Why did the Arkansas AG certify David Couch's 2018 Arkansas Citizens' Redistricting Commission Amendment ballot title?

Plain-English summary

David Couch's coalition submitted a proposed constitutional amendment to overhaul Arkansas's redistricting machinery. Under existing law, Article 8 of the Arkansas Constitution gave a "Board of Apportionment" (composed of the Governor, Secretary of State, and Attorney General) the power to draw state legislative districts; the General Assembly drew congressional districts under Ark. Code Ann. §§ 7-2-101 to -105. The proposed amendment would repeal both schemes and establish a seven-member "Citizens' Redistricting Commission" to handle decennial redistricting of both congressional and legislative districts.

Key features of the proposed commission, summarized in the certified ballot title:

• Seven members, four appointed by majority and minority leaders of the House and Senate, three additional members chosen by the first four (or by blind selection from a randomized pool if deadlocked).
• Strict eligibility rules: each member must be a registered voter in Arkansas for five years, must have voted in the last two statewide general elections, and must not have served (or have an immediate family member who served) in elected or appointed office, as a federal/state/local lobbyist, as a government employee, or in a campaign or party role within the prior five years.
• No more than four members affiliated with any political party.
• Specific district-drawing criteria in priority order: equal population (no more than 1% legislative variance, no more than 5% in any case); compliance with the U.S. Constitution and the federal Voting Rights Act; contiguous territory; respect for cities, counties, neighborhoods, and communities of interest; reasonable compactness.
• Express prohibitions on drawing districts to favor or disfavor a party, incumbent, or other person/group.
• Public hearings in each congressional district, transparent meetings, and a public website.
• Original jurisdiction in the Arkansas Supreme Court to compel the commission to perform its duties, with sovereign immunity waiver.

AG Rutledge certified the popular name and ballot title as submitted, with a cautionary note about complexity and challenge risk. The opinion includes the standard canvasser-and-signer instructions required by Ark. Code Ann. § 7-9-108.

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 the existing Board of Apportionment, and why did the proposal target it?
A: Under Article 8 of the Arkansas Constitution, the Governor, Secretary of State, and Attorney General together formed the Board of Apportionment, which drew state legislative districts. Critics viewed that arrangement as politically captured because all three positions are partisan elected officials. Independent commissions are an increasingly common reform proposal in U.S. states.

Q: How would commission members have been chosen?
A: Four by the legislative leaders (majority and minority of each chamber), with the four then choosing three additional members. If they could not agree, each commissioner would nominate one candidate, those names would be placed in a randomized pool, and the Secretary of State and the first two appointed commissioners would each blindly draw one name.

Q: What kept the commission from being political?
A: Five-year lookback rules excluding former officeholders, lobbyists, government employees, and party officials. No more than four members of the same party. The three "additional" members chosen by the first four had to be unaffiliated with any party for at least five years.

Q: What were the priority criteria for drawing districts?
A: Population equality first (with the variance limits described), then VRA and federal-constitution compliance, then contiguous territory, then respect for political and community boundaries, then reasonable compactness. The amendment also banned partisan or incumbent-protective gerrymanders and language-minority dilution.

Q: What was the AG's concern about successful challenge?
A: Long, complex initiated measures invite ballot-title challenges. Even when the AG certifies, opponents can sue to keep the measure off the ballot, and ambiguities anywhere in the text can support a challenge. The AG flagged that risk for the sponsor.

Q: Did this measure pass?
A: No. The measure faced ballot-access challenges and ultimately did not appear on the 2018 general election ballot.

Q: How does this compare to other AG opinions on the same date (May 23, 2018)?
A: The AG issued a cluster of certifications and rejections that day: certified the minimum-wage initiated act (Op. 2018-043A), certified two casino-gaming measures (Ops. 2018-068, 2018-070), rejected one cannabis amendment (Op. 2018-056). The redistricting commission certification fits with the pattern of certifying measures with neutral, rule-summary ballot titles even when they are very long.

