How does the Arkansas Attorney General decide whether to certify the popular name and ballot title of a proposed citizens redistricting amendment?

Plain-English summary

Attorney Nate Steel submitted a proposed initiated constitutional amendment for AG certification under Ark. Code Ann. § 7-9-107. The proposal would have:

• Repealed Article 8 of the Arkansas Constitution (which placed apportionment authority in a Board of Apportionment composed of the Governor, Secretary of State, and Attorney General).
• Repealed Ark. Code Ann. §§ 7-2-101 through 7-2-105.
• Removed congressional districting authority from the General Assembly.
• Created a seven-member Citizens' Redistricting Commission, with appointments split among legislative leaders (Speaker, President Pro Tempore, Speaker Pro Tempore, Majority Leaders, Minority Leaders).
• Required decennial redistricting of 100 House districts and 35 Senate districts based on equal population, with population variance and other detailed criteria.

Attorney General Leslie Rutledge certified the popular name and ballot title as submitted. Certification under § 7-9-107 is about form, not merit; the AG specifically reminded the sponsor: "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."

The AG added two cautionary notes:

1. Length and complexity. Long, complex measures correlate with successful ballot-title challenges. Any ambiguity in the text could lead to a successful court challenge.
2. Competing identical measures. Two other essentially identical redistricting amendments had already been certified (Ops. Att'y Gen. 2018-135 and 2018-086). The AG had no statutory authority to refuse to review competing measures, but flagged the voter-confusion risk.

The AG also enclosed instructions to canvassers and signers under § 7-9-108, including the petition-fraud warnings under § 5-55-601(b).

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.

The procedural rules around ballot title certification and signature gathering have been revised by the General Assembly multiple times since 2019. Whether this specific proposal made it onto a ballot, and whether the Arkansas Supreme Court ultimately ruled on its sufficiency, are matters for separate research. Anyone preparing or analyzing a current initiated measure should pull current text of Title 7 and look for newer Arkansas Supreme Court ballot-title decisions.

Historical context

What the AG's certification job actually is

Section 7-9-107 gives the AG three options when reviewing a proposed initiative or referendum:

1. Certify the popular name and ballot title.
2. Substitute and certify, if practicable.
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 review is to ensure the popular name and ballot title "honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act." Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846, 848 (1984). Voters must be able to derive a fair understanding from the ballot title alone. Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).

Section 7-9-107 does not authorize the AG to make legal determinations on the merits or to assess whether the measure will accomplish its stated objective. The AG also will not require sponsors to acknowledge possible constitutional infirmities unless the measure is "clearly contrary to law." Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

Guidelines from Arkansas Supreme Court precedent (as of 2019)

The opinion catalogued the case-law standards:

• Popular name is "primarily a useful legislative device." Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). It need not contain detailed information but must not be misleading or carry "partisan coloring." Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). Popular name is considered together with the ballot title in determining sufficiency. May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
• Ballot title must include an impartial summary that gives the voter a "fair understanding" of the issues. Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160; Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). It must "adequately inform[]" voters so they can make a "reasoned decision in the voting booth." Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154. Failure to "honestly and accurately reflect what is contained in the proposed [act or] Amendment" can lead to a finding that an "omission is significant." Lange.
• Technical terms. Use of "technical and not readily understood" terms without definition can render a ballot title insufficient. Wilson.
• Essential facts. If information omitted is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
• Brevity. A ballot title must be brief and concise (§ 7-9-107(b)) so voters do not run afoul of the five-minute voting-booth limit (§ 7-5-309). Bailey.
• Misleading tendency and "partisan coloring." The title must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." Bailey. "Partisan coloring" means language that "creates a fatally misleading tendency" (Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that "gives the voter only the impression that the proponents of the proposed amendment wish to convey." Christian Civic Action Comm.
• Internal consistency between text and title. A ballot title cannot be approved if the text of the measure itself contributes to confusion or disconnect. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). When the text is unclear or ambiguous, the AG cannot perform her statutory duty without (1) clarification or removal of ambiguities and (2) conformance of the popular name and ballot title.

