Why was the Arkansas Cannabis Amendment ballot title rejected for failing to clearly explain its effect on the existing medical marijuana amendment?

Plain-English summary

Attorney John W. Hall Jr. submitted the proposed Arkansas Cannabis Amendment to the Attorney General for popular-name and ballot-title certification under Ark. Code Ann. section 7-9-107. The proposal would have legalized adult possession, cultivation, and sale of cannabis under state law, transferred regulatory authority from the existing Medical Marijuana Commission to the Alcohol Beverage Control Division, expanded the list of qualifying medical conditions, allowed minors with medical-cannabis cards to be administered cannabis by a school nurse, taxed sales for pre-K and teacher salaries, and released and sealed records of those incarcerated for possession of 16 ounces or less.

Attorney General Leslie Rutledge rejected the entire submission. The central problem was the proposal's relationship to the Arkansas Medical Marijuana Amendment of 2016 (Amendment 98). The proposal would not have repealed Amendment 98, but its effect on the existing medical-use scheme was unclear in the proposal's own text. Voters reading the ballot title would not have been able to understand how patient certification, dispensary licensing, the Medical Marijuana Commission, and ABC's regulatory powers would all fit together. Because the ambiguity sat in the proposal itself, no rewritten ballot title could fix it.

The AG flagged a list of specific issues: a ballot title that mentioned letting MDs, APRNs, and DOs certify medical-cannabis patients without explaining how that compared to Amendment 98's registry-card process; a "medical cannabis patient card" that the measure created but did not define; a provision saying the Medical Marijuana Commission "is to be eliminated" without specifying when or how, while the ballot title described it as "abolish[ed]"; and a structural disconnect between ABC's "commercial sales and production" authority in the title and the measure's reference to ABC controlling "commercial and medical production." The opinion also reiterated past warnings about an enacting clause appearing in a constitutional amendment, and it noted a confusing strikethrough on the term "repealed" in Section 3.

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.

Background and statutory framework

Section 7-9-107 gives the Attorney General three options on a ballot-title submission: certify, substitute and certify, or reject if the title or the nature of the issue is presented in a manner that would mislead voters. The Arkansas Supreme Court's standard, articulated in Bailey v. McCuen and applied in Lange v. Martin, Wilson v. Martin, and Christian Civic Action Committee v. McCuen, requires the title to give voters enough information to make a "reasoned decision in the voting booth," to disclose any "essential fact which would give the voter serious ground for reflection," and to be free of misleading tendency by amplification, omission, or fallacy.

Roberts v. Priest provides the structural rule when the proposal's own internal inconsistencies pollute the ballot title: a ballot title cannot be approved if the underlying measure contributes to confusion. The AG cannot redraft the measure to make it summarizable.

The relevant background law was the Arkansas Medical Marijuana Amendment of 2016, Amendment 98. Section 2(11) of Amendment 98 defines "medical use," section 5 governs the Department of Health's issuance of "registry identification cards" to qualifying patients and designated caregivers, and sections 8 through 13 govern licensing and regulation of dispensaries and cultivation facilities, agent registration and certification, inspections, and prohibitions.

Why the proposal was rejected

The AG's central concern was that the proposed Cannabis Amendment overlapped with Amendment 98 in patient licensing and in the licensing and regulation of cultivators and dispensaries, but the proposal did not clarify how the two regimes would interact. Several specific problems followed.

On patient certification, the ballot title said the amendment would "allow an MD, APRN, or DO to certify a medical cannabis patient" but said nothing about how that compared with Amendment 98's "registry identification cards" issued by the Department of Health. The measure required the Department to issue "medical cannabis patient cards" by rulemaking, but did not define "medical cannabis patient card" or "medical marijuana patient" and did not explain how Amendment 98's registry process would interact with the new card scheme.

On dispensary licensing, the ballot title said dispensaries existing under Amendment 98 could sell to recreational adults too, but it did not summarize the proposal's detailed licensing provisions or explain how Amendment 98's regulatory scheme would carry over.

