What was the Arkansas Citizens' Redistricting Commission constitutional amendment proposed in 2018?

Plain-English summary

Attorney David A. Couch submitted a proposed constitutional amendment to establish the Arkansas Citizens' Redistricting Commission, a 7-member independent commission that would handle decennial redistricting of state legislative and congressional districts. The amendment would have:

• Repealed Article 8 of the Arkansas Constitution, which gives apportionment authority to the existing Board of Apportionment (Governor, Secretary of State, and Attorney General).
• Repealed Ark. Code Ann. §§ 7-2-101 through 7-2-105 and removed the General Assembly's authority over congressional district lines.
• Created a 7-member Citizens' Redistricting Commission. Four members would be appointed by the legislative majority and minority leaders of the House and Senate (one each). Those four would then select three additional members by majority vote (or by blind selection from a pool if deadlocked). No more than four members could share political party affiliation.
• Vested original jurisdiction in the Arkansas Supreme Court to compel the Commission to perform its duties.
• Required the Commission to recommend a redistricting appropriation that the legislature would have to fund.

Attorney General Leslie Rutledge certified the popular name and ballot title as submitted. This is unusual; the AG more often rejects ballot titles. The opinion notes that the proposal had been carefully drafted by an experienced attorney.

The opinion came with two cautions. First, the subject matter (apportionment and redistricting) is significant and complex, which makes such measures susceptible to ballot-title challenges, and any ambiguity in the text could lead to a successful challenge. Second, the AG had already certified a substantively similar but separately drafted competing constitutional amendment (Op. 2018-086). The AG flagged concerns that two near-identical competing measures could lead to voter confusion at the booth.

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

Arkansas's existing redistricting framework before this proposed amendment:

• State legislative districts. Article 8 of the Arkansas Constitution establishes the Board of Apportionment, consisting of the Governor, Secretary of State, and Attorney General, which draws the boundaries of state House and Senate districts every ten years.
• Congressional districts. The General Assembly draws Arkansas's congressional district lines through legislation, with Ark. Code Ann. §§ 7-2-101 through 7-2-105 setting the framework.

Under the proposed amendment, both responsibilities would shift to the Citizens' Redistricting Commission. The seven-member design (four legislative-leader appointees, three additional members chosen by those four, with party-affiliation caps) was meant to insulate the redistricting process from direct partisan control.

The amendment would also vest original jurisdiction in the Arkansas Supreme Court to compel the Commission to perform its duties, providing a judicial enforcement mechanism if the Commission deadlocked or failed to act.

Why the AG's certification came with cautionary notes

Two cautions stand out:

Length and complexity. The opinion notes the correlation between length and complexity of initiated measures and their susceptibility to ballot-title challenges. The amendment is substantial: redistricting reform of this kind necessarily involves multiple sections governing membership, selection, deadlock procedures, district criteria, judicial review, and so on. Any ambiguity in any of those sections could be the basis for a court to find the ballot title insufficient.

Competing measures. The AG had already certified, in Op. 2018-086, what she described as "an independently proposed constitutional amendment that is substantively, although not verbatim, identical to your proposed measure." The AG had no statutory authority to refuse certification on the basis of a competing measure, but she expressed concern about the potential for voter confusion if both proposals were on the ballot. Op. 2017-010 had earlier flagged "grave concerns" about certifying multiple substantively identical petitions.

Common questions

Was this redistricting amendment certified?

Yes. The AG certified the popular name and ballot title as submitted, which is uncommon for substantial proposals.

What does the Citizens' Redistricting Commission do?

Under the proposed amendment, the Commission would handle decennial redistricting of state legislative and congressional districts. Membership would be 7, with the legislative majority and minority leaders of each chamber appointing one member each, and those four selecting three more by majority vote.

What does "no more than four members shall have any political party affiliation" mean?

The amendment requires that at least three of the seven Commission members not have a political party affiliation, as determined by statewide voter registration. The intent is to ensure independent voices on the Commission rather than allowing it to become a purely partisan body.

How would deadlocks be resolved?

The four legislative-leader appointees would select the three additional members by majority vote. If deadlocked, blind selection from a pool of nominees from each commissioner.

What was the competing measure?

The opinion references Op. 2018-086, which certified a "substantively, although not verbatim, identical" measure from a different sponsor. The opinion does not name the competing sponsor; details would be in Op. 2018-086.

What does AG certification mean?

That the popular name and ballot title meet the legal standards under Ark. Code Ann. § 7-9-107 and Arkansas Supreme Court precedent. Certification does not endorse the measure on its merits; it only confirms the title fairly summarizes the proposal.

