Attorney General of Arkansas — Opinion
Opinion Delivered March 29, 1996
WINSTON BRYANT, Attorney General
The Honorable R. Gunner DeLay State Representative 2525 Rogers Avenue Fort Smith, Arkansas 72901
Dear Representative DeLay:
This letter is being issued in response to your request for certification, pursuant to A.C.A. § 7-9-107, of the following popular name and ballot title for a proposed initiated act:
AN ACT TO EXEMPT CERTAIN FOOD ITEMS FROM THE ARKANSAS GROSS RECEIPTS TAX
AN ACT TO AMEND ARKANSAS CODE 26-52-401(27) TO EXEMPT FROM THE ARKANSAS GROSS RECEIPTS TAX, OTHERWISE KNOWN AS THE ARKANSAS SALES TAX, FOOD THAT IS ELIGIBLE FOR PURCHASE UNDER THE FOOD STAMP ACT OF 1964, AS AMENDED; SPECIFYING THAT THE TAX EXEMPTION SHALL APPLY TO THE SALE OF QUALIFYING FOOD ITEMS REGARDLESS OF THE MEANS OF PURCHASE; TO OBTAIN THE PRESENT TAX STATUS OF FOOD ITEMS FOR MUNICIPAL AND COUNTY TAX PURPOSES; AND FOR OTHER PURPOSES.
The Attorney General is required, pursuant to Section 7-9-107, to approve and 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, or if the proposed popular name and ballot title are sufficiently misleading, 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. Consequently, this review has been limited to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the proposed popular name and ballot title accurately and impartially summarize the provisions of your proposed act.
The purpose of my review and certification is to insure that the popular name and ballot title honestly, intelligently, and fairly set forth the purpose of the proposed amendment. See Arkansas Women’s Political Caucus v. Riviere, 282 Ark. 463, 466, 677 S.W.2d 846 (1984). The popular name is primarily a useful legislative device. Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950). It need not contain detailed information or include exceptions which might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency. Id.
A ballot title must include an impartial summary of the proposed amendment which will give the voter a fair understanding of the issues presented. Hoban v. Hall, 229 Ark. 416, 417, 316 S.W.2d 185 (1958); Becker v. Riviere, 270 Ark. 219, 223, 226, 604 S.W.2d 555 (1980). 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.” Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938 (1994),citing Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988), Hoban v. Hall, supra, an Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936). 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 Bailey v. McCuen, supra. 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. Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992) The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring. Id. A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law. Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). It has been stated that the ballot title must be: 1) intelligible, 2) honest, and 3) impartial. Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990), citing Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).
Having analyzed your proposals under the above precepts, I hereby approve your popular name as submitted. Under those precepts, however, I hereby substitute the following ballot title for the one that you submitted, in order to apprise the voters more fully of the substance of the proposal:
AN ACT TO AMEND ARKANSAS CODE 26-52-401(27) TO EXEMPT FROM THE ARKANSAS GROSS RECEIPTS TAX, OTHERWISE KNOWN AS THE ARKANSAS SALES TAX, FOOD THAT IS ELIGIBLE FOR PURCHASE UNDER THE FOOD STAMP ACT OF 1964, AS AMENDED; SPECIFYING THAT THE TAX EXEMPTION SHALL APPLY TO THE SALE OF QUALIFYING FOOD ITEMS REGARDLESS OF THE MEANS OF PURCHASE; TO EXEMPT FROM MUNICIPAL AND COUNTY TAXES CERTAIN ITEMS PURCHASED WITH INSTRUMENTS ISSUED PURSUANT TO THE FOOD STAMP ACT OF 1964, OR PURCHASED WITH INSTRUMENTS ISSUED PURSUANT TO SECTION 17 OF THE CHILD NUTRITION ACT OF 1966, AS AMENDED, OR PURCHASED THROUGH BIDS UNDER THE SPECIAL SUPPLEMENTAL FOOD PROGRAM FOR WOMEN, INFANTS AND CHILDREN; TO PROVIDE FOR THE EXPIRATION OF THE EXEMPTION IF IT IS NO LONGER REQUIRED FOR PARTICIPATION IN THE FOOD STAMP PROGRAM AND THE SPECIAL SUPPLEMENTAL FOOD PROGRAM FOR WOMEN, INFANTS AND CHILDREN; AND TO PROVIDE FOR THE CONTINUED REQUIREMENT THAT THE DIRECTOR OF THE DEPARTMENT OF FINANCE AND ADMINISTRATION COLLECT MUNICIPAL AND COUNTY TAXES BASED ON THE ARKANSAS GROSS RECEIPTS ACT.
Pursuant to A.C.A. § 7-9-108, instructions to canvassers and signers are enclosed herewith.
WINSTON BRYANT Attorney General