On the Medical Marijuana Commission, the ballot title said the proposal would "abolish" the Commission, while the proposal's own text said the Commission "is to be eliminated" without specifying a process or time frame. The AG read those as inconsistent and saw the ballot title as overstating what the proposal actually did.

On ABC's authority, the ballot title described regulation of "commercial sales and production," but the proposal's text referred to ABC's power to "reasonably control . . . commercial and medical production and distribution of cannabis." The AG saw a meaningful gap there.

On formality, the AG repeated a previous admonition that an enacting clause should not appear in a proposed constitutional amendment, and pointed out that the strikethrough of the word "repealed" in Section 3's heading was confusing because Amendment 98 had not actually been repealed.

The AG concluded that these threshold deficiencies made a satisfactory ballot title impossible. The opinion noted that the issues identified were "not necessarily all the issues preventing certification."

Common questions

Could the sponsor have fixed the ballot title alone without redrafting the proposal?

No. The AG made clear that the source of the ambiguity was the proposal itself. Section 7-9-107 lets the AG substitute a more suitable ballot title only when the proposal can be summarized faithfully. When the proposal contains internal inconsistencies, the substitute path is foreclosed.

What was the relationship problem with Amendment 98 specifically?

Amendment 98 already governed medical use of marijuana in Arkansas: patient registry, dispensaries and cultivators, the Medical Marijuana Commission, and Department of Health rulemaking. The proposal would have created an overlapping scheme through ABC, with new patient cards, an expanded list of conditions, and a different role for the Commission. The proposal's text did not say which Amendment 98 provisions would survive, which would be replaced, and how the transition would work.

Why did the strikethrough on "repealed" matter?

A strikethrough on a word in legal text typically means the word is being removed from existing law. The proposal's Section 3 heading was "Amend Amendment 98 repealed," with "repealed" struck through. Because Amendment 98 had not been repealed at all, a strikethrough on a word that was never in the existing law was confusing and potentially misleading.

Did the AG decide whether minor schoolchildren should get cannabis at school?

No. The merits of that policy choice were not addressed. The AG's review under section 7-9-107 is whether voters could understand the proposal from the ballot title, not whether the proposal is good policy.

What happens to a sponsor whose ballot title is rejected?

The sponsor can redraft and resubmit. The AG's rejection does not prevent further attempts; it tells the sponsor what is wrong and what needs to be fixed. Repeated rejections of substantially similar submissions do happen, as Op. Att'y Gen. 2018-100 illustrated for a different recreational-marijuana proposal that same month.

Citations

Ark. Code Ann. sections 7-5-309, 7-9-107, 7-9-107(b), 7-9-107(c); Ark. Const. amend. 98, sections 2(11), 5; Op. Att'y Gen. 2017-126; Op. Att'y Gen. 2018-076; Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1948); Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950); Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958); May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004); Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160; Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994); Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154; Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996); Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990); Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000).

Source

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

Original opinion text

Opinion No. 2018-099
August 23, 2018

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

John W. Hall Jr., Esq.
1202 Main Street, Suite 210
Little Rock, AR 72202

Dear Mr. Hall:

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.

It follows from my duty to reject misleading submissions that any ballot title submitted for review should represent the sponsor's attempt to summarize his proposed amendment or act in a non-misleading fashion. At the time they are submitted to my office under section 7-9-107, the popular name and ballot title for proposed constitutional amendments and acts "should be complete enough to convey an intelligible idea of the scope and import of the proposal." And while I am authorized to substitute and certify a ballot title that is more suitable (in terms of affording voters a fair understanding of the issues presented), section 7-9-107 does not contemplate that I generate a ballot title when the ballot title submitted is wholly deficient. Nor does the statute require that I modify the proposed measure itself in order to then summarize the measure's text in a suitable ballot title. Crafting the measure's text and accurately summarizing that text in a ballot title are the sponsor's responsibility prior to submission.