Background and statutory framework

Arkansas's constitutional initiative process (Amendment 7, codified at Ark. Const. art. 5, § 1) lets voters propose constitutional amendments by petition of 10% of legal voters. AG review under Ark. Code Ann. § 7-9-107 is the gatekeeping step before petition circulation.

The body of Arkansas Supreme Court doctrine on ballot-title sufficiency, summarized in the cited cases, focuses on giving voters a fair, impartial, complete-but-concise summary of the proposal. Long measures with technical content are inherently challenging to summarize.

The proposed amendment built on the model of state redistricting commissions in California, Arizona, and other states, with Arkansas-specific features (the role of the Secretary of State, the supermajority-vote and quorum rules, the Arkansas Supreme Court's mandamus jurisdiction).

Citations and references

Statutes and constitutional provisions:

• Ark. Code Ann. § 7-9-107 (AG ballot-title review)
• Ark. Code Ann. § 7-9-108 (canvasser-and-signer instructions)
• Ark. Code Ann. §§ 7-2-101 to -105 (proposed for repeal)
• Ark. Const. art. 8 (Board of Apportionment, proposed for repeal)
• Pub. L. No. 94-171 (federal census redistricting data)

Cases:

• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)

Source

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

Original opinion text

The full text of the opinion includes (1) the AG's standard description of her role under Ark. Code Ann. § 7-9-107, (2) the certified popular name "The Arkansas Citizens' Redistricting Commission Amendment," (3) the long ballot title summarizing the seven-member commission, eligibility rules, four-plus-three appointment process, district-drawing criteria, public-hearing requirements, and original jurisdiction in the Arkansas Supreme Court, (4) the AG's certification with a cautionary note about complexity, and (5) the canvasser-and-signer instructions required by Ark. Code Ann. § 7-9-108. The certified text is preserved in the linked landing page above.

Opinion No. 2018-057
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, of the popular name and ballot title for a proposed initiated measure.

[Standard discussion of AG's role under section 7-9-107 follows.]

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 Citizens' Redistricting Commission Amendment

Ballot Title
This is an amendment to the Arkansas Constitution that changes the manner for the decennial redistricting of Arkansas Congressional and State legislative districts. The amendment establishes a Citizens' Redistricting Commission (the Commission) consisting of seven members. The amendment repeals Article 8 of the Arkansas Constitution that establishes a Board of Apportionment consisting of the Governor, the Secretary of State and the Attorney General. That Board currently establishes the State legislative districts. The amendment repeals Arkansas Code Sections 7-2-101-105 and removes from the General Assembly the authority to establish the districts for the United States Congress. The amendment provides that one of the members shall be appointed by the Majority Leader of the House of Representatives, one by the Minority Leader of the House of Representatives, one by the Majority Leader of the Senate, and one by the Minority Leader of the Senate. These four members of the Commission shall choose three additional members of the Commission by majority vote or if the Commission is deadlocked by blind selection from a pool of individuals nominated by each commissioner. No more than four of the members of the Commission shall have any political party affiliation as determined by statewide voter registration and the three members elected by the commissioners shall not be affiliated with any political party as determined by statewide voter registration. Each member of the Commission shall be a registered voter in Arkansas for the five years preceding their appointment and have voted in each of the last two statewide general elections. [Detailed eligibility rules, appointment timing, quorum, term, and procedural provisions follow, along with criteria for drawing districts (population, contiguity, respect for political subdivisions and communities of interest, reasonable compactness), prohibitions on partisan or incumbent-protective gerrymanders, public-hearing requirements, and original jurisdiction in the Arkansas Supreme Court to compel the commission to perform its duties.]

RESPONSE

Your proposed popular name and ballot title are certified as submitted. I believe a cautionary note is warranted, however, in light of the significance of the subject matter undertaken (apportionment and legislative and congressional redistricting) and the complexity and far-reaching effects of this proposal. You should be aware that experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot title challenge. Any ambiguity in the text of a measure could lead to a successful 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 of the Citizens' Redistricting Commission Amendment).