dissenting. The petitioners, Christian Civic Action Committee and Barry King, filed this original action in this court seeking to restrain the Secretary of State from certifying the election results of a proposed constitutional amendment entitled, “An amendment to authorize a state lottery, nonprofit bingo, pari-mutuel wagering and additional games of chance at racetrack sites.” The majority opinion holds that the ballot title is misleading and enjoins the Secretary of State from certifying the results of the election. I respectfully dissent.
I.
A. STATE CONSTITUTIONAL AND STATUTORY PROVISIONS CONCERNING GAMBLING
In order to determine if a ballot title is sufficient, this court must determine what changes in the law the proposal would make. Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The Constitution of Arkansas provides: “No lottery shall be authorized by this State, nor shall the sale of lottery tickets be allowed.” Ark. Const, art. 19, § 14. The identical provision was contained in the statehood constitution of 1836, the secession constitution of 1861, the military constitution of 1864, the reconstruction constitution of 1868, and the current constitution of 1878. The reason for the provision in all five constitutions is that lotteries, which are of ancient origin, had became so common and their influence had become so pernicious that they were singled out and treated differently from other forms of gambling. Since statehood, they continually have been constitutionally prohibited. As a result, the legislature has not been able to authorize lotteries.
A lottery is defined as a game that is determined entirely by lot, or mere luck, and in which judgment, practice, or skill are to no avail. “[T]o constitute a lottery it is essential not only that the element of chance is present, but also that it controls and determines the award of the prize, whatever it may be.” Longstreth v. Cook, 215 Ark. 72, 80, 220 S.W.2d 433, 437 (1949).
The constitutional section prohibiting lotteries does not operate as a blanket prohibition against gambling. It forbids only the legislative legalization of lotteries and the sale of lottery tickets. Scott v. Dunaway, 228 Ark. 943, 311 S.W.2d 305 (1958). Thus, the legislature can authorize forms of gambling other than a lottery.
In 1838, the general assembly made illegal many forms of gambling. Many of the revised statutes of 1838 prohibiting various forms of gambling are brought forward in today’s statutes. See Ark. Code Ann. §§ 5-66-101 — 5-66-119 (Repl. 1993). The public policy against gambling, expressed by the legislature in 1838, was so strong that a losing bettor was authorized to file suit to recover his losses, but a winning bettor was prohibited from filing suit to collect his winnings. That public policy set by the general assembly is still in force. See Ark. Code Ann. § 16-118-103(a) & (b)(1) (1987).
While gambling in general was made illegal by the general assembly, horse racing occurred with some frequency. See McLain v. Huffman, 30 Ark. 428 (1875). Likely, it was for this reason that the revised statutes of 1838 provided that a losing bettor was authorized to maintain a suit to recover losses, except that no bettor could recover money “lost on any turf race.” Ark. Code Ann. § 16-118-103(a)(3) (1987). Horse racing continued in various forms, and, in 1935, the general assembly legalized pari-mutuel betting on horse races. 1935 Ark. Acts 46 § 14. A suit was filed to determine whether Act 46 violated the constitutional provision against lotteries. This court held that pari-mutuel betting on a horse race was not determined by chance alone and therefore did not come within the constitutional prohibition against lotteries. Longstreth v. Cook, 215 Ark. 72, 220 S.W.2d 433 (1949).
Sections 1 and 9 of Act 46 of 1935 provided for an Arkansas Racing Commission, and that the Commission could award franchises “to operate a race track and hold racing meetings in such counties of the State as the Commission may believe there will be applicants for franchises.” However, section 22 of the Act provided that if a majority of the voters in any county voted against racing no franchise could be awarded in that county. The holder of the franchise in Garland County apparently did not wish its franchise to be subject to the vagaries of the electors of that county. In November 1956, Amendment 46 to the Arkansas Constitution was passed by a vote of 219,835 to 161,630. It provides: “Horse racing and pari-mutuel wagering thereon shall be lawful in Hot Springs, Garland County, Arkansas, and shall be regulated by the General Assembly.” For deciding the issue now before us, it matters not whether the action was wise or imprudent, rather it matters only that the citizens of the State elevated horse racing and pari-mutuel betting in Hot Springs to the same constitutional levels as the right to peaceably assemble, article 2, section 4, and the right to liberty of the press and of speech, article 2, section 6. From that time, neither the voters of Hot Springs nor the voters of Garland County nor the general assembly could stop horse racing and pari-mutuel betting in Hot Springs. It can now be stopped only by another amendment to the state constitution.