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

Arkansas Cannabis Amendment

Ballot Title

A constitutional amendment:

To make possession and growth of cannabis (marijuana) for personal use by adults legal under state and local law, acknowledging cannabis use, possession and distribution for any purpose remain illegal under federal law.

To amend Amendment 98, to allow medical cannabis patients to purchase at any dispensary, regardless if that dispensary was created under Amendment 98 or the Arkansas Cannabis Amendment, allow an MD, APRN, or DO to certify a medical cannabis patient and increase the number of qualifying conditions.

A minor in school who has a medical cannabis card can be administered their medication by the school nurse, as with any other pharmaceutical medication.

To allow the sale of cannabis (marijuana) to adults (persons 21 years of age or older) for personal use; to allow the personal and commercial cultivation, possession, and use of cannabis by adults; to permit the taxation of revenue derived from commercial cannabis facilities; to permit the promulgation of administrative rules and regulations for commercial sales and production and personal possession and production through the Alcohol Beverage Control Division of the Department of Finance and Administration [sic]

To allow adults possession of up to four ounces of cannabis in one's own home or on their person for personal use as a state constitutional right as long as minors (those under 21) do not possess or have access to it. To allow adults home cultivation of up to 6 mature plants and 6 seedlings.

To abolish the medical marijuana commission and replace the authority of licensing with the Alcohol beverage control [sic]. To allow medical marijuana dispensaries to also sell to adults over 21 for recreational use.

Individuals may petition to initiate a local ordinance to provide for the number of cannabis establishments allowed within a municipality or county or to completely prohibit cannabis establishments within a municipality or county.

To require the Arkansas Alcohol Beverage Control Division to develop and publish rules and regulations for all cannabis businesses and to issue licenses to all cannabis establishments and that the property where the proposed cannabis establishment is to be located is not within an area zoned exclusively for residential use and is not within 1,000 feet (front door to front door, not property lines) of a pre-existing public or private school providing education in pre-kindergarten or any of grades K-12 or a church, temple, synagogue, or other house of worship unless a municipality adopts an ordinance that reduces this distance requirement.

To distribute state sales tax for the sale of cannabis as follows: All state sales tax will go to public pre-k program [sic]. Any surplus will go to public school teacher salaries [sic]

To release those incarcerated in Arkansas prisons or jails, if any, for cannabis charges of possession of 16 ounces or less or possession or cultivation of six or fewer cannabis plants, and to seal their records, and to seal the records of any persons who have served their sentence and been released for charges of possession of 16 ounces or less or possession or cultivation of six or fewer plants.

This amendment shall be broadly construed to accomplish its intent, and, where possible, it is self-executing.

GUIDELINES

The popular name is primarily a useful legislative device. 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. The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.

"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." Accordingly, 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. 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." 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." The Court has also disapproved the use of terms that are "technical and not readily understood by voters." Without a definition of such terms in the ballot title, the title may be deemed insufficient.

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." At the same time, however, a ballot title must be brief and concise; otherwise voters could run afoul of the statutory five-minute limit in voting booths when other voters are waiting in line. 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. Yet the title must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

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. 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." 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.

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. In this case, I must reject the ballot title, popular name, and proposed measure due to certain threshold, fundamental flaws. The ballot title you have submitted fails to give voters a complete understanding of how the proposed constitutional amendment relates to the Arkansas Medical Marijuana Amendment of 2016 ("AMMA"), which deals with matters that overlap your proposal. But the proposal itself, which is a detailed attempt to make the recreational use of marijuana by adults legal under state law, while also changing the AMMA in some respects, is unclear in this regard. Hence, it is impossible to craft a ballot title that will satisfy the standards set by the Arkansas Supreme Court. Absent clarification, I believe the Arkansas Supreme Court would have serious concerns about voters' ability to fully understand and appreciate the issues presented in your proposed amendment. Voters are entitled to know how your proposal would affect the AMMA. This requires the use of clear and precise terms in both the text and ballot title, so that voters do not have to speculate about proposed changes in the law.

