Opinion No. 2013-131

October 29, 2013

Lieutenant Colonel Marjorie LeClair, USA (Ret.)
3362 Burnt Ridge Road
Shirley, Arkansas 72153-8329

Dear Lt. Col. LeClair:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2013), of the following popular name and ballot title for a proposed constitutional amendment. You have previously submitted similar measures, which this office rejected due to ambiguities in the texts of the proposed measures. See Op. Att’y Gen. Nos. 2013-117, 2013-109, 2013-094 and 2013-061. You have made changes in the text of your proposal since your last submission and have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

Ban Prohibition of Cannabis


Ballot Title

Amend the Constitution of Arkansas to repeal all laws pertaining to production, distribution and sale of cannabis and products derived from the cannabis plant. The General Assembly shall pass no law prohibiting or limiting the production, distribution or sale of cannabis or derivatives thereof. This amendment does not change any federal laws that may exist regarding the cannabis plant.

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition. Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal. This Office has been given no authority to consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the 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,”[1] this office will not require that a measure’s proponents acknowledge in the ballot title any possible constitutional infirmities. As part of my review, however, I may address constitutional concerns for consideration by the measure’s proponents.

Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.[2]

The popular name is primarily a useful legislative device.[3] 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.[4] The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.[5]

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.[6] According to the court, if information omitted from the ballot title is an “essential fact which would give the voter serious ground for reflection, it must be disclosed.”[7] At the same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit in voting booths when other voters are waiting in line.[8] The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.[9] The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring.[10] The ballot title must be honest and impartial,[11] and it must convey an intelligible idea of the scope and significance of a proposed change in the law.[12]

Furthermore, the Court has confirmed that a proposed amendment cannot be approved if “[t]he text of the proposed amendment itself contribute[s] to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure.”[13] 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.”[14] Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without clarification of the ambiguities.

Having analyzed your proposed amendment, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed popular name and ballot title due to ambiguities in the text of your proposed measure. A number of additions or changes to your ballot title are, in my view, necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

The text of your measure provides in its entirety:

A tax structure exists that requires the purveyor to collect a tax from the consumer at the point of sale.

Cannabis and cannabis products will be taxed in compliance with the existing tax structure as is presently done on imported cannabis products.

Federal law lists all cannabis as a Schedule I drug, making it a controlled substance, however permits to grow cannabis as a farm commodity can be requested though the cost of such a permit is prohibitive. Any other production, distribution or sale subjects a person to federal prosecution at this time.

As a general matter, the text of your measure is ambiguous in that it appears merely to assume, without ever declaring outright, that current laws prohibiting the sale of cannabis are repealed. You refer to a repeal of such laws in your ballot title but fail altogether to effect this repeal in your measure itself. As I pointed out in Opinion No. 2013-109, in which I rejected one of your previous submissions for the same reason: “The text of a measure . . . actually sets forth and effects changes in the law.” Without resolution of this problem, I cannot inform the voter in a ballot title of the effect on current law adopting your measure would have.

The first sentence of your text is ambiguous in that it mistakenly appears to assume that existing law is uniform regarding the taxation of products sold to consumers. As I have previously informed you, not all consumer products are subject to uniform, if any, taxation upon sale. For instance, prescription medications are generally exempt from such taxation. It is therefore misleading to suggest categorically that “[a] tax structure exists that requires the purveyor to collect a tax. . . .” Without clarification, I am consequently unable to summarize this provision in a ballot title.

The second sentence of your text is ambiguous in directing that cannabis be taxed in accordance with what you term “the existing tax structure as is presently done on imported cannabis products.” The quoted language is confusing in that it is unclear what products might fall within the category “imported cannabis products.” This phrase is further confusing in that it implies that this category of products is subject to some unique treatment under current Arkansas law that you intend to extend to cannabis used in other undefined ways. To the extent that imported products containing cannabis in the form of, say, hemp are indeed marketed in Arkansas, these products are not taxed, as your measure suggests, in a manner different from any other retail sales item. I am unable, in short, to determine what it means to expressly invoke the taxation of “imported cannabis products” in particular as a model for taxing domestic cannabis. I consequently cannot summarize the legal effects of this provision in a ballot title.

Several of the problems noted above closely track ones I have identified in response to your previous submissions. In this regard, I must note that this office lacks the resources to repeatedly review submissions whose shortcomings have previously been pointed out to a measure’s sponsor. Again, I must strongly advise you, before submitting any revised version of your proposed amendment, to seek the advice of counsel and a trained editor fully familiar with my responses to your previous submissions. Specifically with respect to your need for editorial assistance, I will note that both the text of your measure and your ballot title again contain grammatical errors that have no place in a proposal to amend the Arkansas Constitution.

I cannot begin to certify a ballot title for your proposed amendment in the face of the ambiguities noted above. You must remedy these confusing and ambiguous points before I can perform my statutory duty.

My office, in the certification of ballot titles and popular names, does not concern itself with the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in A.C.A. § 7-9-107 and my duty is to the electorate. I am not your counsel in this matter and cannot advise you as to the substance of your proposal.

My statutory duty, under these circumstances, is to reject your proposed ballot title, stating my reasons therefor, and to instruct you to “redesign” the proposed measure and ballot title.[15] You may, after clarification of the matters discussed above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at your convenience. I anticipate, as noted above, that some changes or additions to your submitted popular name and ballot title may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.

Sincerely,



Dustin McDaniel
Attorney General

DM/cyh

Enclosure


[1]See 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).
[2]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
[3]Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
[4]E.g., 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).
[5]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[6]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
[7]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[8]Id. at 288, 884 S.W.2d at 944.
[9]Id. 293, 884 S.W.2d at 946–47.
[10]Id. at 284, 884 S.W.2d at 942.
[11]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[12]Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted).
[13]Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000).
[14]Id.
[15] See A.C.A. § 7-9-107(c).