Why did the Arkansas Attorney General reject a 2018 marijuana initiated act submission that used a blacklined statute draft?

Plain-English summary

In October 2018, sponsor Rebeca Rodriguez submitted a proposed initiated act titled "An Act to Remove Marijuana from the Arkansas Uniformed Controlled Substances Act" and asked Attorney General Leslie Rutledge to certify its popular name and ballot title under Ark. Code Ann. § 7-9-107. The proposal sought to amend Ark. Code Ann. § 5-64-215 (the schedule that classifies marijuana as a controlled substance in Arkansas) by removing marijuana, plant-derived tetrahydrocannabinols, and resinous cannabis extracts from Schedule VI, eliminating the corresponding state-law penalties for manufacturing, possessing, or distributing marijuana while acknowledging that those activities would remain illegal under federal law.

The AG rejected the submission without reaching the merits of the ballot title. The threshold problem was that the document Rodriguez submitted was a blacklined working draft showing struck-through text with proposed deletions and additions to § 5-64-215. Some of the struck-through language did not actually appear in the current version of the statute, and other inserted language was new content that was not in the existing statute either. The AG could not tell whether the document was a finished product or a transitional drafting step. Section 7-9-107(a) requires the sponsor to submit an "original draft" of the measure, and the AG read that as a clean, finished proposed-act text, not a redline showing edits-in-progress.

Without a clean original draft, the AG could not perform the certification review at all, because the ballot title is supposed to summarize a finite, identified text. So the AG rejected popular name, ballot title, and proposed measure together.

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(a) directs that "the sponsors shall submit the original draft to the Attorney General, with a proposed ... ballot title and popular name." The AG read the phrase "original draft" as a finished proposed text of the act, not a working document containing tracked changes. Subsection (c) authorizes the AG to certify, substitute and certify, or reject submissions that are misleading. But the threshold question, before any of those options applies, is whether the AG has been given a complete proposed measure to review at all.

Ark. Code Ann. § 5-64-215 is the Schedule VI listing in the Arkansas Controlled Substances Act. The proposed initiated act was framed as an amendment to that section. To analyze whether a ballot title accurately summarized the proposal, the AG would have needed a clean text identifying exactly what § 5-64-215 would say if the act passed. The blacklined draft did not provide that, because the deletions and additions in it did not reconcile with the actual current text of § 5-64-215.

Ark. Code Ann. § 25-16-701 prohibits the AG from engaging in the private practice of law. The AG cited that limit when explaining that the office could not rewrite the sponsor's draft into a clean original.

Common questions

What does "blacklined" mean in this context?
A blacklined document, sometimes called a redline, shows proposed edits to existing text by striking through words to be deleted and inserting new words to be added. It is a working tool used during drafting to make changes visible. It is not the same as a clean version of the final proposed text.

Why couldn't the AG just figure out what the sponsor meant from the blackline?
Because the blackline did not match the current statute. Some "deletions" struck text that was not actually in § 5-64-215. Some additions were new content. The AG could not tell whether the sponsor had been working from a different (perhaps outdated) version of the statute, whether the deletions were errors, or whether the document was truly meant as the final text. With that uncertainty, no ballot title could honestly tell voters what the act would actually do.

Could the sponsor have fixed this and resubmitted?
Yes. The fix would have been to produce a clean text of the proposed initiated act, written as § 5-64-215 would read after the act took effect, and to submit that clean text along with a popular name and ballot title.

Did the AG say marijuana legalization is illegal in Arkansas?
No. The opinion did not address the policy merits or the legality of the proposed change. It addressed only whether the submission met the threshold requirements of § 7-9-107(a).

What is the difference between an initiated act and a constitutional amendment?
An initiated act is a proposed statute that voters enact directly through the petition-and-ballot process. A constitutional amendment changes the Arkansas Constitution itself. The two have different signature thresholds (8% of legal voters for an act, 10% for an amendment) and different legal effects: a statute can later be repealed or amended by the legislature, while a constitutional amendment can only be changed by another vote of the people.

Citations

• Ark. Code Ann. § 7-9-107 (statutory authority and standards for AG ballot-title certification, including the original-draft requirement at subsection (a))
• Ark. Code Ann. § 7-9-106 (companion procedural section)
• Ark. Code Ann. § 5-64-215 (Schedule VI of the Arkansas Controlled Substances Act, the section the proposed act would have amended)
• Ark. Code Ann. § 25-16-701 (AG cannot engage in private practice of law)

Source

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

Original opinion text

Opinion No. 2018-118
October 4, 2018
Rebeca Rodriguez, Sponsor
2411 South State Street
Little Rock, AR 72206

Dear Ms. Rodriguez:

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 a proposed initiated act titled "An Act to Remove Marijuana from the Arkansas Uniformed Controlled Substances Act." The act would amend Ark. Code Ann. § 5-64-215 to remove marijuana, plant-derived tetrahydrocannabinols, and resinous extractives of the genus Cannabis from Schedule VI, eliminating the corresponding state-law penalties while recognizing that the listed activities remain illegal under federal law.

GUIDELINES

[Standard ballot-title-sufficiency guidelines applicable under § 7-9-107 and Arkansas Supreme Court precedent. The ballot title must be impartial, brief, free of partisan coloring, and an accurate summary of the proposed measure.]

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. Your submission has a threshold shortcoming that requires me to reject popular name, the ballot title, and proposed measure as drafted.

DISCUSSION

Before I can review any popular name and ballot title under the Court's guidelines, and as a condition of my certification, I must be provided with the complete text of the proposed constitutional amendment or initiated act. This requirement is reflected in section 7-9-107(a), which provides that "the sponsors shall submit the original draft to the Attorney General, with a proposed ... ballot title and popular name." (Emphasis added.)

In this regard, it is unclear whether you intended your current submission to be considered a finished product. Your submission contains some struck-through text that is currently a part of the statute your proposal appears designed to amend (Ark. Code Ann. § 5-64-215 (Repl. 2016)). This is a common drafting technique present in a "blacklined" document to show deletions from a current version. But in this case, certain deletions are not from the current version of section 5-64-215. Your submission contains other language that is not contained in section 5-64-215. This creates confusion about what you are trying to convey in using this drafting technique. It raises a question whether what you have submitted is a finished product. And it makes it difficult, if not impossible, for voters to determine from this draft precisely what changes you are proposing.

This document may be of use to you as a drafting step that enables you to reflect on how precisely you propose changing current law. However, any such transitional work product does not amount to an "original draft" of the sort that section 7-9-107 requires you to submit along with your proposed popular name and ballot title.

CONCLUSION

As stated above, section 7-9-106 does not authorize or require me to modify the proposed measure itself, in order to summarize its text in a suitable ballot title. My office is not charged with any role in drafting initiated amendments or acts. Instead, crafting and accurately summarizing the measure are the sponsor's responsibilities prior to submission. Sponsors must vet their proposed measures, popular names, and ballot titles to ensure they meet the criteria established by section 7-9-107 and the Arkansas Supreme Court. Your submission falls short of these criteria. I must therefore reject your popular name, ballot title, and proposed measure.

Sincerely,
Leslie Rutledge
Attorney General

Enclosure: An Act to Remove Marijuana from the Arkansas Uniformed Controlled Substances Act. The full text of the popular name, ballot title, and proposed initiated act (in blacklined form) was filed with the AG and is preserved in the official record; see the linked landing page for the source filing.