DISCUSSION

Your proposed amendment would not repeal the AMMA, but the effect of the proposal on the "medical use" of marijuana under the AMMA is unclear. The AMMA authorizes and regulates the "medical use" of marijuana, which is defined under the AMMA as:

the acquisition, possession, use, delivery, transfer, or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a qualifying patient's medical condition or symptoms associated with the qualifying patient's qualifying medical condition.

The AMMA and your proposed amendment appear to overlap in most of the areas covered by this "medical use" definition, specifically regarding patient licensing and the licensing and regulation of entities that may cultivate and dispense for "medical use." Yet your proposed ballot title contains minimal information about the AMMA, "medical cannabis", and "medical marijuana". And the limited information you do provide does not offer sufficient insight into the proposed amendment's effect on the AMMA.

For example, the ballot title states that the amendment would "allow an MD, APRN, or DO to certify a medical cannabis patient[,]" but it provides no information about the certification process or how it compares with the issuance of "registry identification cards" under the AMMA. The proposed measure itself states that the Department of Health "shall establish rules and regulations to issue medical cannabis patient cards on a recommendation from an MD, APRN, or DO . . . ." But the term "medical cannabis patient card" is not defined; the measure likewise does not define "medical marijuana patient." It is unclear under the proposal whether the AMMA applies to the Health Department's development of these "rules and regulations" concerning patient cards.

There plainly are some significant differences between the proposed amendment and the AMMA in this area of patient licensing, differences that are not reflected in the ballot title you have proposed. But the uncertainty under the proposal itself regarding the effect on the AMMA prevents adequate summation of these important features in a ballot title for the measure.

Relatedly, your proposed ballot title states that the amendment would "abolish the medical marijuana commission and replace the authority of licensing with the Alcohol beverage control [sic] [ABC]." The ballot title also states that the amendment would "permit the promulgation of administrative rules and regulations for commercial sales and production and personal possession and production through the [ABC]." The proposal itself addresses "state license[s]" in detail, including the applicable procedures, qualifications, restrictions, and ABC's regulatory authority in connection therewith. But the ballot title does not sufficiently summarize the measure's provisions concerning licensing and regulation, whether for recreational or medical use.

The AMMA likewise comprehensively addresses the licensing and regulation of dispensaries and cultivation facilities. But the ballot title you have submitted only states that the proposed amendment would "allow medical cannabis patients to purchase at any dispensary, regardless if that dispensary was created under [the AMMA]," and that it would "allow medical marijuana dispensaries to also sell to adults over 21 for recreational use." The ballot title is otherwise silent with respect to the differences between the proposed amendment and the AMMA regarding dispensaries and cultivation facilities, or the extent to which the proposal would alter the AMMA. It is therefore impossible to determine from the ballot title how your proposal would affect the AMMA and ABC's powers thereunder. Without this information, voters will not be able to make an informed decision about what they are being asked to add to the Arkansas Constitution.

I have previously explained to you the importance of 1) accurately summarizing the proposed measure's text, and 2) sufficiently informing the voters about the changes that they are being asked to approve. I therefore will not further elaborate on these requirements. I will simply note that the ballot title you have proposed does neither. It consequently falls far short of the Court's requirements and is fatally misleading.

CONCLUSION

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 is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate. Your submission falls short of the minimum criteria under section 7-9-107. My office attempts in the usual course to identify problems in the text of a proposed measure that prevent certification of a satisfactory ballot title. However, I am unable in light of the above threshold deficiencies to proceed with any further review of this submission. These deficiencies are not necessarily all the issues preventing certification of a popular name and ballot title for your proposed measure. But they are sufficiently serious that I must reject your entire ballot title, popular name, and proposed measure.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure

(Full text of the proposed Arkansas Cannabis Amendment, Sections 1 through 18, omitted here for length. See the linked landing page above for the complete enclosure.)