Why did the Arkansas Attorney General reject the 2018 ranked-choice voting initiative's ballot title?

Plain-English summary

In September 2018, sponsor Gary Fults submitted a proposed measure called the "Arkansas Rank Voting Initiative" and asked Attorney General Leslie Rutledge to certify its popular name and ballot title under Ark. Code Ann. § 7-9-107. The measure would have replaced Arkansas's traditional plurality voting system with a ranked-choice system: voters would rank candidates, and if no candidate won a majority, the last-place candidate would be eliminated and that candidate's ballots reassigned to each voter's next-ranked choice, repeating until one candidate held a majority.

The AG rejected the entire submission. Three problems stood out. First, the document never said whether it was an initiated act or a constitutional amendment, even though Arkansas treats those two paths to the ballot very differently. The submission used the generic word "initiative." That ambiguity by itself was fatal. Second, the proposed ballot title leaned on partisan-coloring language, telling voters the measure would create a system that "more accurately reflects the attitudes of the voting public." The AG read that as marketing copy, not an impartial summary, and said it failed to describe the substantive changes the measure would make to Arkansas election law. Third, and most serious, the text of Section 2 was confusing about how a voter's ballot would actually be counted, in what order, and how the eventual winner would be determined. The AG concluded that no ballot title could fairly summarize a proposal whose own mechanics were unclear.

Under § 7-9-107, the AG had three options: certify, substitute and certify, or reject. The AG could not lawfully rewrite the underlying measure to make it summarizable, so rejection was the only path available.

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

Amendment 7 to the Arkansas Constitution (codified at Ark. Const. art. 5, § 1) reserves to the people the power to enact their own laws by initiated act and to amend the constitution by initiated amendment. The two paths require different signature thresholds (8% of legal voters for an act, 10% for an amendment) and have different legal effects. Ark. Code Ann. § 7-9-107 directs the Attorney General 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 built up a body of doctrine on what makes a ballot title sufficient. The title must be impartial, free from "partisan coloring," and concise enough to read inside the five-minute voting-booth limit set by Ark. Code Ann. § 7-5-309. It must also include any "essential fact" that would give a voter "serious ground for reflection," and it cannot use technical terms that voters cannot reasonably be expected to understand. When the underlying text is itself ambiguous, the Court has said the AG cannot craft a ballot title that papers over the ambiguity, because doing so would amount to drafting the measure on the sponsor's behalf, which Ark. Code Ann. § 25-16-701 forbids.

Common questions

Did the AG reject this opinion because the AG opposes ranked-choice voting?
No. The opinion explicitly states that the AG does not consider the merits of a measure when deciding whether to certify or reject, and the AG repeated that disclaimer twice in the letter. The rejection was about drafting deficiencies, not policy.

Could the sponsor have fixed it and resubmitted?
The opinion left that door open. The sponsor would have had to specify whether the proposal was an initiated act or a constitutional amendment, rewrite Section 2 to make the tabulation procedure clear, and replace the partisan-leaning language in the ballot title with an impartial description of the changes the measure would make to existing election law.

Why couldn't the AG just substitute a better ballot title?
Section 7-9-107 lets the AG substitute a more suitable title only when the underlying proposal is itself coherent. Here the AG concluded that the text of Section 2 was too ambiguous about ranked-choice mechanics for any ballot title to honestly summarize it. Drafting around an ambiguous measure would, in the AG's view, cross the line into private-practice lawyering for the sponsor, which Ark. Code Ann. § 25-16-701 prohibits.

What is "partisan coloring" in a ballot title?
The Arkansas Supreme Court has described partisan-coloring language as wording that creates a "fatally misleading tendency" or that gives voters only the impression that the proposal's supporters want to convey. The AG flagged the phrase "more accurately reflects the attitudes of the voting public" as exactly this kind of language: it tells voters the proposal works rather than describing what it does.

Does this opinion mean ranked-choice voting cannot be put on the Arkansas ballot?
No. It only means that this particular submission failed the certification step. A different sponsor with a clearly drafted measure and an impartial ballot title could submit a ranked-choice proposal and have it certified.

