Ark. Code Ann. § 7-9-107

Research References

Ark. L. Rev.

Jonathan L. Marshfield, Improving Amendment, 69 Ark. L. Rev. 477 (2016).

Case Notes

Constitutionality.

This section in no way curtails the operation of Ark. Const., Amend. 7, which amended Ark. Const., Art. 5, § 1, but is in aid of that amendment and insures the giving to the signer of the petition as much information as is possible and practicable with regard to what he is being asked to sign. Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956).

Former subdivisions (e)(B)(1)(i) and (ii) were unconstitutional because they purported permit this court to review a decision of the Secretary of State with respect to the ballot title portion of a petition, and the only authority given this court by Ark. Const. Amend. 7, which amended Ark. Const., Art. 5, § 1, is the authority to review the Secretary of State's certification of a “petition” which includes both the ballot title and the signatures. Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), overruled in part, Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251 (2000).

Purpose.

Subsection (b) of this section requires that certified ballot titles be brief and concise; otherwise, voters could well run afoul of former § 7-5-522's five-minute limit in voting booths when prospective voters are waiting in line. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994).

Applicability.

This section relating to ballot titles applies to initiated proposals only. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976).

Action by Attorney General.

Action of the Attorney General in changing phrases in the popular name and ballot title of a proposed initiated act, where phrases, as originally submitted, amounted to partisan coloring and were clearly calculated to influence voters to support the proposed initiated act, was appropriate. Jackson v. Clark, 288 Ark. 192, 703 S.W.2d 454, 730 S.W.2d 454 (1986).

Ballot question committee's request to compel the Attorney General to certify an amendment to the Arkansas Constitution was moot as the Attorney General's certification would have no practical legal effect on the parties because, under the 2019 amendment of this section, sponsors of initiated amendments were no longer required to obtain the Attorney General's certification of popular names and ballot titles before circulation of an initiative petition. Ark. True Grass v. Rutledge, 2019 Ark. 165 (2019).

Changes to Text.

A ballot title need not be the same version submitted to the Attorney General under this section and § 7-9-106(a) where the differences are immaterial, such as deletion of an unnumbered, parenthetical aside in the nature of an editorial comment which does not legislate or affect the proposed measure one way or the other. Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512 (1992).

Contents.

The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law. It must be free from misleading tendency and contain no partisan coloring. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931); Shepard v. McDonald, 189 Ark. 29, 70 S.W.2d 566 (1934); Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248 (1934); Blocker v. Sewell, 189 Ark. 924, 75 S.W.2d 658 (1934); Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936); Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938); Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956); Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988).

When the general subject of an initiated act or constitutional amendment is disclosed by the title thereof, no detailed matter need be mentioned. Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938).

It was not necessary that the ballot title to a proposed constitutional amendment providing for the refunding of the state's bonded indebtedness should disclose the creation of a new office therein provided for. Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938).

A ballot title for a proposed constitutional amendment is sufficient if it identifies the proposed act and fairly recites the general purpose, and it need not be so elaborate as to set forth the details of the act. However, a popular name and a ballot title must be free from catch phrases and slogans which tend to mislead and to color the merit of a proposal on one side or the other. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980).

It is difficult to prepare a perfect ballot title; it is sufficient if it informs the voters with such clarity that they can cast their ballot with a fair understanding of the issue presented. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988).

The ballot title must accurately reflect the general purposes and fundamental provisions of the proposed initiative, so that an elector does not vote for a proposal based on its description in the ballot title, when, in fact, the vote is for a position he might oppose. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

The ballot title need not recite all of the details of the proposal; however, if the information would give the elector “serious ground for reflection” it is not a mere detail and must be disclosed. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

The Supreme Court has declared popular names invalid because they were misleading or used biased language. However, because so little is required of a popular name, the court has never held a proposed measure invalid solely because of an incomplete description of the act by the popular name. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

—Sufficiency.

Ballot title held to be defective. Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936).

