Why did Arkansas reject the 2018 'Arkansas Rank Voting Initiative' as a proposed initiated act?

Plain-English summary

Gary Fults submitted a proposed initiated act called the "Arkansas Rank Voting Initiative" for ballot-title certification. This was a resubmission of a measure the AG had rejected in Op. 2018-112. The AG rejected the new submission too, identifying the same fundamental defects: the proposed measure was too ambiguous to admit a fair ballot title, and the new ballot title made things worse by virtually duplicating the text of the proposal.

Two specific issues drew the AG's attention:

1. The proposed measure remained ambiguous. Section 2 set up an "offset section" where voters could rank candidates if three or more were running for the same office, but the operational rules for tabulation, runoff handling, and how multiple ranked ballots would interact were not clear. The AG had flagged this in Op. 2018-112; the resubmission did not change the text of the proposed measure.

2. The new ballot title amplified rather than cured the problem. The expanded ballot title essentially reproduced the entirety of the proposed measure rather than summarizing it. Doing that drew the proposal's own ambiguities and inconsistencies into the ballot title itself.

The AG also flagged a procedural defect: the submission described itself as an initiated act under Ark. Const. art. 5, § 1 (rather than a constitutional amendment as before), but it omitted the enacting clause that Ark. Code Ann. § 7-9-104(a) requires for initiated-act petitions.

The AG could substitute a more suitable ballot title under § 7-9-107 but could not redraft the underlying measure. Because the underlying measure was the source of the ambiguity, substitution could not solve the problem. The AG's office is also barred by Ark. Code Ann. § 25-16-701 from engaging in the private practice of law, which is what redrafting a sponsor's measure would amount to.

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 governs the AG's review of popular names and ballot titles. The AG has three options: certify, substitute and certify, or reject the entire submission if it is misleading.

The Arkansas Supreme Court has built a deep body of precedent around what makes a ballot title sufficient. The opinion cites the standard cases: Bailey v. McCuen (ballot titles must be free of misleading tendency, not tinged with partisan coloring); Becker v. McCuen (must be honest and impartial); Christian Civic Action Comm. v. McCuen (must convey an intelligible idea of the scope and significance); Lange v. Martin (must adequately inform voters and enable a reasoned decision in the voting booth); Roberts v. Priest (cannot be approved if the proposal text creates internal inconsistency); Wilson v. Martin (technical terms must be defined); Donovan v. Priest and Plugge v. McCuen (specific framework); Kurrus v. Priest (procedural requirements).

For initiated acts specifically, the procedural rules add another layer. Ark. Const. art. 5, § 1 requires that initiated-act petitions include an enacting clause. Ark. Code Ann. § 7-9-104(a) sets out specific language that must appear above the full text of a proposed measure. Failure to include that language is an independent procedural defect.

Why resubmitting unchanged language doesn't work

The opinion makes a structural point that applies to all ballot-title resubmissions: simply re-filing language previously identified as deficient, without addressing the underlying defects, will produce another rejection. The AG's office cannot serve as a sponsor's editor. The sponsor must vet the measure, ensure compliance with the Court's standards, and present a clean submission. Putting the fix back on the AG's office would, in effect, ask the AG to engage in the private practice of law, which is statutorily forbidden.

The opinion also notes that ballot titles must remain "brief and concise" under § 7-9-107(b) and consistent with the practical constraints of voting (the five-minute booth limit under § 7-5-309). A ballot title that copies most of the proposed measure cannot satisfy both the duty to inform and the duty to be brief.

Common questions

Why did the AG reject this rank voting initiative?

Three reasons: the proposed measure remained ambiguous about how voters would actually vote and how results would be tabulated, the new ballot title essentially duplicated the proposal's problematic text rather than summarizing it, and the initiated act lacked the constitutionally required enacting clause.

Was this the first time the sponsor's rank voting proposal was rejected?

No. Op. 2018-112 had already rejected an earlier version. This 2018-123 rejection was of the resubmission. A later submission (a constitutional amendment version) was rejected in Op. 2018-141.

Can the Attorney General fix a sponsor's proposed measure?

No. The AG can substitute a ballot title under § 7-9-107, but the underlying measure must come from the sponsor. The AG is statutorily barred from engaging in the private practice of law (Ark. Code Ann. § 25-16-701).

What's the difference between an initiated act and a constitutional amendment?

