dissenting. In Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000), Justice Corbin, who wrote for the plurality, stated “[T]he ultimate issue is whether the voter, while inside the voting booth, is able to reach an intelligent and informed decision for or against the proposal and understands the consequences of his or her vote based on the ballot title.” Id. (emphasis added). In his concurring opinion in Kurrus, supra, Justice Brown made the issue clear by asking, “Flow can we perform our duty if the amendment itself misleads or deceives the people about what is at issue? The answer is obvious. We cannot.” Id. Additionally, in Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984), Justice Dudley wrote, “[P]opular ballot names which contain catch phrases or slogans that tend to mislead or give partisan coloring to the merit of the proposal will be rejected. Id. (Internal citations omitted). The court then concluded that, “The popular name, ‘The Unborn Child Amendment’ is misleading.” Id.
In my view, Proposed Amendment 3 with the popular name, “An Amendment Concerning Marriage” is misleading and I respectfully dissent. The popular name, “An Amendment Concerning Marriage,” would have been consistent with the text of the following proposal:
Be it enacted by the people of Arkansas:
Section 1. Marriage
Marriage shall only be the union of one man and one woman.
Section 2. Capacity, Rights, Obligations, Privileges, and Immunities
The Legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges and immunities of marriage.
This quoted language is in the proposal under consideration. If the proposal were limited to these provisions concerning marriage, the popular name would not be misleading or deceiving. I would promptly approve its submission to the voters.
However, the popular name and ballot title of Proposed Amendment 3 do not inform the voters of the context of the amendment or the consequences of a vote for or against the proposal. The drafters of Proposed Amendment 3 did not limit the scope and import of the amendment to a prohibition of same-sex marriage or to laws relating to marriage. They included an additional section prohibiting individuals who are not married from having legal rights that are substantially similar to those applicable to married people. They added a section to the amendment under consideration that reads as follows:
Section 2. Marital Status
Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize common law marriages from another State between a man and a woman.
The popular name does not call attention to the addition of this significant provision relating to unmarried persons. The popular name could simply have been revised to read, “An Amendment Concerning Marriage and Prohibiting Unmarried Persons from Having Substantially Similar Rights.” This popular name would have informed voters that the amendment was broader than a prohibition of same-sex marriages and that it would also have an effect on unmarried persons, without regard to their gender or sexual orientation.
Proposed Amendment 3 could repeal or modify a number of Arkansas statutes that affect the rights of unmarried persons and I believe that the voters have a right to some warning that this proposal could limit the rights of single persons under Arkansas law.
For example, under Ark. Code Ann. § 26-51-301 (Supp. 2003) et seq., a single person making less than $7,700.00 is exempted from state income taxes while a married couple filing jointly is exempted if their joint income is less than $15,500.00. It seems clear to me that under Proposed Amendment 3, the legislature could not amend the tax code to grant an unmarried head of household a tax exemption for making less than $15,500.00 because that is a legal status identical to a married person. Currently, an unmarried head of household is exempt from State income tax if they make less than $12,000.00. Is that exemption substantially similar to the rights of a married person under the tax laws? Would a voter looking at the popular name in the voting booth be informed that such a question would be implicated by passage of the amendment? I do not think that voters would be aware of this problem.
The Arkansas Tax Code provides further protections to unmarried persons identical or substantially similar to the protections provided to a married person. Arkansas Code Annotated § 26-51-501 (Supp. 2003), provides ajoint tax credit to a surviving spouse that is identical to the joint tax credit for a married person. A widower, who is by definition not married, may not be allowed to retain the surviving spouse benefits under Proposed Amendment 3. Would a voter be aware that a vote for Proposed Amendment 3 may result in widows and widowers no longer being eligible for surviving spouse benefits? I do not think that the popular name informs the voter of the consequences of his or her vote with regard to this matter.
Another example is that the popular name and ballot title do not inform the voters of the possibility that Proposed Amendment 3 could jeopardize the constitutional rights of an unmarried person to a homestead exemption. An unmarried head of household receives identical rights to homestead protection as a married person under Arkansas Constitution Article 9 § 3. Adoption of a new amendment may repeal provisions of previous constitutional law. Does the popular name or ballot title disclose that Proposed Amendment 3 might be interpreted as prohibiting a homestead exemption for unmarried persons under the Arkansas Constitution? I do not think so.
