Mr. Barry Emigh 1720 Arrowhead Road, Apt. O North Little Rock, AR 72118
Dear Mr. Emigh:
You have requested certification, pursuant to A.C.A. § 7-9-107 (Repl. 2000), of a popular name and ballot title for a proposed constitutional amendment. You have previously submitted several similar measures, each of which I rejected due to ambiguities in the text of your proposed amendments. See, e.g., Ops. Att'y Gen. Nos. 2000-248, 241, -240, -214, -193, -192, -186, -163, -152, -138, -135, and -120.
You have made changes to your measure and submitted a revised popular name and ballot title for my certification. I must again reject your proposed popular and ballot title, due to continuing ambiguities in the text of your proposed measure, continuing drafting errors, and due to the length and complexity of the proposed ballot title. My conclusions regarding these problems are explained below.
Your proposed popular name and ballot title state:
POPULAR NAME
PAYMENT OF CANVASSERS AND SPONSORS, SCHOLARSHIPS AND TEACHERS PAY USING FOOD TAX WITH INTENT TO ABOLISH FOOD TAX
BALLOT TITLE
PROVIDING FOR THE SEPARATE RECEIPT AND ACCOUNTING, BY THE DEPARTMENT OF FINANCE AND ADMINISTRATION, OF THE STATE AND LOCAL GROSS RECEIPT SALES TAX ON FOOD ITEMS; DEFINING FOOD ITEMS AS ANY ITEM THAT IS EDIBLE TO INCLUDE DRINKABLE FOOD ITEMS AND NON-PRESCRIPTION VITAMIN SUPPLEMENTS NOT CONTAINING ALCOHOL WITH EXCEPTION OF EXCLUSION AS NOTED HEREIN; PROVIDING FOR THE DEPOSIT OF FUNDS IN THE CANVASSER'S ACCOUNT ON THE 31ST DAY FROM THE DATE OF PASSAGE OF THIS AMENDMENT, BY THE DEPARTMENT OF FINANCE AND ADMINISTRATION, OF THE STATE AND LOCAL GROSS RECEIPT SALES TAX ON FOOD ITEMS AS DEFINED HEREIN FOR 180 DAYS AND REQUIRING THE IMMEDIATE DEPOSIT OF SUCH MONEYS IN THE CANVASSER'S ACCOUNT FOR SAID TIME; CREATING THE CANVASSER'S ACCOUNT SEPARATE AND APART FROM THE STATE TREASURY TO BE ADMINISTERED BY THE STATE BOARD OF FINANCE; AMENDING A.C.A. § 19-4-803 TO EXEMPT THE "CANVASSER'S ACCOUNT" FROM THE REQUIREMENTS OF AN APPROPRIATION; EMPOWERING THE STATE BOARD OF FINANCE TO DISTRIBUTE THE CANVASSER'S ACCOUNT MONEY TO BE KEPT AS DISTINCT CASH FUNDS SEPARATE AND APART FROM THE STATE TREASURY; EMPOWERING THE STATE BOARD OF FINANCE TO MANAGE AND INVEST THE CANVASSER'S ACCOUNT IN COMPLIANCE WITH THE PRUDENT INVESTOR RULE AND OTHER APPLICABLE STANDARDS IN A.C.A. §§ 24-3-408, -414, -415, -417 TO -425 AND A.C.A. § 19-3-518; EMPOWERING THE STATE BOARD OF FINANCE TO HIRE PROFESSIONALS TO ASSIST IN THE INVESTMENT OF THE CANVASSER'S ACCOUNT, AND AUTHORIZING THE BOARD TO USE INVESTMENT EARNINGS FROM THOSE FUNDS TO COMPENSATE SUCH PROFESSIONALS; AUTHORIZING 40% OF THE PRINCIPAL AMOUNT OF THE CANVASSER'S ACCOUNT TO BE DIVIDED EQUALLY BY THE NUMBER OF REGISTERED VOTER'S SIGNATURES COUNTED AS VALID BY THE SECRETARY OF STATE TO PLACE THIS AMENDMENT ON THE GENERAL ELECTION BALLOT WITH EACH CANVASSER RECEIVING AN EQUAL PART FROM THE ACCOUNT FOR EACH REGISTERED VOTER'S SIGNATURE ACCEPTED AS VALID BY THE SECRETARY OF STATE; REQUIRING THE STATE BOARD OF FINANCE TO PAY 10% OF THE PRINCIPAL AMOUNT OF THE CANVASSER'S ACCOUNT TO THE SPONSOR OF THIS AMENDMENT; REQUIRING THE STATE BOARD OF FINANCE TO MAKE SUCH AMOUNTS PAYABLE TO THE CANVASSERS AND SPONSOR OF THIS AMENDMENT WITHIN 30 WORKING DAYS AFTER THE FINAL DEPOSIT OF THE PRINCIPAL