Why did the Arkansas Attorney General reject the 2018 Arkansas Regulation of Marijuana Amendment ballot title?

Plain-English summary

In October 2018, sponsor Larry B. Morris submitted a proposed constitutional amendment titled "The Arkansas Regulation of Marijuana Amendment of 2020" and asked Attorney General Leslie Rutledge to certify its popular name and ballot title under Ark. Code Ann. § 7-9-107. The proposal would have legalized cultivation, production, distribution, transport, sale, and use of marijuana for adult recreational purposes; given the Arkansas Game and Fish Commission and the Alcoholic Beverage Control Division regulatory authority over recreational marijuana production; created Class A and Class B licensing categories at $250 and $500 per year; capped THC content in cannabis-infused food and drink; required the release and exoneration of non-violent marijuana offenders; and imposed an 8% recreational marijuana excise tax plus a 5% local sales tax.

The AG rejected the submission. The opinion told the sponsor he had submitted essentially the same measure the AG had already rejected in Opinion 2018-100. The earlier rejection flagged the proposal as "a convoluted state-wide decriminalization scheme that purports to include regulatory oversight." The 2018-119 submission added regulatory detail but did not cure the underlying problem. With both decriminalization and a substantive regulatory framework crammed into one proposed amendment, no ballot title could fairly summarize the measure for voters without misleading them about which feature dominated, how the licensing system would actually work, or how the criminal-law and tax-law changes would interact.

Under § 7-9-107, the AG had three options: certify, substitute and certify, or reject. The AG concluded that the underlying measure was so structurally deficient that no substitute ballot title could capture it honestly. The AG pointed out that recycling the same flawed language across resubmissions does not solve the problem; only redrafting the proposal itself does.

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 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. Subsection (c) is what authorized the rejection here.

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 redraft the sponsor's measure into a coherent proposal that an impartial ballot title could summarize.

Opinion 2018-100, which the AG cited as the prior rejection of essentially the same measure, characterized the proposal's combination of broad criminal decriminalization with detailed business-licensing regulation as inherently confusing for purposes of ballot-title drafting. The 2018-119 opinion extended that reasoning, telling the sponsor that adding more regulatory detail to a structurally tangled proposal does not solve the underlying problem.

Common questions

What was wrong with combining decriminalization and regulation in one measure?
The AG read the combination as creating two distinct legal effects (one criminal, one regulatory) that voters would have to understand simultaneously, with neither feature able to be summarized cleanly without leaving voters confused about how the other would work. The opinion described the result as a proposal whose ballot title could not honestly tell voters what they were voting for.

Did the AG say recreational marijuana legalization could not be put on the Arkansas ballot?
No. The opinion did not address the merits of legalization. It rejected this particular proposal's drafting. A different sponsor with a tightly drafted measure (or one that addressed only decriminalization, only licensing, or only criminal-record relief) and an impartial, brief ballot title could submit a recreational-marijuana proposal under the same statute.

Why does the AG reject resubmissions of the same measure?
The opinion explains that "it is insufficient under section 7-9-107(c) to recycle language previously identified as problematic." When the AG's first rejection identified specific drafting defects, resubmitting the same defective text without addressing those defects produces another rejection. The sponsor in this case had already received Opinion 2018-100 identifying the same issues.

What were the Class A and Class B licenses in this proposal?
The proposal contemplated two recreational-marijuana licenses. A Class A license at $250 per year would have permitted possession, cultivation, transport, and sale of recreational marijuana plants and an unlimited quantity of seed to adult residents or to other Class A or B holders. A Class B license at $500 per year would have permitted cultivation, production, transport, and sale of plants, unlimited seeds, and the production and sale of cannabis-derived products. The AG did not reach the merits of these provisions; the rejection rested on the structural deficiency of the overall measure.

Did this proposal interact with Arkansas's medical-marijuana law?
The proposal said it would not be construed to limit any rights of qualifying patients, caregivers, physicians, or licensed entities under the Arkansas Medical Marijuana Amendment of 2016. Whether that carve-out worked cleanly was not the basis for the rejection; the AG focused on the proposal's overall structural incoherence rather than its interaction with medical-marijuana law.