An initiated act amends statutes (or creates new ones); a constitutional amendment changes the state constitution. They are submitted under the same § 7-9-107 procedure but have different effects and different procedural requirements (the enacting clause, for instance, is required for initiated acts under Ark. Code Ann. § 7-9-104).

What is "partisan coloring" in a ballot title?

Per Bailey v. McCuen and Crochet v. Priest, language that "creates a fatally misleading tendency" or "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." Ballot titles must be neutral.

Citations

Ark. Code Ann. §§ 7-9-104, 7-9-107, 25-16-701, 7-5-309; Ark. Const. art. 5, § 1; Pafford v. Hall, 217 Ark. 734 (1950); Chaney v. Bryant, 259 Ark. 294 (1976); Moore v. Hall, 229 Ark. 411 (1958); May v. Daniels, 359 Ark. 100 (2004); Wilson v. Martin, 2016 Ark. 334; Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994); Lange v. Martin, 2016 Ark. 337; Becker v. Riviere, 270 Ark. 219 (1980); Bailey v. McCuen, 318 Ark. 277 (1994); Becker v. McCuen, 303 Ark. 482 (1990); Crochet v. Priest, 326 Ark. 338 (1996); Roberts v. Priest, 341 Ark. 813 (2000); Donovan v. Priest, 326 Ark. 353 (1996); Plugge v. McCuen, 310 Ark. 654 (1992); Kurrus v. Priest, 342 Ark. 434 (2000); prior AG opinions Ops. Att'y Gen. 2017-070, 2017-032, 2018-112.

Source

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

Original opinion text

Opinion No. 2018-123
October 17, 2018
Mr. Gary Fults, Sponsor
1314 East Woodson Lateral Road
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 act.

Code section 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.

REQUEST

You have requested certification of the following popular name and ballot title for a proposed initiated act establishing a rank voting system (full text of the popular name, ballot title, and proposed measure attached as an enclosure to the original opinion).

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 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."

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."

While I am authorized to substitute and certify a ballot title that is more suitable, section 7-9-107 does not contemplate that I generate a ballot title when the one submitted is wholly deficient. Nor does the statute require that I modify the proposed measure itself in order to then summarize its text in a suitable ballot title. 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. In this case, I must reject your resubmitted proposal in light of continued fundamental deficiencies. In my opinion, your proposed ballot title is wholly inadequate to fairly and adequately summarize the substance of your proposal in a way that voters could understand what they are being asked to consider. But more significantly, the proposal itself, which is an attempt to dramatically alter long-established election law in Arkansas, remains so ambiguous that it precludes the crafting of a ballot title that will satisfy the Court's test for ballot title sufficiency.

DISCUSSION

You have submitted the same measure I rejected in Attorney General Opinion 2018-112. You have changed and expanded the wording of your ballot title, but that has not cured the proposal's fundamental deficiencies. In fact, your latest ballot title virtually contains the entirety of your proposed measure and reflects no apparent effort to identify and summarize the most substantive and important provisions. Virtually repeating the entirety of your proposed measure, in fact, takes the problematic aspects of the text of your initiative and makes them a part of the ballot title as well.

In my previous opinion, I stated my belief that the Arkansas Supreme Court would have serious concerns about voters' ability to fully understand and appreciate the issues presented in your proposed initiated act. I also explained that your measure proposed a radical change in election law and in how the electorate selects candidates for office via a ranking scheme. Additionally, as I explained, the text of your measure is overly simplistic and does not clearly explain how: 1) the electors would actually and ultimately vote for the candidate(s) of their choice; and 2) election results would ultimately be decided. As you have not changed the text of your measure from what was previously submitted, this fundamental problem remains.

It is insufficient under section 7-9-107(c) to merely resubmit 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 the shortcomings that have been discussed in previous responses from this office. The proposed measure remains fundamentally deficient.

I also note a procedural defect: unlike your previous submission, you have now specified that you are proposing an initiated act, as opposed to a constitutional amendment, pursuant to Article 5, section 1 of the Arkansas Constitution; yet your current submission has omitted the enacting clause required for proposed initiated acts under Ark. Code Ann. § 7-9-104(a). These formal requirements must be met when submitting an "original draft" of a petition to this office.

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.

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 duty to the electorate with the utmost seriousness that I must reject your submission.

Sincerely,
LESLIE RUTLEDGE
Attorney General
Enclosure

(The submission's full text, including the popular name "ARKANSAS RANK VOTING INITIATIVE," the ballot title, and the proposed initiated act with sections on title, ranked voting election procedure, and effective date, was attached to the original opinion.)