This is an original action by the petitioner, Paul Parker, to enjoin the Respondent, Secretary of State, Sharon Priest, from placing on the ballot proposed Amendment 7, which would authorize a state lottery and legalize bingo, raffles, and casino gaming. This court has original jurisdiction over this matter pursuant to Ark. Const, amend. 7 and Ark. S. Ct. R. 6-5. The original action petition is opposed by the respondent, and by the intervenors, Mike Wilson, individually and on behalf of the Committee to Promote Arkansas, who are the sponsors of proposed Amendment 7.
The petition challenges the sufficiency of the ballot tide of the proposed amendment and asserts that it is defective because: 1) it does not disclose that Oaklawn and Southland racetracks are two of the three sites designated in the amendment where casino gaming is authorized; 2) it does not state how four additional sites for casinos will be selected by the General Assembly; 3) it does not inform the voters that the primary purpose of the proposed amendment is to legalize casino gaming at Oaklawn and Southland racetracks or that its passage would grant a monopoly on the combination of parimutuel wagering and casino gaming to these two entities; and 4) the initiative petition filed with the Secretary of State omitted a portion of the ballot title. We hold that the failure to disclose that two of the three designated sites for casino gaming are Oaklawn and Southland racetracks causes the ballot tide to be fatally deficient.
Certain general principles of law for ballot tide cases have been set forth in recent cases decided by this court and are pertinent to this case. See Parker v. Priest et al., No. 96-779 (Ark. S. Ct., Sept. 30, 1996); Christian Civic Action Committee v. McCuen, 318 Ark 241, 884 S.W.2d 605 (1994); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994).
We have said that the majority of voters will read a proposed amendment for the first, and only, time when they read it on the ballot. Christian, supra. Thus, it is crucial that the ballot title not be misleading, and that it disclose enough information so that voters can make “an intelligent choice and be fully aware of the consequences of their vote.” Id. However, it is not this court’s function to “express our view on, or to determine the merits of, a proposed measure — that power is expressly reserved to the people.” Parker, supra. Furthermore, the purpose of the initiative process is not undermined by an initiative “that directly benefits a relative few of the people so long as the benefits to the few are not concealed from the voters.” Id.
The party challenging the ballot title has the burden of proving that it is misleading or insufficient. Christian, supra. The petitioner is not entitled to a “ballot tide that pleases him personally, as we have previously recognized the impossibility of drafting a ballot tide that would suit everyone.” Parker, supra.
We will further be “liberal” when construing the sufficiency of the ballot tide. Bailey, supra. While the ballot title is not required to summarize every aspect of the initiative, it must give the voter “an intelligible idea of the scope and import of the proposed law.” Christian, supra. In other words, the ballot tide must enable the voter to “reach an intelligent and informed decision for or against the proposal and to understand the consequences of his or her vote.” Id.
Finally, although the ballot title need not summarize every aspect of the initiative, if the information is “an essential fact which would give the voter serious grounds for reflection, it must be disclosed.” Bailey, supra. Moreover, “[t]he ballot must be free from any misleading tendency, whether of amplification, or omission, or of fallacy, and it must not be tinged with partisan coloring.” Id.
Proposed Amendment 7 has the following popular name:
AN AMENDMENT TO ESTABLISH A STATEWIDE STATE-RUN LOTTERY, TO PERMIT THE GAME OF BINGO AND RAFFLES TO BE CONDUCTED BY CHARITABLE, NON-PROFIT ORGANIZATIONS, TO AUTHORIZE CASINO GAMING AT TWO SITES IN GARLAND COUNTY AND AT TWO SITES IN CRITTENDEN COUNTY, TO PERMIT THE GENERAL ASSEMBLY TO AUTHORIZE CASINO GAMING AT UP TO FOUR ADDITIONAL SITES; TO ESTABLISH THE ARKANSAS EDUCATION TRUST FUND AND THE ARKANSAS CASINO GAMING COMMISSION.
As to the four sites where casinos will be located in Garland and Crittenden Counties, the ballot title states:
TO AUTHORIZE CASINO GAMING IN GARLAND COUNTY AT TWO SITES, ONE SPECIFICALLY DESCRIBED IN THE AMENDMENT AND ONE TO BE CHOSEN BY THE QUORUM COURT OF GARLAND COUNTY, TO AUTHORIZE CASINO GAMING IN CRITTENDEN COUNTY AT TWO SITES BOTH OF WHICH ARE SPECIFICALLY DESCRIBED IN THE AMENDMENT.
