Mr. Barry L. Emigh 1104 7th Street Hot Springs, AR 71913-4225
Dear Mr. Emigh:
This is in response to your request for certification, pursuant to A.C.A. § 7-9-107, of a popular name and ballot title for a proposed constitutional amendment. You have previously submitted various similar measures, some of which this office rejected due to ambiguities in the text of your proposed amendments. See Ops. Att'y Gen. Nos. 2003-295, 2003-275, 2003-258, 2003-245, 2003-232, 2003-204, 2003-169, 2003-026, 2003-008, 2002-346, 2002-335, 2002-325, 2002-308, 2002-293, 2002-272, 2002-262, 2002-242, 2002-227, 2002-208, 2002-118, 2002-102, 2002-077, 2002-042, 2002-026, 2002-001, 2001-380, 2001-358, 2001-341, 2001-173, 2001-110, 2001-095 and 2001-074. This office has revised and certified popular names and ballot titles for four similar measures, as evidenced by Ops. Att'y. Gen. Nos. 2003-054; 2002-140; 2001-196; and 2001-129. You have since made additional changes to your measure and have submitted a revised popular name and ballot title for my certification. Your proposed popular name and ballot title state:
Popular Name
AN AMENDMENT PERMITTING THE OPERATION OF BINGO, RAFFLES, STATE — OPERATED LOTTERIES AND GAMBLING
Ballot Title
AN AMENDMENT TO THE ARKANSAS CONSTITUTION PERMITTING NON-PROFIT ORGANIZATIONS INCORPORATED IN THE STATE TO OPERATE BINGO AND RAFFLES; EMPOWERING THE GENERAL ASSEMBLY WITH THE DISCRETION TO CREATE A STATE OPERATED LOTTERY OR LOTTERIES WITH THE STATE-WIDE SALE OF LOTTERY TICKETS TO INCLUDE THE STATE'S OPERATION OF LOTTERIES IN COOPERATION WITH OTHER STATES AND LOTTERIES OPERATED IN COMBINATION WITH OTHER STATES WHICH CHANGES THE LOTTERY PROHIBITION CONTAINED IN ARKANSAS CONSTITUTION ARTICLE 19 SECTION 14; 120 DAYS AFTER PASSAGE OF THIS AMENDMENT ANY BUSINESS PERMITTED TO SELL ALCOHOLIC BEVERAGES FOR ON-PREMISE CONSUMPTION SHALL BE PERMITTED TO OPERATE GAMBLING DURING THE PERMITTED HOURS OF ALCOHOLIC BEVERAGE SALES, BUT EXCLUDES BUSINESSES PERMITTED TO SELL ONLY BEER AND/OR WINE; EMPOWERING THE GENERAL ASSEMBLY, UNLESS PROVIDED OTHERWISE BY THIS AMENDMENT, TO REGULATE, LICENSE AND TAX BINGO, RAFFLES, LOTTERIES AND GAMBLING; PROVIDING FOR THE LEGAL SHIPMENT OF GAMBLING DEVICES; DEFINING "BINGO" AS THE RISKING OF MONEY ON A GAME PLAYED WITH NUMBERED CARDS CORRESPONDING TO NUMBERED BALLS DRAWN AT RANDOM TO WIN A PRIZE OR MONEY; DEFINING" RAFFLE" AS THE RISKING OF MONEY FOR THE DISTRIBUTION OF A PRIZE AMONG PERSONS WHO HAVE PAID FOR A CHANCE TO OBTAIN A PRIZE BUT EXCLUDING MONEY AS A PRIZE; DEFINING" LOTTERY" AS THE TYPICAL FORM OF A LOTTERY CHARACTERIZED BY THE ARKANSAS SUPREME COURT WHICH INVOLVES THE SALE OF A LARGE NUMBER OF CHANCES RELATIVE TO THE SELECTION OF A SMALL NUMBER OF WINNERS BY A DRAWING DETERMINED BY CHANCE ALONE; DEFINING "GAMBLING" AS THE RISKING OF MONEY BETWEEN PERSONS WHERE ONE IS LOSER AND OTHER GAINER WITH GAMES OF CHANCE, SKILL AND ANY COMBINATION THEREOF, BUT EXCLUDES THE OPERATION OF A LOTTERY, BINGO AND RAFFLES; DEFINING "ALCOHOLIC BEVERAGES" AS ALL INTOXICATING LIQUORS OF ANY SORT OTHER THAN BEER AND/OR WINE AS DEFINED AND REGULATED IN ARKANSAS CODE 3-5-301 THRU 3-5-307 AND 3-9-301 ET SEQ; THE PROVISIONS OF THIS AMENDMENT SHALL TAKE EFFECT IMMEDIATELY UPON PASSAGE OF THIS AMENDMENT EXCEPT AS OTHERWISE PROVIDED AND REQUIRING THE GENERAL ASSEMBLY TO MAKE ALL OTHER AND FURTHER LAWS, RULES AND REGULATIONS TO THE ENFORCEMENT OF THIS AMENDMENT; MAKING THE AMENDMENT SEVERABLE; AND REPEALING ALL LAWS AND CONSTITUTIONAL AMENDMENTS IN CONFLICT WITH THIS AMENDMENT
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.