Current statutes provide that “horse racing may be conducted in all political subdivisions of the State” and the Arkansas Racing Commission is authorized to “grant franchises to conduct horse races” upon specified terms and conditions. Ark. Code Ann. §§ 23-110-204 & 23-110-301 (1987).
Act 339 of 1935 provided for pari-mutuel wagering on greyhound racing. The 1935 Act was replaced by the current “Arkansas Greyhound Racing Law” of 1957. See Ark. Code Ann. §§ 23-111-101 — 515 (1987 & Supp. 1993). Pari-mutuel wagering on greyhounds under this act does not violate the constitutional provision against lotteries. Scott v. Dunaway, 228 Ark. 943, 311 S.W.2d 305 (1958). The general assembly currently has the authority to repeal the act providing for pari-mutuel wagering on greyhound racing, and the qualified electors of any county in which a greyhound racing franchise is located can void a franchise. Ark. Code Ann. § 23-111-306(c) (1987).
B. PROVISIONS OF THE PROPOSED AMENDMENT
The text of the proposed amendment would repeal the longstanding prohibition of lotteries. It would amend the constitution to provide that bingo and raffles, games based entirely on chance, are authorized. It would authorize pari-mutuel wagering at a horse racing franchise in Garland County and at a greyhound racing franchise in Crittenden County and thus take away the right of the voters of Crittenden County to stop greyhound racing. It would authorize additional games of chance at the two racetrack sites. It would prohibit any gambling not provided for in the amendment and thus would prohibit the opening of other racetracks.
II.
STANDARDS FOR DETERMINING THIS SUIT
The gravamen of petitioners’ complaint is that the vote should not be certified because the ballot title does not convey the true scope and the significance of the proposal and, in addition, is misleading.
An adequate ballot title is one that impartially discloses all material matters. It must be (1) intelligible, (2) honest, and (3) impartial. Leigh v. Hall, 232 Ark. 558, 562, 339 S.W.2d 104, 107 (1960).
There is a distinction between the omission of a material matter and a misleading statement in ballot titles. It is not necessary to disclose all provisions of the text of the proposal in the ballot title; otherwise, the full text of the proposal would be necessary. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). However, it is necessary to disclose all material issues. A material issue is one that would give a voter “serious ground for reflection” in deciding whether to vote for or against a proposal. Hoban v. Hall, 229 Ark. 416, 418, 316 S.W.2d 185, 186 (1958). The omission of a material issue from a ballot title can cause this court to strike the proposed issue. See Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936). The reason is that the omission of a material issue can prevent disclosure of the scope and import of the proposed measure.
While we must determine whether an omission amounts to a material omission, we do not do so when the ballot title is misleading. We have said that a ballot title ought to be “free from any misleading tendency” and “contain no partisan coloring.” Shepard v. McDonald, 189 Ark. 29, 30, 70 S.W.2d 566, 566 (1934) (quoting Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931)). Every ballot title must be “honest.” Plugge v. McCuen, 310 Ark. 654, 657, 841 S.W.2d 139, 140 (1992). The ballot title must present the voter “with a fair understanding” of the issue presented. Ferstl v. McCuen, 296 Ark. 504, 509, 758 S.W.2d 398, 400 (1988).
In summary, the ballot title must accurately and honestly disclose the text of the proposal so that the public might make an informed choice.
We have also said that the Attorney General’s approval of a ballot title raises a presumption that it is sufficient, and only in a clear case should his approval be held insufficient. Plugge, 310 Ark. at 657, 841 S.W.2d at 140 (citing see Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968)). However, the Initiative and Referendum Amendment makes no mention of the review of a ballot title by the Attorney General, and it does not speak of a presumption. Also, in Fletcher the court merely stated that since the general assembly had enacted enabling legislation providing for review by the Attorney General, see Ark. Code Ann. § 7-9-107 (1987), 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 the act specifically provides for relief to them, but not opponents, by petition to this court.” Fletcher, 243 Ark. at 869, 422 S.W.2d at 701-02; but see Gaines, 296 Ark. at 519, 758 S.W.2d at 406.
