Why did Arkansas reject the popular name and ballot title for the 2019 cannabis industry constitutional amendment?

Plain-English summary

Clair Danner sponsored a proposed Arkansas constitutional amendment titled the "Arkansas Cannabis Industry Regulation and Taxation Amendment." She submitted the popular name, ballot title, and full text of the measure to the Attorney General for certification, as Ark. Code Ann. § 7-9-107 requires before signature gathering can begin. This was her third try; the AG had rejected two earlier versions in 2017 and 2018, in part because they would have given voters the impression that the proposed amendment could negate or alter federal law.

Attorney General Leslie Rutledge rejected the third submission in full: the popular name, the ballot title, and the proposed measure itself. She acknowledged that Danner had fixed one of the threshold problems from the prior submissions, but noted that the rest of the proposal remained "essentially indistinguishable" from those earlier rejections. The fundamental defect was length and complexity. The proposed amendment ran more than 25 pages with intricate licensing schemes, definitions, royalty arrangements, and detailed regulatory mechanics that voters could not absorb in the time they have at the ballot box. Under Arkansas Supreme Court precedent (Bailey v. McCuen, Lange v. Martin, Walker v. Priest), a ballot title cannot honestly summarize a measure that is itself too complex to be summarized.

The opinion emphasized the AG's narrow institutional role: she is to certify, substitute and certify, or reject. Section 7-9-107 does not authorize her to redraft a deficient measure. That work has to be done by the sponsor before submission.

Currency note

This opinion was issued in 2019. 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 Code Annotated § 7-9-107 governs the AG's review of popular names and ballot titles for proposed initiated measures. Under that section, the AG must do one of three things: certify the popular name and ballot title as submitted, substitute and certify a more suitable popular name or ballot title if practicable, or 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."

The Arkansas Supreme Court has built a substantial body of law around what makes a ballot title sufficient:

• Ballot titles must "honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act" (Arkansas Women's Political Caucus v. Riviere).
• Ballot titles must "adequately inform" voters of the proposed amendment's content, enabling a "reasoned decision in the voting booth" (Lange v. Martin).
• A ballot title cannot be approved if the measure's text creates internal inconsistencies that defeat any clean summary (Roberts v. Priest).
• Length and complexity, taken alone, can defeat a voter's ability to form an intelligent opinion at the ballot box (Walker v. Priest, cited in the rejection).

The AG read these cases together to mean that some measures are simply not summarizable in a ballot title that voters can absorb in their voting-booth time. When that's true, the deficiency is in the measure itself, not the title.

Why the AG could not "fix" the submission

The opinion is explicit about its limits. Section 7-9-107 lets the AG craft a more suitable ballot title: but it does not authorize her to redraft the proposed measure to make it summarizable. That responsibility belongs to the sponsor. The AG noted, citing Op. Att'y Gen. 2017-032 and Ark. Code Ann. § 25-16-701, that the AG is forbidden from engaging in private practice of law, which is what redrafting an initiated measure for a sponsor would be.

The opinion put the duty bluntly: "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."

What the proposed amendment tried to do

The proposed measure was sweeping. It would have declared the cannabis industry legal under Arkansas state law (while acknowledging continued federal illegality), set up a complete state licensing and regulatory regime through a new Bureau of Cannabis Control and Cannabis Control Board, defined dozens of terms (residential home business cannabis license, retail cannabis license, royalty/special tax/interest fee/compensation, unreasonable pricing, unreasonably impracticable, and others), specified taxation and revenue distribution, granted limited civil and criminal immunity to licensed facilities, and amended Articles 2 and 10 of the Arkansas Constitution by adding new sections on environmental protection and natural resource cannabis protection.

A particular oddity was the "royalty/special tax/interest fee/compensation" provision, which would have directed a permanent 20% royalty on all cannabis sales to "the Retinue Consortium Corporation … or its successor": described as a payment to the founder and author of the amendment. Provisions of that kind made the measure additionally hard to fairly summarize on a ballot.

Common questions

Why did the Attorney General reject this cannabis amendment?

The AG concluded that the measure was so long and complex that no ballot title could fairly summarize it for voters in the time available at the ballot box. That defect made the entire submission rejectable under Ark. Code Ann. § 7-9-107.

Was this the first time the sponsor's cannabis amendment had been rejected?

No. The opinion references Ops. Att'y Gen. 2018-113 and 2017-120, both of which rejected earlier versions of the same proposal. Those earlier rejections were partly based on the impression the measure would have given voters that it could override federal law. The 2019 version had fixed that issue but retained the same length and complexity problems.

