Why did the Arkansas AG reject Robert Reed's 2018 'Arkansas Hemp and Cannabis Amendment' ballot title?

Plain-English summary

Robert L. Reed re-submitted a proposed constitutional amendment to legalize cannabis (medical and recreational) and hemp in Arkansas. The popular name was "The Arkansas Hemp and Cannabis Amendment." The text was identical to his prior submission (rejected in Op. Att'y Gen. 2018-051), except that Reed had added a final sentence to the ballot title: "Upon approval by the voters of the State Of Arkansas this amendment will repeal and replace Amendment 98 commonly known as the 'Arkansas Medical Marijuana Amendment of 2016.'"

AG Leslie Rutledge rejected the submission again. Her core problem with the title was that the new "repeal and replace" sentence was a legal conclusion, not a summary of the measure's text. The measure itself did not state that it repealed and replaced Amendment 98, and it was not clear from the text how the new amendment would alter the existing AMMA. So the ballot title gave voters a label for the change without giving them the substantive picture of the change.

The AG cited Kurrus v. Priest for the proposition that voters cannot be expected to be experts in legal interpretation in order to read a ballot title, and Dust v. Riviere for the rule that a ballot title's adequacy 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."

The AG also reminded the sponsor that her office treats each submission as discrete, and that on each successive review she will identify additional ambiguities, even if those ambiguities existed in earlier submissions and were not previously called out.

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 was different about this submission compared to the prior one?
A: Only the ballot title's last sentence about repealing and replacing Amendment 98. The text of the measure was identical to the prior version.

Q: Why didn't adding the "repeal and replace" sentence fix the problem?
A: Because (1) the measure itself did not contain that statement, so the title was characterizing the legal effect rather than summarizing the measure's text, and (2) the title did not explain to voters what would change between the existing AMMA and the proposed amendment.

Q: Why does that matter?
A: Voters approving an amendment that repeals an existing constitutional provision need to know what they are giving up and what they are getting. Without that comparison, the choice is opaque.

Q: How does this differ from the contemporaneous Hall submission (Op. 2018-076)?
A: The Hall submission failed for partisan-coloring problems ("improve", "simplified") and for an enacting-clause defect, in addition to inadequate AMMA-comparison disclosure. The Reed submission failed primarily on the AMMA-comparison point.

Q: What's the difference between hemp and marijuana under the proposed measure?
A: Industrial hemp would be cannabis with 0.3% or less Delta-9-THC by dry weight. Marijuana would be cannabis above that threshold. Both would be regulated, with hemp legal for cultivation/sale/use and marijuana available for medical use (with written physician recommendation) and recreational use under a $30/year license allowing up to 36 plants.

Q: What does "successive submissions" mean for a sponsor?
A: Sponsors can re-submit. But each review is fresh, and the AG can flag new defects on later reviews even if they were present in earlier versions. The takeaway: just patching the issues called out in the prior opinion is not enough.

Q: Did this measure ever make it to the ballot?
A: No. After repeated rejections in 2018, this particular submission did not advance to certification.

Background and statutory framework

Ark. Code Ann. § 7-9-107 governs popular-name and ballot-title review. Where the ballot title fails to explain the measure's effect on existing law, particularly when the proposal repeals or substantially amends a current constitutional provision, the Court has consistently held the title insufficient. Dust v. Riviere and Kurrus v. Priest are foundational on the duty to inform voters of the contents and changes worked by the proposal.

Amendment 98 (the Arkansas Medical Marijuana Amendment of 2016) created the existing medical-marijuana framework, including the Department of Health's role in adding qualifying conditions. The Reed proposal would have created a parallel framework for both medical and recreational use without spelling out, in the measure or the ballot title, how the new framework relates to and supplants the existing one.

Citations and references

Statutes and constitutional provisions:

• Ark. Code Ann. § 7-9-107 (AG ballot-title review)
• Ark. Const. amend. 98 (Arkansas Medical Marijuana Amendment of 2016)
• Ark. Const. amend. 29, §§ 2(11) and 3 (medical use protection under existing AMMA)

Cases:

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)

Prior AG opinions referenced:

• Op. Att'y Gen. 2018-051 (the immediately prior rejection of this measure)

Source

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

Original opinion text

Opinion No. 2018-056
May 23, 2018

Robert L. Reed
295 Elan Trail
Dennard, AR 72629

Dear Mr. Reed:

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 I 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. 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.

My office treats each proposed measure, and any successive proposal from the same sponsor, as a discrete submission that must be evaluated on its own terms according to the standards established for popular names and ballot titles by the Arkansas Supreme Court. Because the Court's scrutiny of voter-initiated acts and amendments is exacting, my office places great importance on the rigorous analysis of every submission. Each response to a request for certification will, if appropriate, identify ambiguities that militate against certifying the proposed ballot title. However, the ambiguities discussed in a given response will not necessarily be all of the ambiguities contained in the proposal. If additional ambiguities become apparent with successive submissions, I consider it my duty under section 7-9-107 to identify those ambiguities regardless of whether previous responses have included them.