Citations

Ark. Code Ann. §§ 5-55-601(b), 7-9-103, 7-9-107, 7-9-108, 7-9-601, 7-2-101 through 7-2-105, 7-5-309; Ark. Const. art. 8; Pafford v. Hall, 217 Ark. 734 (1950); Chaney v. Bryant, 259 Ark. 294 (1976); 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; Bailey v. McCuen, 318 Ark. 277 (1994); Crochet v. Priest, 326 Ark. 338 (1996); Becker v. McCuen, 303 Ark. 482 (1990); Roberts v. Priest, 341 Ark. 813 (2000); prior AG opinions Ops. Att'y Gen. 2018-086, 2017-010, 2017-032.

Source

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

Original opinion text

Opinion No. 2018-135
October 26, 2018
David A. Couch, Esq., Sponsor

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 constitutional amendment to establish the Arkansas Citizens' Redistricting Commission.

(Standard guidelines on AG ballot-title review under § 7-9-107 and the Arkansas Supreme Court's ballot-title sufficiency framework followed.)

RESPONSE

Your proposed popular name and ballot title are certified as submitted. I believe a cautionary note is warranted, however, in light of the significance of the subject matter undertaken, apportionment and redistricting, and the complexity and far-reaching effects of this proposal. You should be aware that experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot title challenge. Any ambiguity in the text of a measure could lead to a successful challenge.

Please also be aware that this office has already certified the popular name and ballot title of what I understand to be an independently proposed constitutional amendment that is substantively, although not verbatim, identical to your proposed measure. Although this office has no statutory authority to refuse to review or to reject a proposed measure on that basis, sponsors of such similar, yet nevertheless separate and thus competing, measures should be aware of the potential for voter confusion during the subsequent phases of the initiative process, and especially at the voting booth.

Pursuant to Ark. Code Ann. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and of the associated penalties for violations. Enclosed herewith are instructions that should be incorporated in your petition prior to circulation.

Sincerely,
LESLIE RUTLEDGE
Attorney General
Enclosure

POPULAR NAME

AN AMENDMENT TO ESTABLISH THE ARKANSAS CITIZENS' REDISTRICTING COMMISSION

BALLOT TITLE

THIS IS AN AMENDMENT TO THE ARKANSAS CONSTITUTION THAT CHANGES THE MANNER FOR THE DECENNIAL REDISTRICTING OF ARKANSAS CONGRESSIONAL AND STATE LEGISLATIVE DISTRICTS.

THE AMENDMENT ESTABLISHES A CITIZENS' REDISTRICTING COMMISSION (THE COMMISSION) CONSISTING OF SEVEN MEMBERS. THE AMENDMENT REPEALS ARTICLE 8 OF THE ARKANSAS CONSTITUTION THAT ESTABLISHES A BOARD OF APPORTIONMENT CONSISTING OF THE GOVERNOR, THE SECRETARY OF STATE AND THE ATTORNEY GENERAL. THAT BOARD CURRENTLY ESTABLISHES THE STATE LEGISLATIVE DISTRICTS. THE AMENDMENT REPEALS ARKANSAS CODE SECTIONS 7-2-101-105 AND REMOVES FROM THE GENERAL ASSEMBLY THE AUTHORITY TO ESTABLISH THE DISTRICTS FOR THE UNITED STATES CONGRESS. THE AMENDMENT PROVIDES THAT ONE OF THE MEMBERS SHALL BE APPOINTED BY THE MAJORITY LEADER OF THE HOUSE OF REPRESENTATIVES, ONE BY THE MINORITY LEADER OF THE HOUSE OF REPRESENTATIVES, ONE BY THE MAJORITY LEADER OF THE SENATE, AND ONE BY THE MINORITY LEADER OF THE SENATE. THESE FOUR MEMBERS OF THE COMMISSION SHALL CHOOSE THREE ADDITIONAL MEMBERS OF THE COMMISSION BY MAJORITY VOTE OR IF THE COMMISSION IS DEADLOCKED BY BLIND SELECTION FROM A POOL OF INDIVIDUALS NOMINATED BY EACH COMMISSIONER. NO MORE THAN FOUR OF THE MEMBERS OF THE COMMISSION SHALL HAVE ANY POLITICAL PARTY AFFILIATION AS DETERMINED BY STATEWIDE VOTER REGISTRATION.

THE AMENDMENT PROVIDES THAT THE COMMISSION SHALL MAKE TO THE LEGISLATURE A RECOMMENDATION FOR APPROPRIATION FOR ADEQUATE REDISTRICTING EXPENSES AND THAT THE LEGISLATURE SHALL MAKE THE NECESSARY APPROPRIATIONS BY MAJORITY VOTE. THE AMENDMENT PROVIDES THAT ORIGINAL JURISDICTION IS VESTED IN THE ARKANSAS SUPREME COURT TO COMPEL THE COMMISSION TO PERFORM ITS DUTIES.

(The full text of the proposed amendment, with detailed sections on Commission membership, district criteria, public input, judicial review, and other operational provisions, was attached to the original opinion. The instructions to canvassers and signers required by Ark. Code Ann. § 7-9-108 were also enclosed.)