Arkansas Code Annotated § 9-11-208 (Supp. 2003) allows employers to extend benefits to the unmarried domestic partners of an employee. This statute allows an unmarried man and woman to receive the same benefits from an employer that a married couple receives. These are rights or a legal status that is identical or substantially similar to the rights conferred by marital status. The consequences of Proposed Amendment 3 could reach all domestic partners receiving benefits from employers. Does the popular name adequately inform voters of this possibility?
These examples illustrate why it is important that voters be informed of the scope and import of a proposed amendment. Nothing in the popular name gives any notice that, in addition to prohibiting same-sex marriages, the text of the amendment is designed to impair or invalidate rights of unmarried people without regard to their sexual preferences.
We should follow the sound teaching of Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605, (1994). There, we held that “ [t]he ballot title did not convey an intelligible idea of the scope and import of the proposed law,” and wrote:
It is evident that before determining the sufficiency of the present ballot title we must first ascertain what changes in the law would be brought about by the adoption of the proposed amendment. For the elector, in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make. Hence the adequacy of the title is directly related to the changes he is given the opportunity of approving.
Id. (citing Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952)) (emphasis in original). Neither the majority nor the concurrence addresses this part of the holding from Christian Civic Action Committee, but to me it is determinative of this ballot title challenge. In my view, the ballot title does not convey an intelligible idea of the scope and import of the proposed amendment because the popular name is misleading and does not indicate that the amendment could be used to impair or invalidate rights of unmarried persons.
For those reasons, I respectfully dissent.
Jim Hannah, Justice,dissenting. I must respectfully dissent. In my opinion, a voter faced with the popular name and ballot title the majority approves would not be provided a fair understanding of the issues presented or the impact of his or her vote in favor of the amendment.
Based on the briefs and material presented in this case, as well as recent events nationwide, it is apparent that the goal of the proponents of Amendment 3 is to preclude statutory adoption of any state-recognized and state-protected union of persons such as domestic partners and civil unions. While there certainly is no reason that such issues may not be addressed by an amendment, the law requires that the popular name and ballot title so indicate, which was not done in this case. The issue before this court is simply a lack of candor in the popular name and ballot title, and I believe that this court should compel drafters ofpopular names and ballot titles to be forthright and clear. “[A]mending the constitution is a precise science which entails complete information flowing to the electorate.” McCuen v. Harris, 321 Ark. 458, 468, 902 S.W.2d 793 (1995).
The issue before this court is not whether the amendment is a wise idea or not. Two issues are presented to this court. The first issue is whether the popular name adequately identifies the nature of the proposal presented by the amendment. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). The second issue is whether the ballot title gives the voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law. Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996). I believe that neither the popular name nor the ballot title satisfy these requirements.1
The popular name, “An Amendment Concerning Marriage,” is misleading. The Amendment would reach outside marriage to control what the State in the absence of the Amendment could adopt as a state-recognized union of persons. Therefore, it is an amendment that concerns far more than marriage as that term is traditionally understood. The scope of the amendment is not described by the popular name.
Marriage is well defined in this State, and it is clear that the amendment covers more than marriage. “Marriage is a civil contract between a husband and a wife.” Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 331, 584 S.W.2d 21 (1979); see also Ark. Code Ann. § 9-11-101 (Repl. 2002). Marriage may only be solemnized between a man and a woman, as codified in Ark. Code Ann. § 9-11-109 (Repl. 2002), where we find, “Marriage shall be only between a man and a woman. A marriage between persons of the same sex is void.”
I believe that the popular name misleads the electorate. If the Amendment is intended to preclude any state-recognized union of persons aside from the already recognized union of persons through marriage, the popular name should make that clear. I note yet again that the issue is not whether such unions are good or bad, wise or improvident, but rather whether a voter understands what he or she is voting on. Also, while there is nothing in this case to show an affirmative intent to mislead, such an intent could be present. It is not difficult to imagine members of society who would certainly support marriage, but who might be reluctant to support the Amendment if it were clear from the name that the Amendment also precluded any other union of persons. The popular name, “An Amendment Concerning Marriage,” does not indicate that other possible unions of persons are at issue in addition to marriage. This is a defect that could have been very easily remedied had this challenge been brought earlier.