What the proposal would have done

The amendment was structured around three big moves:

Move 1: Repeal Article 8. Article 8 of the Arkansas Constitution had placed apportionment power in a Board of Apportionment composed of the Governor, Secretary of State, and Attorney General. The proposal would repeal Article 8 entirely.

Move 2: Repeal §§ 7-2-101 through 7-2-105. The matching statutes implementing Board of Apportionment activity would also be repealed.

Move 3: Create a Citizens' Redistricting Commission. Seven members, all Arkansas citizens, appointed by legislative leaders in this order: Speaker (chair), President Pro Tempore, Speaker Pro Tempore, Senate Majority Leader, House Majority Leader, Senate Minority Leader, House Minority Leader. The Commission would handle decennial congressional and legislative redistricting under detailed population, contiguity, compactness, and community-of-interest criteria.

The Commission also got rules about transparency, public hearings in each congressional district, restrictions on use of incumbents' addresses or political-affiliation data, and mechanisms for replacement and forfeiture if appointing officials missed the appointment window.

What the AG flagged for the sponsor (as of 2019)

Length / complexity risk. The proposal was multi-page and procedurally dense. The AG warned that "experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot title challenge."

Competing measures. The AG's office had already certified the popular names and ballot titles of "two separate and independently proposed constitutional amendments that are, in most substantive respects, identical to your proposed measure." See Ops. Att'y Gen. 2018-135 and 2018-086. The statute does not let the AG refuse review of competing measures, but the AG flagged the voter-confusion risk and noted that prior Op. Att'y Gen. 2017-010 had expressed "grave concerns about the potential for certifying two or more petitions that are identical in all substantive respects."

Petition fraud warnings. Section 5-55-601(b) defines petition fraud (a Class A misdemeanor punishable by a fine of up to $2,500 and imprisonment up to one year), and the AG enclosed canvasser/signer instructions reciting the prohibited acts.

Common questions

Q: What does AG certification of a ballot title actually mean?
A: Per § 7-9-107, certification is the AG's determination that the popular name and ballot title are not misleading. It is not an endorsement of the measure's policy merits, and it does not predict whether the measure would survive a court challenge.

Q: Can the AG block a measure she dislikes by refusing to certify?
A: Only if the popular name or ballot title is presented in a misleading manner. The merits of the measure are not part of the analysis. The AG can also substitute a corrected popular name and ballot title if practicable.

Q: What happens if the ballot title is later found insufficient by the Arkansas Supreme Court?
A: The measure can be struck from the ballot. Sponsors face a real risk that long, complex, or ambiguous measures will fail post-certification challenges, even after AG approval.

Q: Can two identical or near-identical measures both be on the ballot?
A: The AG has no statutory authority to refuse review based on duplication. But duplication creates voter confusion at the booth, and competing identical measures can each draw votes that defeat both. The AG flagged this concern.

Q: What is "partisan coloring" in a ballot title?
A: Language that gives the voter only the impression the proponents want to convey, rather than an impartial summary. The Arkansas Supreme Court treats partisan coloring as a fatal defect in a ballot title.

Background and statutory framework

The Arkansas Constitution at Article 5, section 1 reserves the initiative and referendum powers to the people. Initiated constitutional amendments require petitions signed by 10% of legal voters; initiated acts require 8%; referenda require 6%. Ark. Code Ann. § 7-9-107 sets up the AG certification process. Section 7-9-108 requires canvasser/signer instructions on every petition. Section 5-55-601(b) criminalizes petition fraud.

The AG's review under § 7-9-107 is limited to popular name and ballot title sufficiency, not the merits of the measure. The standards are largely judge-made, developed by the Arkansas Supreme Court in a long line of ballot-title cases that the opinion catalogues.