Could the Attorney General have rewritten the ballot title or the measure to make it work?

The AG can substitute a more suitable popular name or ballot title under § 7-9-107. She cannot rewrite the proposed measure itself. When the underlying measure is the source of the summarization problem, a substitute ballot title cannot cure the defect.

What does "length and complexity" mean as a legal standard?

It means the Arkansas Supreme Court has acknowledged (in Walker v. Priest) that "at some point, length and complexity alone might militate against a voter's ability to form an intelligent opinion about the issue at hand." There is no exact word count; it is a contextual judgment about whether a voter can reasonably grasp the measure from the ballot title within ballot-booth time constraints.

What was the practical next step for the sponsor?

The opinion suggests that the sponsor would need to redraft the measure into something simpler: fewer provisions, fewer defined terms, fewer interlocking schemes: before resubmitting. The AG cannot do that work for the sponsor.

Citations

Ark. Code Ann. §§ 7-9-107, 25-16-701; Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846, 848 (1948); Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980); Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994); Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154; Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000); Walker v. Priest, 342 Ark. 410, 426, 29 S.W.3d 657, 665 (2000); prior AG opinions Ops. Att'y Gen. 2018-113, 2017-120, and 2017-032.

Source

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

Original opinion text

Opinion No. 2019-006
January 29, 2019
Ms. Clair Danner, Sponsor
277 Marion County 5029
Saint Joe, AR 72675
Dear Ms. Danner:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

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.

At the time they are submitted to my office under section 7-9-107, the popular name and ballot title for proposed constitutional amendments and acts "should be complete enough to convey an intelligible idea of the scope and import of the proposal." And it follows from my duty to reject misleading submissions that any ballot title submitted for review should represent the sponsor's attempt to summarize her proposed amendment or act in a non-misleading fashion. While I am authorized to craft and certify a ballot title that is more suitable for voters to understand, section 7-9-107 does not contemplate that I substitute a ballot title for one that is wholly deficient as submitted. Nor does the statute require that I modify the proposed measure itself in order to then summarize the measure in a suitable ballot title. Crafting the measure's text and accurately summarizing that text in a ballot title are the sponsor's responsibility prior to submission.

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

Arkansas Cannabis Industry Regulation and Taxation Amendment

Ballot Title

An amendment to the Constitution making the cannabis industry legal under Arkansas State law while acknowledging that cannabis is illegal under federal law; establishing a system to legalize, control, license, regulate and tax for the regulation, taxation, cultivation, acquisition, personal use, and distribution of the cannabis industry through licensed businesses, dispensaries, and cultivation facilities and granting those facilities limited immunity; providing that any cannabis industry sales are subject to state, and local sales taxes, special taxes, import and export duties; and providing that the tax revenues on any cannabis goods and services shall be distributed as defined in §10; and providing regarding this Amendment that the General Assembly Legislators cannot amend or remove sections of this Amendment and can only be done so by the voters [sic] approval; establishing that Article 2. Declaration of Rights, and Article 10. Agriculture, Mining, and Manufacture of the Constitution of the State of Arkansas is [sic] amended by the addition of two new sections to read: Article 2. §30 Environment and Natural Resources Protection; and Article 10. §4 Natural Resource Cannabis Protection as defined in §5(z).

(The full text of the proposed measure was also attached. The text of the proposed measure itself, running many pages of definitions, licensing schemes, royalty arrangements, and regulatory provisions, is not reproduced here. See the linked landing page for the full record.)

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. Your submission is defective to the point that I must reject popular name, ballot title, and proposed measure as drafted.

DISCUSSION

You have removed one of the threshold problems that led to this office's rejection of your previous submissions on this topic. But your current submission is otherwise essentially indistinguishable from these previous submissions. It remains so long and complex that voters will not be able to make an intelligent choice in the limited time allowed in the voting booth. In sum, the measure remains incapable of having a ballot title that will satisfy the Court's test for ballot title sufficiency.

CONCLUSION

The Arkansas Constitution does not charge my office with any role in drafting initiated constitutional amendments or acts. My duty in reviewing submissions under section 7-9-107 is to the electorate as a whole. I cannot advise or advocate for individual sponsors. 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.

Your submission falls short of these criteria. It is defective to the point that I am unable to further review your submission pursuant to section 7-9-107(c). I must reject your entire popular name, ballot title, and proposed measure.

Sincerely,
LESLIE RUTLEDGE
Attorney General