Opinion No. 2017-029

March 20, 2017

Barry Emigh, Sponsor
1104 West Seventh Street
Hot Springs, AR 71913-4225

Dear Mr. Emigh:

I am writing in response to your request for certification, pursuant to Ark. Code Ann. � 7-9-107 (Supp. 2015), 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 do not, consider the merits of the measure when making my determination to certify or reject a popular name and ballot title.

The Attorney General is required, pursuant to Ark. Code Ann. � 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, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General may reject the entire petition.

Section 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.[2] 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 proposal.

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.[3]

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

An Amendment to the Arkansas Constitution
Legalizing Gambling to the Fairplay Holdings Ballot Question Committee (BQC) Member(s) with the Sale, Service, and Complimentary Service of Alcoholic Beverages as a Local Ballot Measure

Ballot Title

An amendment to the Arkansas Constitution. Each person, or person not an individual, named as a director, officer, and or member with the Fairplay Holdings Ballot Question Committee in qualifying, and passing, this amendment shall be authorized to initiate a local ballot measure to license �gambling�, apply for an original gambling license, and if eligible after a criminal investigation by the Department of the Arkansas State Police to operate �gambling�. The authority, and name, of the Fairplay Holdings BQC member(s) shall be transferable. Whenever three (3%) percent of the qualified electors based upon the total number of electors voting in the preceeding [sic] election for mayor in any city with a population greater than twenty eight [sic] thousand (28,000) people, and or three (3%) percent of the qualified electors based upon the total number of electors that voted for county judge in the preceeding [sic] election, in those cities, and counties, where the sale, and service, of alcoholic beverages is licensed by the Alcoholic Beverage Control Board shall file a petition with the city, or county, clerk within their respective jurisdiction asking that, �not more than two (2) businesses be licensed to operate gambling with the sale, service, and complimentary service of alcoholic beverages during the time gambling is operated within the structure used to operate gambling�, the measure shall be submitted to the qualified electors at the general election within that jurisdiction. Only a Fairplay Holdings BQC member shall file, and sponsor, a petition on a local ballot measure for this purpose. There shall not be more than two (2) businesses to be licensed to operate �gambling� on a petition. The petition may be brought before the qualified electors time, and time, again at each general election allowing more than two (2) person(s), or businesses, to operate �gambling� within the same jurisdiction at the same time. Immediately upon, but not more than one hundred and sixty (160) days after, the conclusion of a favorable ballot measure the Arkansas Racing Commission shall accept only the application(s) from the BQC member(s) to issue those gambling licenses. One hundred and sixty (160) days after conclusion of a favorable ballot result the Arkansas Racing Commission shall accept the applications from any person(s), or businesses, to issue any available gambling license not issued at that time. The gambling license shall be transferable. The provisions of this amendment shall not effect [sic] Oaklawn Race Track in Garland County nor [sic] Southland Race Park in Crittenden County. The Alcoholic Beverage Control Board shall be required to license a gambling operator to sell, serve, and serve complimentary alcoholic beverages during the time �gambling� is operated within the structure used to operate �gambling�. The General Assembly by a two third (2/3) vote of all its members in each House shall be empowered to increase, or decrease, the gaming tax on the �gross income� from �gambling� by not more than half of one (.5%) percent, and or fee as provided in this amendment by not more than three (3%) percent, during any one fiscal session of the General Assembly. The General Assembly shall be empowered to tax any amount of winnings won by any person as taxable income. The Department of Finance and Administration shall be required to do as follows: collect a gaming tax of twenty one [sic] (21%) percent from the �gross income� from �gambling�; collect a permit fee of fifty ($50) dollars every four months on each slot machine; and collect a permit fee of sixty ($60) dollars every four months on each game table; shall pay the city where �gambling� is operated one third (1/3) of the gaming tax, one third (1/3) of the slot machine and game table permit fee; pay the county where �gambling� is operated in a city within that county one third (1/3) of the gaming tax, one third (1/3) of the slot machine and game table permit fee; and pay the county where �gambling� is operated solely within a county half (1/2) of the gaming tax, half (1/2) of the slot machine and game table permit fee. There shall be no other tax on �gambling� other than as personal income, no other tax on any winnings, no other fee on any equipment used to operate �gambling�, and no tax on any complimentary alcoholic, or non alcoholic [sic], beverages. The Arkansas Racing Commission shall collect an annual gambling license fee of seventy two [sic] thousand ($72,000) dollars for each gambling license, shall be authorized to regulate gambling, and shall issue without delay any gambling license not issued, revoked, or relinquished. The Department of the Arkansas State Police shall do a criminal investigation on any person(s), business, person(s) connected to a business, and employed by a person(s), or business, prior to issuing, or transferring, a gambling license with a fee of fifty five hundred [sic] ($5,500) dollars. The Alcoholic Beverage Control Board shall collect an annual alcoholic beverage control license fee of eighteen thousand ($18,000. [sic]) dollars for each alcoholic beverage control license. Upon passing this amendment the voters acknowledge the risk of alcohol and gambling addiction. As used in this amendment: �gambling� means any pay to play game of chance with a winner, and a loser, to include cards, dice, roulette and slot machines; �gross income� means the amount of money earned after any, and all, winnings are paid as a loss by the gambling operator. The provisions of this amendment shall be in lieu of Article 5 of the Arkansas Constitution. The provisions of this amendment are severable, and if any should be held invalid, the remainder shall stand. The provisions of this amendment are self executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. All laws and constitutional provisions which conflict with this amendment are repealed to the extent they conflict with this amendment. The provisions of this amendment should be interpreted liberally with broad scope. The provisions of this amendment shall take effect on January 1st, 2019.