The issue then is whether this court should afford the Attorney General a province of authority that is not contained in the constitution. It should not.
All power inheres in the people, but the people may not exercise all power. The will of the majority must prevail, but only if it is within the balances and limitations of the Constitution. The majority is a true sovereign, but only when held in check by those balances and limitations. It is a dualism that is institutionalized in our constitutional structure, for as the American Constitution was the first in history to incorporate the principle that men make government and that all government derives its authority from consent, it was also the first to place effective limits on government. See, Henry Steele Commager, Commager On Tocqueville 21-22 (1993).
This paradox inherent in our democracy is carried an additional step in our system of federalism. The people of a state are to be governed by the will of the majority, but that will is held in check by balances and limitations of both the United States and the state constitutions. While article 2, section 1 of the Arkansas Constitution provides that “[a]ll political power is inherent in the people and government [and] is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper,” the provision is limited by both constitutions.
Under our system of federalism the Supreme Court of the United States gives the ultimate construction of the Constitution of the United States, and the state supreme courts give the ultimate construction of state constitutions on matters of state law. At times the courts must take anti-majority positions to uphold the constitution at issue. This is the foundation of the just rule by the majority. In ballot title cases that profound responsibility cannot be shifted by the general assembly, and it cannot be passed to the Attorney General. It is basic that the responsibility is wholly in the judiciary. The only question then is one of law, and it is does the ballot title fall within or without the standards by the constitution?
III.
APPLYING THE STANDARD IN THIS CASE
The petitioners do not question the sufficiency of the ballot title description of the first three proposed categories of gambling, which include a lottery, bingo games, and raffles. The argument is over the sufficiency, scope, and fairness of the fourth and fifth categories of gambling authorized. The majority opinion seems to question the sufficiency of the fourth category and holds the fifth category manifests a fatal misleading tendency.
A. THE FOURTH CATEGORY — PARI-MUTUEL WAGERING IN GARLAND AND CRITTENDEN COUNTY
The ballot title describes the fourth category of gambling, pari-mutuel wagering on horse racing and greyhound racing, as follows:
Authorizing a pari-mutuel franchisee to conduct pari-mutuel wagering, including simulcasting and merged-pool wagering, on horses in Garland County, Arkansas, and a parimutuel franchisee to conduct pari-mutuel wagering, including simulcasting and merged-pool wagering, on greyhounds in Crittenden County, Arkansas; providing that horse racing and greyhound racing wagering thereon shall not constitute a lottery and shall be regulated by the General Assembly.
The language provides that the amendment would authorize one franchise for pari-mutuel betting on horse racing in Garland County and one franchise for pari-mutuel betting on greyhound racing in Crittenden County, with pari-mutuel betting taking place at both racetracks.
The less obvious, but equally important, question is whether the ballot title informs the voters that the proposed amendment would repeal current laws so that neither the general assembly nor the Racing Commission could authorize a franchise for horse racing in a county other than Garland, nor could the legislature or the Commission authorize a franchise for greyhound racing in a county other than Crittenden. Also of concern is whether the ballot title informs the voters that the citizens of Crittenden County would no longer be able to stop greyhound racing in that county. The ballot title provides that it is an amendment “[prohibiting all wagering activities other than those authorized by this amendment” and is an amendment “[repealing all constitutional provisions and laws to the extent they conflict with the amendment.” The language informs the voter that the proposal would grant an exclusive license to the holders of the two racetrack franchises, and anything to the contrary would be repealed. As a result, it comes within the standard for an initiated provision.
The majority opinion does not hold to the contrary, but questions the fact that there is no express disclosure that the citizens of Crittenden County could no longer vote to stop greyhound racing. It is not necessary for the ballot title to discuss in detail the law repealed. While we must first determine the changes a proposal would make before determining the sufficiency of a petition, there is no requirement that those changes be specifically set out in the ballot title. Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958).