(Emphasis added.) However, Section 3 of the amendment provides that the four chosen sites are: Oaklawn Racetrack in Hot Springs, a site to be selected by the Garland County quorum court, Southland Racetrack in West Memphis, and a specific parcel of land in Crit-tenden county which is legally described. There is no hint in the ballot title that Oaklawn and Southland are two of the three predetermined sites for casino gaming. Certainly, most voters are probably familiar with Oaklawn and Southland and know that these are the only locations in Arkansas where gambling is presently allowed. Furthermore, although some voters will know that these two racetracks are located in Crittenden and Garland Counties, it is clear that the voter will not know from the ballot title that Southland and Oaklawn are two of the three sites specifically designated in the amendment for casino gaming, and that they will therefore benefit greatly from the passage of this measure. The issue is thus whether such information is “an essential fact that would give the voter serious grounds for reflection.” Bailey, supra.
The petitioner relies on Page in support of his argument that the failure to disclose this information causes the amendment to be fatally flawed. In Page, this court rejected a casino amendment because the ballot tide stated only that a casino would be authorized “at a designated site” which would lead the voter to believe that no site had yet been chosen. We explained that this was a fatal defect because:
Before casting their ballots, voters no doubt would pause for reflection if they were aware “the” designated site had already been established in the proposed constitutional measure itself, thereby guaranteeing the site’s owner whatever benefits that would result from the measure’s passage.
Id. (Emphasis added.) However, in this instance the ballot tide clearly tells the voter that three of the four sites have already been chosen. The intervenors, who also sponsored the amendment which was removed from the ballot in 1994 in Page, submit that they have satisfied the standard set forth in Page by disclosing that the three sites have in fact been predetermined.
Although the facts of Page are not direcdy analogous, we find the underlying principle to be relevant. In Page, this court expressed a distaste for hiding from the voter that private interests will direcdy benefit from a measure’s passage. Id. This concern was recendy restated in Parker.
The purpose of the initiative process is not undermined by the presentation to the voters of an issue that direcdy benefits a relative few of the people so long as the benefits to the few were not concealed from the voters.
Parker, supra (Emphasis added.) In this instance, the ballot title for Amendment 7 clearly conceals from the voters the direct benefit to Oakland and Southland, which are significant and important Arkansas gambling interests.
In Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), this court rejected an amendment that would have allowed state lotteries because the ballot tide failed to mention that the amendment designated three people to serve on the State Lottery Commission. We explained:
The electors are being asked to elect at least three people to important positions without being informed in the ballot tide of the names or interests of these prospective board members, they are not even being told that named persons will be on the board.
Id.
Similarly, in Dust v. Rivieria, 277 Ark. 1, 638 S.W.2d 663 (1982), this court rejected an initiative that would have benefited a few private interests but did not disclose this matter to the voting public. In Dust, the ballot tide stated that the amendment would create a Ratepayers Utility Board whose seven members would be appointed by various people in the Executive Department. Id. However, the ballot tide did not mention that board members would be selected to represent specific, private interests, including environmental groups and labor organizations. Id. This court held that:
The voter, who is a residential or small business customer, has a right to know that these interests can direct and control the Board which is supposed to represent and advocate the interests of residential and small business consumers.
Id. Accordingly, this court rejected an initiative that failed to disclose in the ballot tide the direct benefits to a “relatively few” special interests. It is clear that the benefit to specific private interests can indeed be a matter which would give the voter “serious grounds for reflection.” We think that Oaklawn and Southland are such interests and that their identities constitute an essential fact which should have been disclosed, and indeed could have been disclosed, with fewer words than actually utilized in the ballot tide.
In sum, it is clear that the voters are not made aware that, by voting for Amendment 7, they are not simply voting to authorize “two sites” in Garland County and “two sites” in Crittenden County, three of which are “specifically designated in the amendment.” Instead, they are voting to authorize casino gaming “at Oaklawn Race Track in Hot Springs” and at “Southland Race Track in West Memphis.” The failure to disclose this information is a material omission that renders the ballot tide fatally defective. Consequently, we need not consider the remaining issues raised by Parker in his petition.
The petition is granted, and the Secretary of State is enjoined from placing proposed Amendment 7 on the November 5, 1996, general election, or in the alternative, from counting the votes cast on this issue. The mandate shall issue on October 25, 1996, unless a petition for rehearing is filed on or before that date.
Petition granted.
Special Justice Sandra Smith Hochstetter joins this opinion. Dudley, Glaze, and Corbin, JJ., dissent. BROWN, J., not participating.