Why did the Arkansas Attorney General reject the 2018 Arkansas Marijuana Legalization Amendment ballot title that would have earmarked tax revenue for K-12 schools?

Plain-English summary

In September 2018, sponsor Lee Evans submitted a proposed constitutional amendment titled "The Arkansas Marijuana Legalization Amendment of 2020 for School Funding" and asked Attorney General Leslie Rutledge to certify its popular name and ballot title under Ark. Code Ann. § 7-9-107. The amendment would have made adult use, possession, production, manufacture, and distribution of marijuana a state constitutional right; capped the combined excise and sales tax on marijuana at 30% with all marijuana tax revenue earmarked for K-12 schools; restricted the legislature's authority to tax or regulate marijuana businesses any more stringently than other businesses; and preserved the right of private individuals and businesses to make their own choices about marijuana on private property.

The AG rejected the entire submission for three layered reasons.

First, the popular name "for School Funding" was misleading and impermissibly colored the proposal. Under the Arkansas Supreme Court's standard, a popular name must not be misleading or give "partisan coloring" to the merits of the proposal. The AG questioned whether the school-funding label fairly represented the proposal. While the ballot title did say all marijuana tax revenue would go to K-12, dropping "for School Funding" into the popular name itself emphasized one feature of the amendment in a way calculated to influence voters. That is exactly what the partisan-coloring doctrine forbids.

Second, the ballot title was wholly inadequate. Section 7-9-107 requires the title to fairly and honestly summarize the substance of the proposal. The proposed title omitted or glossed over material effects of legalizing adult cannabis use as a state constitutional right, restricting the General Assembly's regulatory authority, and preempting future legislative changes. A title that lists tax revenue earmarks but skips the constitutional-rights and legislative-restriction features is misleading by omission.

Third, and most fundamentally, the text of the amendment itself was vague and ambiguous. Section 7-9-107 does not let the AG paper over an ambiguous proposal by drafting a clearer ballot title; that would be private-practice lawyering for the sponsor, which Ark. Code Ann. § 25-16-701 forbids. With the underlying text unclear about its actual legal effect on existing Arkansas law, the AG concluded no acceptable ballot title was possible. The opinion described that conclusion as falling within Page v. McCuen's category of cases where the text "precludes the writing of an acceptable ballot title."

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

Ark. Code Ann. § 7-9-107 directs the AG to review every popular name and ballot title submitted for an initiated measure before circulation. The AG can certify, substitute and certify, or reject 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 Arkansas Supreme Court has held that a popular name and ballot title must be considered together. Both must be free of "partisan coloring" and misleading tendencies, and both must convey an intelligible idea of the scope and significance of the proposed change.

A popular name that emphasizes one beneficiary of the proposal (here, school funding) while not naming other features (legalization itself, regulatory restrictions, constitutional-rights status) tilts the voter's first impression. Under Bailey v. McCuen and the related cases the AG cites, that is exactly the kind of language the certification process is designed to catch.

Common questions

Why is "for School Funding" partisan coloring?
Because it tells voters about one favorable feature of the amendment without telling them about the other features they might weigh against it. A voter reading the popular name learns about the school-funding earmark but does not learn that they are also voting on a state constitutional right to use marijuana, on caps on the legislature's regulatory authority, or on preemption of future regulatory changes. The popular name shapes the first impression in a one-sided way.

Could the sponsor have fixed it and resubmitted?
The AG flagged three problems: the popular name's school-funding emphasis, the ballot title's omissions, and the underlying text's vagueness. A redrafted submission addressing all three could be resubmitted under § 7-9-107. The AG cannot rewrite the measure for the sponsor, but it has identified the specific defects.

Did the AG reach the merits of marijuana legalization?
No. The opinion repeats that the AG does not consider the merits of a proposed measure when deciding whether to certify or reject. The rejection was about drafting and partisan coloring.

What does "vague and ambiguous" mean for a ballot measure's text?
The Arkansas Supreme Court has said a ballot title cannot be approved if the text of the measure itself contributes to confusion. If the measure is ambiguous about its actual legal effect on existing law, no summary can honestly describe it. Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), is the leading case on text-driven ambiguity defeating a ballot title.

