Why did the Arkansas Attorney General reject the 2018 'Right to Grow Cannabis Amendment' ballot title?

Plain-English summary

In September 2018, sponsor Larry B. Morris submitted a proposed constitutional amendment titled "The Right to Grow Cannabis Amendment" and asked Attorney General Leslie Rutledge to certify its popular name and ballot title under Ark. Code Ann. § 7-9-107. Section 3 of the proposed amendment would have made it "an Arkansas Constitutional right that any Adult person may cultivate and possess any species of the cannabis plant, on his or her land, and personal property, as to be used for food, shelter, clothing or any purpose in which he or she finds beneficial to his or her own personal pursuit of happiness that does not affect the civil liberties and rights of others." The amendment would have repealed conflicting state laws prohibiting cannabis cultivation, possession, and personal use; preserved medical-marijuana rights under the 2016 Amendment; and disclaimed any right to drive while under the influence or to override employer policies or property-owner restrictions.

The AG rejected the entire submission for three reasons.

First, the popular name "Right to Grow Cannabis Amendment" was misleading because the proposal did not just cover growing; it also established a constitutional right to possess cannabis and to use it for a wide range of purposes. Calling it a "Right to Grow" amendment understated what the amendment actually did. The popular-name standard requires fair representation without partisan coloring or misleading tendencies, and a name that hides part of the legal effect fails that test.

Second, the ballot title was wholly inadequate to summarize the substantive changes the amendment would make to existing state law. Section 7-9-107 requires the title to fairly inform voters of the contents of the proposal so they can make a reasoned decision in the voting booth.

Third, and most importantly, the scope and import of the proposed "Arkansas Constitutional right" were ambiguous. The text protected cultivation and possession "for food, shelter, clothing or any purpose in which he or she finds beneficial to his or her own personal pursuit of happiness." That phrasing left voters and the AG unable to tell what specific conduct would and would not be protected: only personal-use cultivation? commercial cultivation? cultivation for resale? Ambiguity about the actual reach of the right meant no ballot title could honestly summarize it. Under Roberts v. Priest, internal inconsistencies and ambiguity in the underlying text defeat any attempt to draft a sufficient 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 title would be misleading. The Arkansas Supreme Court has held that a popular name and ballot title must be considered together, both must fairly represent the issue, and both must be free of partisan coloring and misleading tendencies.

A popular name that captures only one aspect of a multi-faceted proposal (here, "growing" but not "possessing" or "using for any beneficial purpose") falls on the misleading side of the line. Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), is the leading authority for the rule that ambiguity in a measure's text precludes any sufficient ballot title.

Common questions

What's wrong with calling it a "Right to Grow" amendment?
The amendment did not just protect growing. It also protected possession and use for an open-ended set of purposes, including food, shelter, clothing, and "any purpose in which [the user] finds beneficial to his or her own personal pursuit of happiness." A name that names only the growing element misleads voters about the actual scope.

Why is "for any purpose beneficial to personal pursuit of happiness" too vague?
Because it could mean almost anything. Personal recreational use? Sale to neighbors? Commercial cultivation? Industrial use? The text gave no anchor. The AG could not write a ballot title that honestly told voters what conduct the amendment would protect, because the amendment itself did not say.

Did the AG reach the merits of cannabis legalization?
No. The opinion repeats that the AG does not consider the merits of a proposed measure. The rejection rested on drafting and text-clarity problems.

Could the sponsor fix it?
A redrafted measure that defined "beneficial purpose" or otherwise narrowed the scope of the constitutional right, paired with a popular name that captured the amendment's full reach (cultivate plus possess plus use), could be resubmitted under § 7-9-107.

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)
• Arkansas Medical Marijuana Amendment of 2016 (referenced in proposal as a carve-out)

Source

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

Original opinion text

Opinion No. 2018-107
September 19, 2018
Larry B. Morris, Sponsor

Dear Mr. Morris:

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 constitutional amendment.

The decision to certify or reject is in no way a reflection of my view of the merits of the 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 of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name: The Right to Grow Cannabis Amendment

Ballot Title: An Amendment to the Arkansas Constitution establishing that the right of the people, to grow and possess any species of the cannabis plant on his or her own property shall not be an offense under Arkansas Law and it shall be a right of the people that shall not be infringed; Recognizing that the cultivation, possession, production, and sale of the cannabis plant for any purpose is prohibited under federal law; All state laws, in full or in part that prohibit the cultivation, possession, and personal use of the cannabis plant by adults shall be repealed to the extent that such laws conflict with this amendment. This amendment does not limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity in regards to medical marijuana pursuant to the "Arkansas Medical Marijuana Amendment of 2016." This Amendment does not permit any person to operate a motorized vehicle, watercraft, or aircraft while under the influence of marijuana. This amendment does not affect the ability of employers to have policies restricting the use of cannabis by employees, nor affect the ability of property owners to prohibit the cultivation and use of cannabis on his or her own 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 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 and ballot title are wholly inadequate to fairly and adequately summarize the substance of your proposed constitutional amendment. But more importantly, in my view, the text of the proposal is 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

Section 3 of your proposed amendment to the Arkansas Constitution establishes "an Arkansas Constitutional right" to "cultivate and possess" cannabis:

"Notwithstanding any other provision of law, It [sic] shall be an Arkansas Constitutional right that any Adult person may cultivate and possess any species of the cannabis plant, on his or her land, and personal property, as to be used for [sic] food, shelter, clothing or any purpose in which [sic] he or she finds beneficial to his or her own personal pursuit of happiness that does not affect the civil liberties and rights of others, this [sic] state right of the people shall not be infringed, nor be a basis for seizure or forfeiture of assets under Arkansas law."

Given that the proposed measure would establish a constitutional right to "cultivate and possess" (emphasis added) cannabis, seemingly for a range of purposes, it is misleading to call the measure a "Right to Grow Cannabis Amendment."

Of greater significance, however, the scope and import of this "Arkansas Constitutional right" are ambiguous on the face of the text. The amendment lists "food, shelter, clothing" and "any purpose in which he or she finds beneficial to his or her own personal pursuit of happiness," subject only to a carve-out for conduct that "affect[s] the civil liberties and rights of others." The amendment provides no anchor for what conduct falls inside or outside that "personal pursuit of happiness" framing. Voters reading any ballot title summarizing this language would have no fair way to know what activity the amendment would protect.

Under the Arkansas Supreme Court's standard, a ballot title cannot be approved if the underlying measure's text contributes to confusion. Where the text itself is ambiguous, no summary is honest. This is such a case.

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 Right to Grow Cannabis Amendment" (popular name, ballot title, and proposed amendment) is preserved in the official record as submitted; see the linked landing page for the source filing.