AMOUNT IN THE CANVASSER'S ACCOUNT; PROVIDING 50% OF THE PRINCIPAL AMOUNT OF THE CANVASSER'S PAYMENT ACCOUNT BE RETAINED IN THE CANVASSER'S ACCOUNT; PROVIDING ALL INVESTMENT EARNINGS ON THE PRINCIPAL AMOUNT OF THE CANVASSER'S ACCOUNT BE RETAINED IN THE ACCOUNT; PROVIDING NO PAYMENT SHALL BE MADE BY THE STATE BOARD OF FINANCE TO ANY PERSON FOR THEIR SIGNATURE ON ANY PETITION AS A PETITIONER WITH THEIR SIGNATURE AS CANVASSER; AUTHORIZING 40% OF THE PREVIOUS 24 MONTHS OF INVESTMENT EARNINGS FROM THE DATE OF PASSAGE BY THE VOTERS TO BE EQUALLY DIVIDED BY THE TOTAL NUMBER OF REGISTERED VOTER'S SIGNATURES COUNTED AS VALID BY THE SECRETARY OF STATE TO PLACE ALL THOSE STATE WIDE AMENDMENTS OR ACTS ON THE GENERAL ELECTION BALLOT APPROVED BY THE VOTERS WITH EACH CANVASSER RECEIVING AN EQUAL PART FROM THE CANVASSER'S ACCOUNT FOR EACH REGISTERED VOTER'S SIGNATURE THEY HAVE ACCEPTED AS VALID BY THE SECRETARY OF STATE; AUTHORIZING 10% OF THE PREVIOUS 24 MONTHS OF INVESTMENT EARNINGS FROM THE DATE OF PASSAGE BY THE VOTERS FROM THE CANVASSER'S ACCOUNT TO BE DIVIDED EQUALLY BY THE NUMBER OF STATE WIDE AMENDMENTS OF ACTS APPROVED BY THE VOTERS AND PAID TO THE SPONSORS OF THOSE AMENDMENTS OR ACTS APPROVED BY THE VOTERS; REQUIRING THE STATE BOARD OF FINANCE TO PAY THE CANVASSERS AND SPONSORS FROM THE CANVASSER'S ACCOUNT WITHIN 30 DAYS AFTER PASSAGE OF ANY STATE WIDE AMENDMENT OR ACT WITH EXCEPTION OF EXCLUSION TO THOSE CANVASSERS AND THE SPONSOR OF THIS AMENDMENT; REQUIRING REDEPOSIT OF INVESTMENT EARNINGS IN THE CANVASSER'S ACCOUNT NOT USED FOR THE PURPOSES HEREIN STATED; PROVIDING ANY PAYMENT FROM THE CANVASSER'S ACCOUNT BY THE STATE BOARD OF FINANCE TO ANY CANVASSER AND THE SPONSOR OF THIS AMENDMENT AND THE CANVASSERS AND SPONSORS OF ANY OTHER STATE WIDE AMENDMENT OR ACT APPROVED BY THE VOTERS TO BE EXEMPT FROM ANY STATE TAX; PROVIDING FOR THE DEPOSIT OF FUNDS IN THE GEORGE W. DONAGHEY SCHOLARSHIP FUND, BY THE DEPARTMENT OF FINANCE AND ADMINISTRATION, OF THE STATE AND LOCAL GROSS RECEIPT SALES TAX ON FOOD ITEMS AS DEFINED HEREIN ON THE 211TH DAY AFTER PASSAGE OF THIS AMENDMENT AND REQUIRING THE IMMEDIATE DEPOSIT OF SUCH MONEYS IN THE FUND AT SAID TIME; CREATING THE GEORGE W. DONAGHEY SCHOLARSHIP FUND SEPARATE AND APART FROM THE STATE TREASURY TO BE ADMINISTERED BY THE STATE BOARD OF FINANCE; AMENDING A.C.A. § 19-4-803 TO EXEMPT THE "GEORGE W. DONAGHEY SCHOLARSHIP FUND" FROM THE REQUIREMENTS OF AN APPROPRIATION; EMPOWERING THE STATE BOARD OF FINANCE TO DISTRIBUTE THE GEORGE W. DONAGHEY SCHOLARSHIP FUND MONEY TO BE KEPT AS DISTINCT CASH FUNDS SEPARATE AND APART FROM THE STATE TREASURY; EMPOWERING THE STATE BOARD OF FINANCE TO MANAGE AND INVEST THE GEORGE W. DONAGHEY SCHOLARSHIP FUND IN COMPLIANCE WITH THE PRUDENT INVESTOR RULE AND OTHER APPLICABLE STANDARDS IN A.C.A. §§ 24-3-408, -414, -415, -417 TO -425 AND A.C.A. § 19-3-518; EMPOWERING THE STATE BOARD OF FINANCE TO HIRE PROFESSIONALS TO ASSIST IN THE INVESTMENT OF THE GEORGE W. DONAGHEY SCHOLARSHIP FUND, AND AUTHORIZING THE BOARD TO USE INVESTMENT EARNINGS FROM THOSE FUNDS TO COMPENSATE SUCH PROFESSIONALS; AUTHORIZING THE STATE BOARD OF FINANCE TO DISTRIBUTE 30% PERCENT OF THE PREVIOUS 12 MONTH INVESTMENT EARNINGS FROM THE GEORGE W. DONAGHEY SCHOLARSHIP FUND FOR SCHOLARSHIPS TO ANY PUBLICLY FUNDED AND PRIVATE UNIVERSITY, COLLEGE