I also have concerns about the ballot title. The ballot title to the proposed amendment states in pertinent part that “marriage consists of the union of one man and one woman; that legal status for unmarried persons which is identical or substantially similar to marital status shall not be recognized in Arkansas. . . .” Perhaps the Amendment might have read, “The only union between persons that shall be recognized in Arkansas shall be the union of marriage, consisting of the union between one man and one woman, and no other union of any kind between persons shall be recognized in this State, except...” However, we must decide whether the above quoted language from the ballot title is misleading or insufficient as asserted.2 Scott, supra. I do not believe it meets the test. The term “legal status for unmarried persons” is hopelessly vague and ambiguous. The legal status of unmarried persons is clearly “unmarried.” In DHS v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003), the term “legal status” was used in the context of wrongful-death decisions, and whether such decisions should be read to confer full legal status upon a fetus. In Tyson Foods, Inc. v. Conagra, Inc., 349 Ark. 469, 79 S.W.3d 326 (2002), the court noted that “trade secret” is a legal status fixed by statute. What is at issue is the legal status of an affected interest. See, e.g., Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000). The affected interest in the case before us is unions between persons that this state may recognize. The term “legal status for unmarried persons” is at best redundant and at worst so confusing that it is unintelligible.
Likewise, the term “marital status,” which apparently refers back to “legal status,” is vague and ambiguous. I disagree that the term “marital status” is clarified by the context of its use. Marital status refers to one’s status in relation to marriage, in other words, marriage is one form of marital status, along with unmarried, divorced, or widowed. This is also shown in a footnote in In Re Adoption D.J.L., 341 Ark. 327, 16 S.W.3d 263 (2000), where the court stated, “The appellants argue in their brief that an adoption by two unmarried adults is permissible, but nothing in their abstract denotes their marital status.” Adoption D.J.L., 341 Ark. at 328. It remains entirely unclear to me what relationship is referred to by the term “legal status for unmarried persons which is identical or substantially similar to marital status. . . .”
The majority notes that it is unlikely that voters will view the ballot title with the same degree of technicality as the petitioners did in this case. However, it was the intervenors who chose to use legal terms in the ballot title. The use of the legal terms gives rise to the confusion the intervenors now seek to ignore. It is also worthy of note that counsel for intervenors at oral argument stated, “Now, because voters, as long as they know what they are voting on, and if voters think it is misleading, if voters think it is confusing, they can reject it.” This is precisely the evil the popular name and ballot must avoid. Because there is indeed the confusion that counsel for intervenors alludes to, this court must strike this measure from the ballot.
In this case, we are yet again presented the unenviable task of ruling on the adequacy of a popular name and ballot title on the eve of an election. Ten years ago in Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994), this court stated:
We commend the General Assembly’s past effort in attempting to establish reasonable statutory timetables to implement initiative and referendum measures under Amendment 7. We respectfully ask its further consideration and action and encourage the General Assembly to make another attempt to establish an initiative and referendum procedure that will permit early resolution of such issues. Until appropriate action is taken to correct the problems attendant to proposals submitted under Amendment 7, citizens can continue to expect measures to be removed from the ballot immediately prior to the election. This court does not enjoy being in the “last-minute” position of review. The people of Arkansas deserve an initiative and referendum procedure which allows them the confidence that measures, after having been adequately reviewed, will not be removed from the ballot. The sponsors of initiative proposals should also be assured their ballot titles and proposed measures meet required guidelines and rules before they spend their time, energy and monies in getting their proposal before the voters.
Page, 318 Ark. at 348.
The popular name and the ballot title were certified by the Secretary of State to go on the ballot on March 12, 2004. However, the petition commencing the original action challenging the popular name and ballot title was not filed until August 26, 2004.
As we stated in Page, supra, we desperately need an initiative and referendum procedure that will permit early resolution of issues such as those presently before this court. No one wishes to see measures removed from the ballot immediately prior to the election. There ought to be an initiative and referendum procedure which assures review early enough so that corrections may be made and measures need not be removed from the ballot. The sponsors of initiative proposals also deserve such a procedure so that their time, energy and monies in getting their proposal before the voters are not wasted.
Neither the popular name nor the ballot title meet the statutory requirements. They are one-sided, and only present a partial description of the proposed change to the Constitution. I would grant the petition.
I agree with Justice Thornton in his dissent where he states that if section two of the proposed amendment were deleted, the popular name and ballot title would be sufficient.
I agree with the majority that because the Amendment sponsors chose to use the Amendment language in their ballot tide, we necessarily must interpret that language although our analysis is limited to whether the ballot title meets the requirements of Amendment 7. Use of the Amendment language as a ballot tide in no way assures that the requirements of Amendment 7 are met. The ballot title must fairly present the amendment to the voters no matter where the language came from. See, eg., Roberts v. Priest, 326 Ark. 123, 930 S.W.2d 322 (1996).