questions
Q: What is the difference between an initiated act and a constitutional amendment?
A: An initiated act adds or amends statutory law and requires petitions signed by 8% of legal voters. A constitutional amendment changes the Arkansas Constitution and requires 10% of legal voters. Both ultimately appear on the ballot for voter approval.
Q: What did the proposed minimum wage increase look like?
A: It amended Ark. Code Ann. § 11-4-210(a) by adding a new paragraph (3)(A): $9.25 starting Jan 1, 2019; $10.00 starting Jan 1, 2020; $11.00 starting Jan 1, 2021. The base $8.50 figure had been set in 2014 by Issue 5 of that year, with phased increases through Jan 1, 2017.
Q: What was Couch v. Rutledge?
A: A 2018 Arkansas Supreme Court case (CV-18-432) involving sponsor David Couch and AG Leslie Rutledge that produced rulings affecting how the AG's office reviewed ballot titles. The recertification here was issued "in light of" that decision, suggesting the court had narrowed or clarified some aspect of the AG's review authority that prompted the renewed certification.
Q: Why did the AG add a "cautionary note" even when certifying?
A: Experience showed that significant initiated measures get challenged in the Arkansas Supreme Court. Certification by the AG does not preclude a successful ballot-title challenge by opponents in court. The cautionary note alerts the sponsor that the bar a court may apply later is higher than the AG's threshold review.
Q: What are the canvasser instructions for?
A: They are required by Ark. Code Ann. § 7-9-108 and must precede every petition. They warn signers about the rules for valid signatures (own handwriting, in-person, registered voter, single-county petition parts) and warn canvassers and sponsors about the criminal offenses listed in Ark. Code Ann. § 5-55-601(b).
Q: What counts as "petition fraud"?
A: Class A misdemeanors with up to a $2,500 fine and up to one year in jail. Categories include: signing a name other than one's own, signing more than once, signing without legal entitlement, soliciting signatures from unqualified signers, paying signers, accepting payment for obtaining signatures off the sponsor's list, knowingly misrepresenting the petition's purpose, falsifying a verification form, and a sponsor knowingly filing a petition with false signatures.
Q: Did the opinion analyze the merits of raising the minimum wage?
A: No. The AG's role under § 7-9-107 is limited to whether the popular name and ballot title are sufficient and non-misleading. The merits are for the voters.
Background and statutory framework
Ark. Code Ann. § 7-9-107 governs AG review of popular names and ballot titles. The body of Arkansas Supreme Court doctrine on what makes a ballot title legally sufficient (impartiality, brevity, disclosure of essential facts, freedom from partisan coloring, etc.) is summarized in cases like Bailey v. McCuen, Becker v. Riviere, and Lange v. Martin. Where the underlying measure is "clearly contrary to law," the AG's office historically has identified that issue, but otherwise does not require the title to call out potential constitutional infirmities. Kurrus v. Priest, Donovan v. Priest, and Plugge v. McCuen set that line.
Arkansas's minimum wage history before this opinion: the 2014 Issue 5 raised the wage from $6.25 (set in 2006) to a phased schedule ending at $8.50 on Jan 1, 2017. The 2018 measure picked up from there.
Citations and references
Statutes:
- Ark. Code Ann. § 7-9-107 (AG ballot-title review)
- Ark. Code Ann. § 7-9-108 (instructions to canvassers and signers)
- Ark. Code Ann. § 11-4-210(a) (state minimum wage)
- Ark. Code Ann. § 5-55-601(b) (petition fraud)
Cases:
- Couch v. Rutledge, CV-18-432 (Ark. 2018) (intervening Supreme Court decision)
- Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (clearly contrary to law)
- Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
- Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
- Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950) (popular name as legislative device)
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (ballot-title brevity)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal consistency of measure and title)
Source
Original opinion text
The full text of the opinion, including the AG's statement of authority under Ark. Code Ann. § 7-9-107, the certified popular name and ballot title, the certification "in light of the recent Arkansas Supreme Court ruling in Couch v. Rutledge, CV-18-432," and the canvasser-and-signer instructions required by Ark. Code Ann. § 7-9-108, is preserved in the linked landing page above. The substantive change to Ark. Code Ann. § 11-4-210(a) reproduced in the enclosed measure text adds a new paragraph (3)(A) raising the minimum wage to $9.25/hour starting Jan 1, 2019, $10.00/hour starting Jan 1, 2020, and $11.00/hour starting Jan 1, 2021.
Opinion No. 2018-043A
May 23, 2018
David A. Couch, Esq.
1501 North University, Suite 228
Little Rock, AR 72207
Dear Mr. Couch:
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 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 a decision to certify or reject.
Section 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. 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. In this way, voters will have a fair understanding of the issues presented by reference to the ballot title alone.
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 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 initiated act:
Popular Name
An Act to Increase the Arkansas Minimum WageBallot Title
An Act to amend the Arkansas Code concerning the State minimum wage; the Act would raise the current State minimum wage from eight dollars and fifty cents ($8.50) per hour to nine dollars and twenty-five cents ($9.25) per hour on January 1, 2019, to ten dollars ($10.00) per hour on January 1, 2020, and to eleven dollars ($11.00) per hour on January 1, 2021.
RESPONSE
Your proposed popular name and ballot title are certified as submitted in light of the recent Arkansas Supreme Court ruling in Couch v. Rutledge, CV-18-432. A cautionary note is warranted, however, due to the significance of the subject matter undertaken and the far-reaching nature of your proposal. Experience has shown there is a correlation between the potential significant effect of initiated measures and their susceptibility to a successful ballot title challenge.
Pursuant to Ark. Code Ann. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and of the associated penalties for violations. Enclosed herewith are instructions that should be incorporated in your petition prior to circulation.
Sincerely,
Leslie Rutledge
Attorney General
Enclosure (canvasser-and-signer instructions per Ark. Code Ann. § 7-9-108 and the substantive text amending Ark. Code Ann. § 11-4-210(a)).
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