AND COMMUNITY COLLEGE IN THE STATE OF WHICH NOT MORE THAN 40% OF THE FUNDS SHALL BE DISTRIBUTED FOR EACH SESSION OF CLASSES; AUTHORIZING THE STATE BOARD OF FINANCE TO DISTRIBUTE 18% PERCENT OF THE PREVIOUS 12 MONTH INVESTMENT EARNINGS FROM THE GEORGE W. DONAGHEY SCHOLARSHIP FUND TO BE DIVIDED EQUALLY BY THE NUMBER OF TEACHERS EMPLOYED BY A PUBLICLY FUNDED INSTITUTE OF EDUCATION TO INCLUDE K THROUGH 12TH GRADES, UNIVERSITIES, COLLEGES AND COMMUNITY COLLEGES AND PAID TO THOSE TEACHERS; AUTHORIZING THE STATE BOARD OF FINANCE TO DISTRIBUTE 2% PERCENT OF THE PREVIOUS 12 MONTH INVESTMENT EARNINGS FROM THE GEORGE W. DONAGHEY SCHOLARSHIP FUND TO THE TEACHER'S RETIREMENT FUND; PROVIDING ANY PAYMENT BY THE STATE BOARD OF FINANCE FROM THE GEORGE W. DONAGHEY SCHOLARSHIP FUND TO THE TEACHER'S RETIREMENT FUND, ANY TEACHER AND SCHOLARSHIP PAID TO ANY PERSON TO BE EXEMPT FROM ANY STATE TAX; REQUIRING REDEPOSIT IN THE GEORGE W. DONAGHEY SCHOLARSHIP FUND OF INVESTMENT EARNINGS NOT USED FOR THE PURPOSES HEREIN STATED; AUTHORIZING THE STATE BOARD OF FINANCE TO PROVIDE A CONVENIENT TIME FOR PERSONS TO SUBMIT AN APPLICATION FOR SCHOLARSHIPS TO THE STATE BOARD OF FINANCE WITH SUCH PAYMENT BEING MADE IN A TIMELY MANNER FROM THE GEORGE W. DONAGHEY SCHOLARSHIP FUND TO THE UNIVERSITIES, COLLEGES AND COMMUNITY COLLEGES WITHIN THE STATE; REQUIRING THE APPLICATION TO STATE THE FULL AMOUNT OF TUITION COST FOR THE CHOSE UNIVERSITY, COLLEGE AND COMMUNITY COLLEGE FOR EACH SESSION OF CLASSES, THE AMOUNT OF ANY OTHER FINANCIAL AID, GRANTS OR SCHOLARSHIPS RECEIVED BY THE INDIVIDUAL AND THE INDIVIDUAL'S TOTAL EARNED GROSS INCOME FROM THE PREVIOUS YEAR; REQUIRING DISTRIBUTION OF FULL-TUITION FROM THE GEORGE W. DONAGHEY SCHOLARSHIPS TO ANY UNIVERSITY, COLLEGE OR COMMUNITY COLLEGE IN THE STATE FIRST, TO THOSE PERSONS WITH THE LOWEST TOTAL AMOUNT BY ADDING BOTH THE AMOUNT OF TUITION PAYMENT (AFTER DEDUCTIONS FOR OTHER FINANCIAL AID, GRANTS AND SCHOLARSHIPS) AND THE INDIVIDUAL'S PREVIOUS YEAR TOTAL GROSS INCOME; PROVIDING NO PAYMENT SHALL BE MADE BY THE STATE BOARD OF FINANCE TO ANY UNIVERSITY, COLLEGE AND COMMUNITY COLLEGE FOR A PERSON TO RETAKE A FAILED CLASS; PROVIDING NO PAYMENT SHALL BE MADE BY THE STATE BOARD OF FINANCE TO ANY PRIVATE UNIVERSITY AND COLLEGE FOR ANY PERSON TO TAKE A RELIGIOUS CLASS AS A REQUIREMENT OF THE UNIVERSITY OR COLLEGE; EXEMPTING FOOD ITEMS AS DEFINED HEREIN FROM THE STATE AND LOCAL GROSS RECEIPT SALES TAX WHEN 50% OF THE TOTAL AMOUNT OF THE INVESTMENT EARNINGS FROM THE GEORGE W. DONAGHEY SCHOLARSHIP FUND EXCEEDS THE ANNUAL DEPOSIT O THE STATE AND LOCAL GROSS RECEIPT SALES TAX ON FOOD ITEMS; PROVIDING THIS AMENDMENT SHALL NOT AFFECT THE TAX ON THOSE ITEMS AS PROVIDED UNDER A.C.A. § 26-57-901 OF THE "ARKANSAS SOFT DRINK TAX ACT" NOR ANY ITEMS THEREAFTER EXCLUDED FROM THE ARKANSAS SOFT DRINK TAX; PROVIDING THIS AMENDMENT SHALL NOT AFFECT ANY TAX ON PREPARED RESTAURANT FOODS DEFINED AS A RESTAURANT OR SIMILAR BUSINESS UNDER A.C.A. § 20-57-208; PROVIDING THIS AMENDMENT SHALL NOT AFFECT ANY TAX ON ALCOHOLIC BEVERAGES; PROVIDING THIS AMENDMENT SHALL BE SELF EXECUTING; TO PROVIDE SEVERABILITY AND TO REPEAL ANY STATUTES AND LAWS 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 both your proposed popular name and your proposed ballot title for a variety of reasons.