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. 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 amendment or act.
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. See Arkansas Women's PoliticalCaucus 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 that 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.
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. 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; and 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 CivicAction 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 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 ballot title due to an ambiguity 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 ambiguity. I am therefore unable to substitute and certify a more suitable and correct ballot title pursuant to A.C.A. § 7-9-107(b).
I refer to the following ambiguity:
1. Section 1(3) of your amendment provides: "Beginning one hundred and twenty (120) days after passage of this amendment any business permitted to sell alcoholic beverages for on-premise consumption shall be permitted to operate gambling during the permitted hours of alcoholic beverage sales, but shall exlude [sic] the operation of gambling by those businesses permitted to sell only beer and/or wine." Section 2 (1)(e) then defines "alcoholic beverages" as ". . . all intoxicating liquors of any sort other than beer and wine as described and regulated by Arkansas Code 3-5-301 thru 3-5-307 and 3-9-301 et seq." The interplay between these two provisions still leads to ambiguities. Specifically, referencing particular subchapters of the Arkansas Code in your proposed constitutional amendment leads to ambiguities.
I noted in two earlier rejections (Ops. Att'y. Gen. 2003-258 and 2003-275) that using terms such as "alcoholic beverages" or "intoxicating liquors," respectively, without more, was ambiguous with regard to which businesses would be permitted to operate gambling. Thereafter, you inserted both textual language and a definitional section to clarify the issue. As I noted in my rejection of your last submission (Op. Att'y. Gen. 2003-295), the two insertions you made (textual language excluding the operation of gambling by those businesses permitted to sell only beer and/or wine and a definition of "alcoholic beverages" as including beer and wine), conflicted. You have now modified your definition of "alcoholic beverages" to exclude beer or wine as "described and regulated" under the indicated subchapters. This new definition essentially mirrors the language of A.C.A. § 3-9-202(3).
Including references to these statutory subchapters in your proposed amendment is nonetheless confusing. A question arises as to whether your definitional language is more restrictive than your textual language addressing this point. There are several subchapters regulating beer and wine in the Arkansas Code. The subchapters you mention are not the only statutes governing this subject. For example, A.C.A. § 3-5-413 permits wineries to sell wine for on-premises consumption. With regard to whether your constitutional amendment would authorize such a winery to operate gambling, Section 1(3) of your amendment would not appear to authorize it. But under Section 2(1)(e) of your proposed amendment (the definition of "alcoholic beverages"), the issue is unclear. Is wine sold by a winery under A.C.A. § 3-5-413 within the definition of "alcoholic beverages" because it is not described and regulated in A.C.A. § 3-9-301 et seq.? The same question may be asked with regard to microbreweries under A.C.A. § 3-5-1204. In short, your reference to particular subchapters of the Arkansas Code leads to ambiguities and may cause confusion on the part of the voters.
As I noted in my last rejection, when I read the textual language of Section 1(3) I can now clearly discern your intention to allow certain businesses serving alcoholic beverages to operate gambling, while disallowing businesses permitted to serve only beer and/or wine that same privilege. Adding a specific definition of "alcoholic beverages" on top of this textual clarification, particularly one that is at odds with the text, leads to ambiguities.
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.
At the same time, however, the Arkansas Supreme Court, through its decisions, has placed a practical duty on the Attorney General, in exercising his statutory duty, to include language in a ballot title about the effects of a proposed measure on current law. See, e.g., Finnv. McCuen, 303 Ark. 418, 793 S.W.2d 34 (1990). Furthermore, the Court has recently 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." Roberts v. Priest,341 Ark. 813, 20 S.W.3d 376 (2000). The Court concluded: "[I]nternal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." Id. 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.
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. See A.C.A. §7-9-107(c). You may, after clarification of the matter 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 ballot title may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.
Sincerely,
MIKE BEEBE Attorney General
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