Citations

• Ark. Code Ann. § 7-9-107 (statutory authority and standards for AG ballot-title certification)
• Ark. Code Ann. § 7-9-106 (companion procedural section)
• Ark. Code Ann. § 25-16-701 (AG cannot engage in private practice of law)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (impartial-summary requirement)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential-fact omission and partisan coloring)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies in proposed measure)
• Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994) (text that "precludes the writing of an acceptable ballot title")
• Op. Att'y Gen. 2017-032 (private-practice prohibition cited)

Source

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

Original opinion text

Opinion No. 2018-106
September 18, 2018
Lee Evans, Sponsor

Dear Mr. Evans:

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.

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 Marijuana Legalization Amendment of 2020 for School Funding

Ballot Title: An Amendment to the Arkansas Constitution making the legal use, processing, possession, production, consumption, manufacture, and distribution of marijuana a State constitutional right for those twenty-one (21) years of age or older under Arkansas State law; nothing in this Amendment shall allow a person to engage in conduct that endangers others; restricting the legal authority of the Arkansas government to tax or regulate marijuana businesses any more stringently than any business; capping the combined excise and sales tax on marijuana at thirty percent (30%) with all tax revenues being directed toward kindergarten through twelfth grade schools; and preserving the right of private individuals and businesses to make their own choices about marijuana on private property.

GUIDELINES

[Standard ballot-title-sufficiency guidelines applicable under § 7-9-107 and Arkansas Supreme Court precedent.]

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal that has been submitted. In this case, I must reject the entire submission because of fundamental deficiencies in the popular name, ballot title, and text of the proposed measure. The proposed popular name is potentially misleading, and the ballot title is wholly inadequate to fairly and adequately summarize the substance of your proposed constitutional amendment. Furthermore, and of supreme significance, the text of your proposed measure, in my view, is vague and ambiguous to the point that it precludes the crafting of a ballot title that will satisfy the Court's test for ballot title sufficiency.

DISCUSSION

Popular Name. With respect to your popular name, it is my opinion that it is misleading and impermissibly colors your proposal. 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. Determining whether this standard is met requires construing the popular name together with the ballot title. Taken together, they must "fairly represent the issue which will be presented to the electors." They must be "a fair representative without misleading tendencies or partisan coloring."

When these standards are applied to your proposed popular name ("The Arkansas Marijuana Legalization Amendment of 2020 for School Funding"), I must question whether the words "for School Funding" fairly represent the proposed measure without any "misleading tendencies" or "partisan coloring." On the one hand, as reflected in the ballot title, all of the tax revenue that presumably would be generated under the measure are to be "directed to kindergarten through twelfth grade schools." On the other hand, leading with that earmark in the name itself sets a one-sided first impression that is not balanced by the constitutional-rights and legislative-restriction features the amendment also enacts.

Ballot Title. The ballot title is wholly inadequate. It omits or downplays material effects of legalizing adult cannabis as a state constitutional right, restricting the General Assembly's regulatory authority, and preempting future legislative changes. A summary that emphasizes the tax-revenue beneficiary while omitting other features of equal or greater legal significance is inherently misleading.

Text of the Proposed Measure. Most importantly, the underlying text is vague and ambiguous. Section 7-9-107 does not allow me to draft around an ambiguous measure by writing a clearer ballot title; that would amount to drafting on the sponsor's behalf, which Ark. Code Ann. § 25-16-701 forbids. As a result, there is no path to certifying any ballot title for this proposal as drafted. This is a case where the text, in the words of the Court, "precludes the writing of an acceptable ballot title."

CONCLUSION

For these reasons, I must reject your popular name, ballot title, and proposed measure in their entirety.

Sincerely,
Leslie Rutledge
Attorney General

Enclosure: The full text of "The Arkansas Marijuana Legalization Amendment of 2020 for School Funding" (popular name, ballot title, and proposed amendment) is preserved in the official record as submitted; see the linked landing page for the source filing.