Citations

• Ark. Code Ann. § 7-9-107 (statutory authority and standards for AG ballot-title certification)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth time limit)
• Ark. Code Ann. § 25-16-701 (AG cannot engage in private practice of law)
• Ark. Const. art. 5, § 1 (Amendment 7, reserving initiative and referendum powers to the people)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential-fact omission and brevity standard)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (impartial-summary requirement)
• 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")

Source

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

Original opinion text

Opinion No. 2018-112
September 26, 2018
Mr. Gary Fults, Sponsor
1314 E Woodson Lateral Rd.
Hensley, AR 72065
Dear Mr. Fults:

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.

Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the proposed act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to law," this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your 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 "initiative":

Popular Name: Arkansas Rank Voting Initiative

Ballot Title: To create a system for selecting candidates qualifying for each election in each office that more accurately reflects the attitudes of the voting public and to require that the State of Arkansas provide ballots that allow an elector to rank his or her order of preference for each candidate for each office contested by three (3) or more candidates. To set procedures to tabulate votes in sequential rounds in which last-place candidates are defeated and the candidate with the most votes in the final round is elected.

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.

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 neither contemplates nor requires that I compose an entirely new ballot title when the one submitted is wholly deficient. Nor does the statute require that I modify or rewrite the proposed measure itself, in order to then summarize its text in a suitable ballot title. Instead, crafting and accurately summarizing the measure are the sponsor's responsibilities prior to submission.

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 in light of a number of fundamental deficiencies with your submission. At the most basic level, your submission fails to state whether it is a proposed constitutional amendment or an initiated act. Additionally, the proposed popular name is misleading, and the ballot title is wholly inadequate to fairly and adequately summarize the substance of your proposal. But more significantly, the proposal itself, which is an attempt to dramatically alter long-established election law in Arkansas, 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

Amendment 7 to the Arkansas Constitution, while vesting legislative authority with the General Assembly, reserves to the people themselves the power to initiate their own laws ("initiated acts") and amendments to the constitution. However, initiated acts and constitutional amendments are very different things, with differing requirements to have them placed on the ballot. While you use the term "initiative" in your proposal, it is wholly unclear from what you have submitted what exactly it is you are offering, an initiated act or a constitutional amendment. This is a fatal flaw that, standing alone, would leave me no choice but to reject your measure.

Further, your proposed ballot title is impermissibly misleading and thoroughly deficient in failing to fairly or completely summarize the substance of your proposal. Neither does it adequately describe the very substantive changes your proposal would make to existing state law. Your ballot title states, to give but one example, that your proposal would "create a system for selecting candidates qualifying for election ... that accurately reflects the attitudes of the voting public ...." In my opinion, this language is both inherently misleading and impermissibly lends partisan coloring to what you are proposing. Moreover, it completely fails to describe and summarize the changes your proposal would make to Arkansas law. 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 measure. The ability to fairly and completely summarize the effect of your proposal to the voters in a ballot title is dependent upon the use of clear and precise terms in both the text and ballot title. Your measure proposes a radical change in how votes are counted and elections decided, from the traditional and familiar "winner-take-all" (a.k.a., "first-past-the-post") voting system to a candidate-ranking scheme. But the text of your measure, especially Section 2, is very confusing with respect to precisely how an elector's vote would actually be counted for the candidate of his choice, and with respect to how election results ultimately would be determined. As presently constituted, and in my opinion, there is little to no way your 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. Nor, in my opinion, could any summary of the proposal satisfy the Court's exacting standards for acceptable ballot titles.

In sum, the ballot title you have submitted fails to sufficiently summarize the substance of your "initiative" and describe changes the proposal would make in existing state law. But, in my opinion, this failure will be extremely difficult to cure. This may be a case where the text, in the words of the Court, "precludes the writing of an acceptable ballot title."

CONCLUSION

For at least these reasons, your submission falls short of the minimum criteria for certification under section 7-9-107. These deficiencies may not necessarily be 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 popular name, ballot title, and proposed measure in their entirety. Sponsors must undertake themselves to craft submissions meeting the rigorous standards for certification that section 7-9-107 obligates my office to verify. In other words, sponsors must make the necessary efforts to ensure that their proposed measures, popular names, and ballot titles have been thoroughly vetted for compliance with the high standards established by the Court prior to their submission to my office.

My office is not charged with any role in drafting initiated amendments or acts. Nor can I advise or advocate for private, individual sponsors. My duty in reviewing submissions under section 7-9-107 is not to a given sponsor, but to the electorate as a whole. It is in undertaking this solemn duty with the utmost seriousness that I must reject your submission.

Sincerely,
Leslie Rutledge
Attorney General