Why did the Arkansas Attorney General reject the 2018 'Arkansas Marijuana Amendment 2020' ballot title that proposed adult-use legalization with a regulatory licensing scheme?

Plain-English summary

In September 2018, sponsor Timothy S. Kelley submitted a proposed constitutional amendment titled "The Arkansas Marijuana Amendment 2020" 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 legalized adult use of marijuana in Arkansas (including purchase, consumption, possession, and cultivation of up to six plants and limited amounts), licensed cultivation facilities, product manufacturing facilities, testing facilities, and retail stores, allowed local governments to regulate or prohibit such facilities, preserved medical-marijuana rights under the 2016 Amendment, and required sales of recreational marijuana to be subject to specified taxation.

The AG rejected the entire submission. The ballot title was wholly inadequate. It was full of generic phrases ("the regulation of marijuana," "the licensing of cultivation facilities," "permitting local governments to regulate or prohibit") that read like topic labels rather than substantive descriptions. A voter encountering the title would learn very little about what the amendment actually would change in Arkansas law: how the licensing system would work, who would issue licenses, what local-government opt-outs would mean, what the practical legal status of marijuana would be after enactment, or what conduct would and would not be permitted. The AG read this as inherently misleading, because it gave voters the impression of a comprehensive scheme without telling them what the scheme actually does.

Beyond the ballot title's failures, the AG concluded the underlying proposal was itself fundamentally ambiguous. The opinion described it as "a convoluted attempt to make the use of marijuana by adults legal under state law" whose actual workings (especially the regulatory licensing structure) could not be honestly summarized. Where the underlying text is ambiguous, no ballot title can compensate; under Roberts v. Priest, the AG must reject. Section 7-9-107 does not let the AG redraft the proposal to make it summarizable, and Ark. Code Ann. § 25-16-701 forbids the AG from engaging in private-practice lawyering for the sponsor.

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 ballot title must include an impartial summary that adequately informs voters of the contents of a proposed amendment. A title that lists topic labels without conveying their substantive effect (Becker v. Riviere; Bailey v. McCuen) is the kind the certification process is designed to catch.

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. Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994), is the case the AG repeatedly cites for measures whose text "precludes the writing of an acceptable ballot title."

Common questions

What's wrong with describing the amendment as providing for "the regulation of marijuana"?
The phrase says nothing meaningful. Voters need to know what the regulation does (who issues licenses, who can apply, what is allowed and what is not, what local-government control looks like), not just that there is regulation. A title that merely names the topic without describing the actual legal effects is misleading by omission.

Did the AG say cannabis legalization could not be put on the Arkansas ballot?
No. The opinion did not address the merits of cannabis legalization. A different sponsor with a tightly drafted proposal and a ballot title that explained what the amendment actually does could submit a similar measure under § 7-9-107.

Could the sponsor have fixed it and resubmitted?
Yes. The AG identified two problems: a generic ballot title and an ambiguous underlying proposal. Both would have to be addressed before resubmission.

Why does it matter if local governments can opt out?
Because that feature dramatically affects the practical reach of the amendment. A statewide legalization with broad municipal opt-out works very differently from one with no opt-out or with a narrow opt-out. Voters need that detail in the ballot title to make a reasoned decision.

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)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994)
• 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. 2018-108
September 19, 2018
Timothy S. Kelley, Sponsor

Dear Mr. Kelley:

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.

The decision to certify or reject is in no way a reflection of my view of the merits of the proposal.

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 Amendment 2020

Ballot Title: Shall there be an Amendment to the Arkansas Constitution concerning adult use marijuana, and, in connection therewith, providing for the regulation of marijuana; permitting a person twenty-one years or older to purchase, consume, possess, or cultivate up to six marijuana plants and limited amounts of marijuana; providing for the licensing of cultivation facilities, product manufacturing facilities, testing facilities, and retail stores; permitting local governments to regulate or prohibit such facilities; Section 8 shall not be construed to 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; and requiring the sales of recreational marijuana be subject to specified taxation.

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. In this case, I must reject the ballot title, popular name, and proposed measure due to fundamental deficiencies. Your proposed ballot title is wholly inadequate to fairly and adequately summarize the substance of your proposed constitutional amendment. But more significantly, the proposal itself, which is a convoluted attempt to make the use of marijuana by adults legal under state law, is fundamentally ambiguous to the extent that it precludes the crafting of a ballot title that will satisfy the Court's test for ballot title sufficiency.

DISCUSSION

The ballot title you have submitted is impermissibly misleading and wholly deficient in failing to fairly or completely summarize the substance of your proposed constitutional amendment or to describe changes the proposal would make in existing state law. It states that the amendment provides for "the regulation of marijuana," and it refers to "the licensing" of various entities and regulation by "local governments," but it contains little substantive information about the proposal's material effects. It is, therefore, inherently misleading. The precise manner of summarizing your proposal is a matter for you to determine and submit to this office in draft form. While I can modify a proposed ballot title to render it a more accurate summary of the measure, I am not authorized to craft a ballot title that amounts to an independent product.

Of greater significance, however, 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. The ability to fairly and completely summarize the effect of your proposal in a ballot title depends on the use of clear and precise terms in both the text and the title. The licensing and regulatory framework as drafted is ambiguous, and there is little to no way the proposal could be adequately and fairly summarized in a ballot title such that voters would be able to understand what they are being asked to consider.

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 Amendment 2020" (popular name, ballot title, and proposed amendment) is preserved in the official record as submitted; see the linked landing page for the source filing.