B. THE FIFTH CATEGORY — ADDITIONAL WAGERING AT THE TWO EXCLUSIVE FRANCHISES
Petitioners’ principal argument is that the ballot title is misleading because the voter is being asked to approve casino-style gambling, but the word “casino” does not appear in the section defining authorized activities. The majority opinion embraces this argument. The question of law is whether the ballot title adequately informs the voter that he or she is being asked to approve the various kinds of gambling that are proposed to take place at the two exclusive franchises.
Contrary to the holding of the majority opinion, the popular name of the proposal suggests the correct answer to the issue. It is, “An amendment to authorize a state lottery, nonprofit bingo, pari-mutuel wagering and additional games of chance at racetrack sites.” (Emphasis added.)
The ballot title states that the proposal is an amendment: “Authorizing pari-mutuel franchisees to conduct additional wagering on or adjacent to the sites where horse racing is conducted in Garland County, Arkansas, and where greyhound racing is conducted in Crittenden County, Arkansas.” The language plainly states that the wagering authorized, in addition to the pari-mutuel wagering, would take place in either some part of the existing racetrack facilities, or in some facility adjacent to the racetrack sites. A “casino” is defined in Webster’s International Dictionary as “1. a small country house. 2. a building or room used for social meetings, or public amusements, for dancing, gaming, etc.” Webster’s International Dictionary, 416 (2d ed. 1953). It is defined in Webster’s Third New International Dictionary as “1. a building or room used for social meetings and public amusement (as dancing; (specif.); a building or room for gambling.” Webster’s New International Dictionary, 347 (3d ed. 1961). In the context of a building or room, the ballot title provides all the information that the word “casino” would provide. That is, some part of the currently existing buildings at the racetracks or some building or room adjacent to the current facilities would be used for gambling. The language sufficiently apprises the voter of the location, scope, and extent of the buildings proposed to be used for the “additional wagering.”
The majority opinion, however, states that the voter will not be informed that the buildings will contain such games as “video poker, slot machines, roulette wheels, blackjack, craps, poker, and other games of chance” are proposed for the buildings located at or adjacent to the current facilities. The rhetoric of the majority opinion ignores the plain language of the ballot title. The ballot title plainly states that the two holders of the two race track franchises would be authorized to “conduct additional wagering.” It then defines this “additional racetrack wagering” as “wagering on games of chance or skill conducted by mechanical, electrical, electronic or electromechanical devices and table games; providing that this additional racetrack wagering shall not be limited to when racing is being conducted and shall not constitute a lottery.”
The majority opinion holds that the phrase “additional racetrack wagering” is misleading partisan coloring that should void the proposal. The argument might well be valid if “additional racetrack wagering” stood alone and was not defined, but the phrase is defined as wagering on games of chance or skill and table games whether conducted electrically, mechanically, or electromechanically at the racetrack sites. Such a definition informs the voter that gambling on various games of chance or skill is proposed for each of the two locations. It is not necessary that the specific games of chance be specified. In summary, the fifth category of gambling, wagering on games of chance at the race tracks, in addition to pari-mutuel betting on races, meets the requirements for a ballot title.
The majority opinion also holds that the sequence the information is placed in the ballot title prevents the voter from understanding the issue. The ballot title follows the order of the text of the amendment. That is how it should be. The majority opinion cites no authority to the contrary.
IV.
CONCLUSION
The ballot title accurately discloses that the proposed amendment would amend the present constitution to authorize five forms of gambling. It discloses that pari-mutuel betting at two race track sites, one to be located in Garland County and the other in Crittenden County, would be authorized through exclusive state franchises. It discloses that additional games of chance or skill would be authorized at the sites of the two racetracks. Proposals submitted under the Initiative and Referendum Amendment are to be “construed with some degree of liberality in order that its purposes may be well effectuated.” Leigh v. Hall, 232 Ark. 558, 566, 339 S.W.2d 104, 109 (1960) (quoting Reeves v. Smith, 190 Ark. 213, 215, 78 S.W. 72, 73 (1935)). Yet, the majority opinion holds that the ballot title is so misleading that it cannot be understood by the voter. I respectfully dissent from that holding.