Citations and references

Constitutional and statutory provisions:

• Ark. Code Ann. § 7-9-107 (AG certification authority)
• Ark. Code Ann. § 7-9-107(b) (brevity requirement)
• Ark. Code Ann. § 7-9-107(c) (rejection authority)
• Ark. Code Ann. § 7-9-108 (canvasser instructions)
• Ark. Code Ann. § 7-5-309 (five-minute voting booth limit)
• Ark. Code Ann. § 5-55-601(b) (petition fraud, Class A misdemeanor)
• Ark. Code Ann. §§ 7-2-101 to 7-2-105 (Board of Apportionment statutes; would be repealed)
• Ark. Const. art. 8 (Board of Apportionment; would be repealed)

Cases:

• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984), Ark. Supreme Court, fairness standard
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980), Ark. Supreme Court, ballot title alone test
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000), Ark. Supreme Court, "clearly contrary to law"
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), Ark. Supreme Court, AG not required to flag constitutional issues
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992), Ark. Supreme Court, AG and constitutional concerns
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950), Ark. Supreme Court, popular name as legislative device
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976), Ark. Supreme Court, no partisan coloring
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958), Ark. Supreme Court, popular name standards
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004), Ark. Supreme Court, popular name and ballot title together
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160, Ark. Supreme Court, fair understanding from ballot title
• Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994), Ark. Supreme Court, intelligible scope
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, Ark. Supreme Court, "adequately inform" standard
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), Ark. Supreme Court, essential facts; partisan coloring
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990), Ark. Supreme Court, honest and impartial title
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996), Ark. Supreme Court, partisan coloring as misleading tendency
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), Ark. Supreme Court, internal consistency between text and title

Related AG opinions:

• Op. Att'y Gen. 2018-135 (similar competing measure)
• Op. Att'y Gen. 2018-086 (similar competing measure)
• Op. Att'y Gen. 2017-010 (concerns about identical petitions)
• Op. Att'y Gen. 2017-032 (AG cannot redraft proposed measures)

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2019-014
February 27, 2019

Nate Steel, Attorney at Law
Capitol Law Group
400 West Capitol Avenue, Suite 2910
Little Rock, AR 72201

Dear Mr. Steel:

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, 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 of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name: An Amendment to Create a Citizens Redistricting Commission for Decennial Redistricting of Arkansas Congressional and State Legislative Districts.

Ballot Title: An amendment to establish a citizens commission for the purposes of decennial redistricting of congressional and state legislative districts (the "Commission") to consist of seven (7) members, one appointed by [each of seven legislative leaders]; repealing Article 8 of the Arkansas Constitution establishing a Board of Apportionment comprised of the Governor, the Secretary of State, and the Attorney General; repealing Arkansas Code Annotated Section 7-2-101 through Arkansas Code Annotated Section 7-2-105; removing from the General Assembly the authority to establish decennial districts for each of its members of the United States Congress and placing that authority with the citizens commission formed hereunder; requiring the Commission to reapportion the house of representatives and the senate immediately following the official reporting of each decennial census of the United States, with reapportionment based on the population within each house and senate district as reported by the official decennial census of the United States; requiring the Commission to establish 100 house districts, with each house district to elect one member of the house of representatives; requiring the Redistricting Commission to establish 35 senate districts, with each senate district to elect one member of the senate; requiring that appointments to the Commission be made between January 1 and February 1 of each calendar year ending in one; and requiring that the Speaker of the Arkansas House of Representatives selects the chairman of the Commission.

GUIDELINES

[Catalogue of Arkansas Supreme Court ballot-title precedent, including Pafford, Chaney, Moore, May, Wilson, Christian Civic Action Comm., Lange, Bailey, Becker, Crochet, and Roberts.]

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 court challenge.

Please also be aware that this office has already certified the popular name and ballot title of what I understand to be two separate and independently proposed constitutional amendments that are, in most substantive respects, identical to your proposed measure. See Ops. Att'y Gen. 2018-135, 2018-086. 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, especially at the voting booth. See Op. Att'y Gen. 2017-010.

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: Instructions to Canvassers and Signers, including the petition-fraud provisions of Ark. Code Ann. § 5-55-601(b).]