(1) One reason that I must reject your proposed popular name and ballot title is that the text of your proposed measure contains certain ambiguities that render it incapable of being fairly and accurately summarized. I refer to the following ambiguities:
(A) Sections Three (6)(b) and (c) provide for the division of the Canvasser's Account equally by the number of signatures, and that each canvasser is to receive "an equal part of payment . . . for each registered voter's signature the canvasser has accepted[.]" These provisions are unclear. It is impossible to determine whether each canvasser will receive an equal part of the entire account, or whether each canvasser will receive payment for the number of signature he or she has obtained. A similar ambiguity occurs in Sections Three (6)(j), (k), and (l).
(B) Sections Three(6)(g) and (j) authorize the distribution of investment earnings for the "previous" twenty-four 24 months." These sections do not indicate the date" previous" to which the 24 months are to be counted. A similar ambiguity occurs in Section Seven(4).
(C) Section Seven(5), which exempts all payments made under the measure (including scholarship payments) from all state taxes, raises the question of whether tuition payments made pursuant to the measure are to be deemed the income of the student or of the university. The measure does not clearly indicate whether such payments will be made to the recipient students, or directly to the chosen university. This is an issue that could have First Amendment significance and could therefore give certain voters pause.
(D) Section Nine(2), which provides for the tuition payments, makes reference to payments made to "one, or any number of universities, colleges and community colleges at one time." This language raises a question as to whether one student can attend more than one institution at one time and receive payments for all such institutions.
(2) I must also reject your proposed popular name and ballot title on the grounds of its length and complexity. I note that your proposed measure attempts to encompass a number of unrelated subjects. Although the law does not prohibit you from including multiple subjects in one measure, an attempt to do so may render the measure inordinately complex and lengthy. When a proposed measure is inordinately complex and lengthy, it cannot as a practical matter be summarized in a ballot title that fairly and accurately informs the voters of the contents of the measure. In this regard, I must point out that your proposed ballot title contains 1,423 words. Because the voters have a limited amount of time to spend in the voting booth, they cannot practically be expected to read and comprehend a ballot title of this length, if the ballot title has other complicating features, such as an attempt to encompass multiple unrelated subjects.
(3) Finally, I must reject your proposed popular name and ballot title because the text of the measure contains numerous spelling, punctuation, grammatical, and syntax errors that render the measure ambiguous and difficult to understand sufficiently to summarize in a popular name and ballot title without my having to surmise your intended meaning.
As I have pointed out to you on previous occasions, 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, Case No. 00-485 (July 7, 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).
Mr. Emigh, the problems discussed above that have led me to reject yourproposed popular name and ballot title in this instance are problems thathave recurred in the numerous measures that you have previously presentedto my office for certification. Amending the constitution of the state isa very serious matter. The Arkansas Supreme Court holds popular names andballot titles of proposed constitutional amendments to a standard that iscommensurate with this seriousness. Accordingly, I must be diligent in myduty to assure that the popular names and ballot titles that I certifymeet the court's high standard. If you are intent upon passing a measurethat will amend the constitution, I strongly urge you to obtain legalcounsel who will be able to assist you in meeting this standard. Suchcounsel will help you to avoid wasting time and effort in preparingproposals that cannot be certified.
If you should choose to clarify the problems discussed above and resubmit your proposed amendment, along with a proposed popular name and ballot title, I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.
Sincerely,
MARK PRYOR Attorney General
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