RESPONSE

The popular name is primarily a useful legislative device.[4] 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.[5] The popular name is to be considered together with the ballot title in determining the ballot title�s sufficiency.[6]

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.[7] 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.�[8] A ballot title�s failure to �honestly and accurately reflect what is contained in the proposed [act or] Amendment� may lead the Court to conclude that the �omission is significant.�[9] The Court has also disapproved the use of terms that are �technical and not readily understood by voters.�[10] Without a definition of such terms in the ballot title, the title may be deemed insufficient.[11]
Additionally, if information omitted from the ballot title is an �essential fact which would give the voter serious ground for reflection, it must be disclosed.�[12] At the same time, however, a ballot title must be brief and concise;[13] otherwise voters could run afoul of Ark. Code Ann. � 7-5-309�s five-minute limit in voting booths when other voters are waiting in line.[14] 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.[15] The title, however, must be �free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring.�[16] The ballot title must be honest and impartial,[17] and it must convey an intelligible idea of the scope and significance of a proposed change in the law.[18]

Furthermore, the Court has confirmed that a proposed measure cannot be approved if the text of the proposal itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure.[19] 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.�[20] 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 (1) clarification or removal of the ambiguities in the proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal.

It is my opinion, based on the above precepts, that a number of additions or changes to your ballot title are 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 in the text of the measure itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. � 7-9-107(b). I highlight below the more troubling aspects of your submission.

While I note that you have shortened your most recent ballot title from approximately 3,000 words in your previous submission to 990 words, I must refer you to what I wrote in my opinion regarding your previous submission.[21] In that opinion, I mentioned that the longest ballot title the Arkansas Supreme Court has ever approved contained 994 words. But that ballot title concerned a proposed initiated act regarding an issue that the Court noted had already received widely publicized attention, and that a 994-word ballot title �staked out the outer limits for length and complexity.�[22] In my opinion, the Court likely will not be so generous to a 990-word ballot title for a highly complex proposal to significantly amend the State�s constitution, and one that has heretofore, to my knowledge, garnered little, if any, public attention.

In my most recent opinion to you, I expressed my concerns regarding the overarching problem of trying to craft a ballot title that would be acceptable to the Court for your complicated proposal:

Furthermore, and without commenting on the merits of your idea, I must conclude that your proposed measure as currently submitted is so lengthy and complex as to render it practically impossible to draft a ballot title that would meet the Court�s standards for voter understanding. In my opinion, any ballot title for your proposal in its present condition would necessarily be misleading to the voters, as per the Court�s standards, by virtue of [your] measure�s length and complexity.[23]

I stand by this conclusion and find it equally applicable to your current submission. I stressed to you then, and strongly reiterate here, that any revision of your proposal must be seriously undertaken with a studied effort to reduce the length and complexity of the constitutional amendment you are proposing so that a legally sufficient ballot title may be crafted.

CONCLUSION

The problems noted above are not necessarily all the problems contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional issues may come to light on review of any revisions of your proposal.

My office, in the certification of ballot titles and popular names, does not address 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 Ark. Code Ann. � 7-9-107, and my duty is to the electorate. Again, I must urge you, as I have in my previous opinions to you, to seek the advice or assistance of someone experienced in drafting legislation, editing legal documents, or both.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title.[24]

Sincerely,

Leslie Rutledge
Attorney General

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]As part of my review, however, I may address constitutional concerns for consideration by the measure�s proponents.
[3]See Arkansas Women�s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
[4]Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
[5]See, 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). For a better understanding of the term �partisan coloring,� see note 16 infra.
[6]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[7]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
[8]Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
[9]Id. at *9, 500 S.W.3d at 159.
[10]Wilson v. Martin, 2016 Ark. 334, *9, 500 S.W.3d 160, 167.
[11]Id., 500 S.W.3d at 167.
[12]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[13]See Ark. Code Ann. � 7-9-107(b).
[14]Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
[15]Id. at 293, 844 S.W.2d at 946-47.
[16]Id. at 284, 884 S.W.2d at 942. Language �tinged with partisan coloring� has been identified by the Arkansas Supreme Court as 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 of the activity represented by the words.� (Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)).
[17]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[18]Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted).
[19]Cf. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
[20]Id.
[21]Op. Att�y Gen. 2017-016 at 12-13.
[22]Id. at note 24 (and accompanying text) (quoting Walker v. Priest, 342 Ark. 410, 419, 29 S.W.3d 657, 660 (2000)).
[23]Id. at 13.
[24]Ark. Code Ann. � 7-9-107(c).