Ballot title held to be sufficient. McDonald v. Bryant, 238 Ark. 338, 381 S.W.2d 736 (1964); Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Jackson v. Clark, 288 Ark. 192, 703 S.W.2d 454, 730 S.W.2d 454 (1986); Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988); Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988); Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512 (1992).

Popular name held not to be misleading. McDonald v. Bryant, 238 Ark. 338, 381 S.W.2d 736 (1964); Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976).

Popular name held to be sufficient. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988); Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

It is not necessary to spell out every aspect of an initiative in the ballot title. Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512 (1992).

Effective Date of 2019 Amendment.

Emergency clause of Acts 2019, No. 376 was defective where the stated basis was “to avoid confusion in petition circulation”; Act 376 added additional requirements for getting a referendum on the election ballot, and the prospect of affording those who seek to file a ballot petition additional notice of new requirements for that petition, especially when the people would not be voting on any such initiatives or referenda for at least another 15 months, did not amount to an emergency under Ark. Const., Art. 5, § 1. Safe Surgery Ark. v. Thurston, 2019 Ark. 403, 591 S.W.3d 293 (2019) (sub. op.).

As the emergency clause of Acts 2019, No. 376 was ineffective and Act 376’s new requirements were not in effect at the time petitioner filed its proposed referendum and supporting signatures, mandamus was granted directing the Secretary of State to address petitioner's referendum filings (seeking a referendum on Acts 2019, No. 579) under the pre-Act 376 legal framework for initiatives and referenda. Safe Surgery Ark. v. Thurston, 2019 Ark. 403, 591 S.W.3d 293 (2019) (sub. op.).

Judicial Review.

It is the duty of the Supreme Court in reviewing initiated proposed constitutional amendments to see that ballot titles and popular names are (1) intelligible, (2) honest, and (3) impartial. Ark. Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984); Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988); Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

Whether the Attorney General has correctly determined the sufficiency of the popular name and ballot title is a matter of law to be decided by the Supreme Court. It is not at all comparable to a finding of fact by a trial court, which the court will set aside only if it is clearly erroneous. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

In determining the sufficiency of a ballot title, the Supreme Court will give a liberal construction and interpretation of the requirements of Ark. Const. Amend. 7, which amended Ark. Const., Art. 5, § 1, in order to secure its purposes to reserve to the people the right to adopt, reject, approve, or disapprove legislation. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

Presumptions.

There is a clear implication that the general assembly intended that presumptions as to sufficiency of a ballot title approved by the Attorney General favor the sponsors of a referendum petition inasmuch as this section provides specifically for relief to them, but not to opponents, by petition to the Supreme Court. Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968).

Purposes of Ballot Title or Popular Name.

The popular name actually serves the constitutional requirement of submission in a manner enabling the voters to vote on proposed amendments separately and it is a device useful to facilitate voter discussion prior to election, and it need not contain detailed information or include exceptions which might be required of a ballot title. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976).

The purpose of a ballot title is not to interpret the proposed amendment, but rather to present an impartial and accurate summation of its provisions. Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976).

The Supreme Court will make a more detailed examination and analysis of the proposed ballot title than it does the popular name. The popular name is designed primarily to identify the proposal, while the ballot title is designed to adequately summarize the provisions of the proposal and be complete enough to convey to the voter an intelligible idea of the scope and import of the proposal. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988).

The popular name is designed to make it easy for voters to discuss the proposal prior to the election by giving them a label to identify it. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

Time of Approval.

It was the intention of the framers of this section that the Attorney General should pass on the sufficiency of the ballot title and the popular name before the petition is circulated and petition for referendum could not be amended by getting the Attorney General's approval of popular name and ballot title after the circulation of the petition. Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956).

Where popular name and ballot title of act upon which referendum was proposed were not submitted to Attorney General at the time that petition for referendum was submitted and approved, the Secretary of State properly refused to certify the petition to election officials. Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956).

Cited: Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950); Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986).