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)
• Op. Att'y Gen. 2018-100 (the AG's prior rejection of essentially the same measure, cited and quoted)
• Arkansas Medical Marijuana Amendment of 2016 (referenced in the proposal as a carve-out)

Source

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

Original opinion text

Opinion No. 2018-119
October 4, 2018
Mr. 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 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. Consequently, this review has been limited primarily to a determination 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 constitutional amendment:

Popular Name: The Arkansas Regulation of Marijuana Amendment of 2020

Ballot Title: An Amendment to the Arkansas Constitution making the cultivation, production, distribution, transport, sale, and use of marijuana for adult recreational purposes legal under State law; recognizing that the listed activities with respect to marijuana is prohibited under federal law; under this Amendment the Arkansas Game and Fish Commission and the Alcoholic Beverage Control Division shall regulate the cultivation and production of recreational marijuana that is sold in the State, the Commission shall issue two types of recreational marijuana licenses to any adult or business who are a resident of the State to cultivate, manufacture, and sell recreational marijuana plants and products produced therefrom; a Class A license which would permit the possession, cultivation, transport, and sale of recreational marijuana plants, and an unlimited quantity of seed to adult residents or Class A or B license holders; a Class B license would permit the cultivation, production, transport, and sale of recreational marijuana plants, an unlimited quantity of seeds, and permits the production and sale of products produced from the plant; providing that a Class A license cost shall not exceed $250 a year per license holder, and a Class B license cost shall not exceed $500 a year per license holder; providing that the Commission and the Division may adopt additional rules, regulations, and penalties to prevent the use of recreational marijuana by minors, to increase product safety, and consumer awareness; under this Amendment any adult who is a resident of this State shall have the right to cultivate, possess, transport, and purchase up to 6 recreational marijuana plants out of public view, may purchase up to 4 ounces of smokable or vaporizable recreational marijuana a day, and may possess an unlimited quantity of seeds and products produced from the plant, and may distribute up to 6 recreational marijuana plants, seeds, and product produced from the plant to any adult resident without receiving payment in return; non-resident adults shall have the right to possess and purchase up to one ounce of smokable or vaporizable recreational marijuana a day, and up to 72 ounces of recreational marijuana in the form of food or drink a day; under this Amendment any person serving incarceration, probation, or parole for violating the Arkansas Uniformed Controlled Substances Act as it pertains to marijuana, whose current and only conviction was for a marijuana related offense shall be released and all criminal records shall be expunged of such convictions that occurred prior to the Amendment's effective date of November 4, 2020; under this Amendment the sales of recreational marijuana will be subject to existing sales tax, and an additional 8% recreational marijuana excise tax, and a local sales tax of 5% and the General Assembly shall determine the allocation of the tax revenue received by the State from the sales; under this Amendment recreational marijuana plants and products produced therefrom can only be sold in a location that is 1500 feet away or more from a public or private school, church, or daycare; under this Amendment the recreational marijuana that is sold in the form of food or drink (a) shall not be designed to appeal to children; (b) shall not exceed 10 milligrams of THC per serving, and (c) labeling or packaging must provide product information; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under State law; and providing that the Amendment (a) shall not be construed to affect the ability of employers to have policies restricting the use of recreational marijuana by employees, (b) shall not be construed to permit driving under the influence of marijuana, (c) shall not be construed to permit the transfer of recreational marijuana to anyone under 18 years of age; (d) nor permit anyone under 18 years of age to cultivate, produce, sell, distribute, transport, possess, or use recreational marijuana, and (e) 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.

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

You have submitted essentially the same measure I rejected in Attorney General Opinion 2018-100. You have added to the measure's regulatory features, but the added language does not cure the proposal's fundamental deficiencies. The measure at issue in the previous opinion was flagged as involving "a convoluted state-wide decriminalization scheme that purports to include regulatory oversight." The same is true of the proposal at hand. Indeed, it is even more apparent that any ballot title premised on the measure's regulatory features would be inherently misleading to the voters.

It is insufficient under section 7-9-107(c) to recycle language previously identified as problematic under the guidelines set out above. By doing so, it will result (and has resulted here) in continued failures to address fundamental shortcomings that have been discussed in previous responses from this office. The proposed measure remains fundamentally deficient to the extent that it precludes the drafting of a ballot title that will satisfy the Court's test for ballot title sufficiency.

CONCLUSION

As stated above, section 7-9-106 does not authorize or require me to modify the proposed measure itself in order to then 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 sponsors' 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.

Leslie Rutledge
Attorney General

Enclosure: The full text of "The Arkansas Regulation of Marijuana Amendment of 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.