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 Hemp and Cannabis Amendment

Ballot Title
An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of the cannabis plant and cannabis-related products produced therefrom for recreational and medical purposes may not be prohibited under state law but shall be regulated under state law; recognizing that such activities remain unlawful under federal law; providing for the release from incarceration, probation, or parole of all persons whose only conviction(s) were of state laws pertaining to the cultivation, production, distribution, sale, and possession of marijuana or possession of marijuana paraphernalia, and the expungement of records relating to such conviction(s); dividing cannabis into industrial hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); authorizing both medical and recreational use of marijuana; providing that anyone 21 years of age or older may obtain a marijuana license permitting the person to cultivate, produce, distribute, and sell marijuana and products produced therefrom; providing that a licensed person may cultivate up to 36 cannabis plants in a location not subject to public view without optical aid; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% excise tax; providing that the state shall not impose any tax on the sale of medical marijuana to patients; permitting medical use of marijuana by a person of any age whose physician has recommended such use in writing; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under state law; and providing that the amendment is not intended to (a) require employers to permit activities relating to marijuana in the workplace, (b) permit driving under the influence of marijuana, (c) permit the transfer of recreational marijuana to anyone under 21. Upon approval by the voters of the State Of [sic] Arkansas this amendment will repeal and replace Amendment 98 commonly known as the "Arkansas Medical Marijuana Amendment of 2016".

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal submitted. Having analyzed your proposed constitutional amendment, as well as your proposed popular name and ballot title in line with guidelines established by the Arkansas Supreme Court, I conclude that the entire submission must be rejected.

DISCUSSION

A primary, fundamental problem with your proposed measure and ballot title relates back to what I pointed out in my most previous opinion to you regarding changes in current law under this proposal. As I explained in that opinion, the ballot title must fairly and accurately summarize the proposed measure's text, and it must sufficiently inform voters about the changes in current law they are being asked to approve. I will not restate the Court's guidelines for determining the sufficiency of a measure's popular name and ballot title, but instead refer you to the previous opinion for the governing standards. I must again particularly draw your attention to the requirements as they pertain to informing voters of the proposed changes in existing law.

The text of your current proposed measure is identical to the text of your most previous submission. And with one exception, the ballot title you have proposed is also identical to the previous ballot title for this measure. The difference is the final clause, which has been added to the ballot title since the previous submission. It states:

Upon approval by the voters of the State Of [sic] Arkansas this amendment will repeal and replace Amendment 98 commonly known as the "Arkansas Medical Marijuana Amendment of 2016".

This statement amounts to a legal determination or conclusion regarding the proposed amendment's effects on current law. It is not a summary of the contents of the measure itself. The measure does not state that it repeals and replaces Amendment 98, the "Arkansas Medical Marijuana Amendment of 2016" ("AMMA"). Nor is it clear from the text precisely how the measure would alter or differ from the AMMA.

Even if the measure itself included this statement about repealing and replacing Amendment 98, simply restating such in a ballot title will not satisfy the rigorous standards set by the Court. Your proposed amendment plainly relates, in part, to "medical marijuana", a term defined under subsection 3(f) of the measure. And the "medical use" of marijuana is protected under the AMMA. In order for voters to make an informed decision about your measure, they will need information about the current state of the law on medical marijuana so that they can fully weigh the effect of repealing or otherwise changing that law. Your proposal's substantive provisions in this regard must also be clear and unambiguous so that they can be sufficiently summarized for the voters in the ballot title. Without information in the ballot title about the AMMA and the differences between that law and the amendment you are proposing, I believe the Arkansas Supreme Court would have serious concerns about voters' ability to fully understand and appreciate the issues presented. As the Court has stated:

The 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.

When tested by the established standards governing the Court's review of ballot titles, your proposed title must be deemed insufficient. As I have previously noted, the precise manner in which you acknowledge your proposal's effects on existing law is a matter for you to determine and submit to this office in draft form. But that acknowledgment must reasonably follow from the actual text of the measure.

CONCLUSION

My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of initiated measures. And I have no constitutional role in the shaping or drafting of such measures. I cannot advise individual sponsors, who must vet their proposed measures, popular names, and ballot titles to ensure they meet the criteria established by section 7-9-107 and the Arkansas Supreme Court. 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 ballot title, popular name, and proposed measure. In considering whether to undertake another submission for this proposed measure, you should be aware that I may call attention to a proposal's ambiguities on any review, even though they may have been embodied or inherent in an earlier version of the proposal.

Sincerely,

Leslie Rutledge
Attorney General

Enclosure (full text of the proposed Arkansas Hemp and Cannabis Amendment).