dissenting. In constitutional cases dealing with what is obscenity, it has been said that obscenity is in the eyes of the beholder. Well, it can also be said that what might or might not be confusing on a General Election ballot to an Arkansas voter is determined solely through the eyes of four members of this court. In making that determination, this court may wrongly assume the average Arkansas voter is not capable of reading, studying and understanding a proposed constitutional measure and making an intelligent choice when called on to vote on that constitutional issue. That erroneous assumption, I submit, was utilized here in reviewing initiated Amendment 4. Contrary to the majority members’ view, I believe the Arkansas electorate is fully capable of sorting through the petitions, popular names, ballot titles and the text of the proposed measures and intelligently vote for or against proposed Amendment 4. In addition to these aids, voters are educated through personal contact and the media by special interests respecting opposing sides of this controversial amendment. Voters are further informed of the content and substance of initiated amendments when such proposed amendments are published, and on the day of the election, are posted on the walls of every polling precinct in the state. Ark. Code Ann. §§ 7-5-206, 7-5-301 and 7-9-113 (Repl. 1993).
Arkansas law very clearly supports the idea that Arkansas citizens intended to reserve to themselves the power to propose legislative measures, laws and constitutional amendments independent of the General Assembly. See Amendment 7 to the Arkansas Constitution. When this court is asked to remove from the ballot an amendment proposed by citizens exercising the constitutional power reserved them, it should do so cautiously and with great trepidation.
The majority is correct that a ballot title must be free from any misleading tendency, whether by amplification, omission or fallacy. However, no such amplification, omission or fallacy exists in the case here. Although the majority opinion seems intent on wanting to insert new or different wording for that already employed in the ballot title, the opinion, while stating otherwise, points to no actual words of amplification or exaggeration. Nor does the opinion say that the ballot title omitted something material that appears in the amendment. To the contrary, the majority opinion says the ballot title is too lengthy; plainly, it covers the entire subject matter contained in Amendment 4 and omits nothing of substance. In fact, of the several ballot titles submitted to this court for .review this 1994 General Election year, the one before us in this case is the most comprehensive in covering the content of its proposed initiative measure.
As to whether a fallacy exists, the majority seizes on language midway in the ballot which provides 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 PARI-MUTUEL FRANCHISEE TO CONDUCT PARIMUTUEL WAGERING, INCLUDING SIMULCASTING AND MERGED-POOL WAGERING, ON GREYHOUNDS IN CRITTENDEN COUNTY, ARKANSAS; PROVIDING THAT HORSE RACING AND GREYHOUND RACING AND PARI-MUTUEL WAGERING THEREON SHALL NOT CONSTITUTE A LOTTERY AND SHALL BE REGULATED BY THE GENERAL ASSEMBLY; 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; DEFINING THIS "ADDITIONAL RACETRACK WAGERING” AS WAGERING ON GAMES OF CHANCE OR SKILL CONDUCTED BY MECHANICAL, ELECTRICAL, ELECTRONIC OR ELECTROMECHANICAL DEVICES AND TABLE GAMES . . . (Emphasis added).
After quoting from the above, the majority concludes the Arkansas voter simply cannot read the proposal’s definitional language, “wagering on games of chance or skill conducted by mechanical, electrical, electronic or electromechanical devices and table games,” and understand casino gambling is allowed under the amendment. Arkansas voters should be insulted by the majority court’s low estimation of their intelligence. After all, what are electronic or mechanical devices and table games if they are not casino gambling paraphernalia? The majority is being extremely strict and technical in stating the word “casino” must appear somewhere in the ballot title or the voters will not understand the issue they are voting on. It is well-settled that this court is to liberally construe Arkansas’s law when reviewing the sufficiency of a ballot title — not nit-pick it to pieces.
The majority opinion altogether discards another “word argument” made by petitioner. Specifically, the majority fails to discuss petitioner’s argument that the word “monopoly” is improperly absent from the ballot title, since the effect of the proposed amendment is to sanction a monopoly for the owners of Oak-lawn and Southland racetracks. Suffice it to say, Arkansas voters, in my view, can read the ballot title and understand that Arkansas’s only two existing pari-mutuel franchises, Oaklawn and Southland racetracks, will continue as such upon Amendment 4’s adoption. The ballot title mentions “the pari-mutuel franchisee in Garland County and the pari-mutuel franchisee in Crittenden County,” thereby identifying the entities who will benefit from the proposed amendment’s passage. I suggest that a person would have to be Rip Van Winkle not to know that only two pari-mutuel franchises exist in Arkansas and that they are commonly known as Oaklawn and Southland. Arkansas law has authorized only these two pari-mutuel franchises for decades and the proposed amendment would continue past practice. The Arkansas people are well aware of these two pari-mutuel franchises, and their control of racetrack wagering in this state. Whether authorized by constitutional amendment or by statute, the present two race track franchises have had, now have and would continue to have, under the proposed amendment an exclusive franchise in wagering in this state.
It is worthwhile to mention that the majority court also fails to discuss another “word argument” urged by petitioner, namely, the use of the word “authorize” in the ballot title is misleading because “authorize” indicates the state may grant permission for a lottery when the measure actually mandates a lottery. Petitioners add that the use of the word “authorize” also suggests new power is given to the legislature to permit pari-mutuel wagering when, in fact, the legislature is already authorized to permit such wagering. Obviously, the majority saw no merit in these arguments, and I would agree.
The majority court, reduced to its sole point that the word “casino” is not mentioned in the ballot title, attempts to shore up its decision to remove Amendment 4 by seizing on petitioner’s contention that the ballot title is too long to be read and comprehended during the time alloted the voter in the voting booth. Of course, this time argument might make more sense if the other foregoing word and ballot title arguments made by petitioner had been seen as problems or deceptions the voter would have confronted when marking his or her ballot. Not so. The majority has narrowed the so-called ballot title confusion to one issue — whether the voter is capable of understanding that “wagering on games of chance or skill” by using “mechanical, electrical, electronic or electromechanical devices and table games” constitutes casino gambling?
The majority actually penalizes the drafters, including the Attorney General, for having the ballot title cover the entire text of the measure. If a part (or parts) of the measure had not been referred to in the ballot title, petitioner would surely have questioned as misleading the title’s having omitted that part. All agree, length alone has never been a sufficient reason to invalidate a ballot title. In fact, this court has upheld a challenge to the sufficiency of a ballot title which was about 900 words long. The proposed amendment in Bailey involved a complex refunding measure involving bonds. Bailey v. Hall, 198 Ark. 815, 131 S.W.2d 635 (1939); see also Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938) (court upheld ballot title containing 735 words). Here, the ballot title is only 709 words in length, and the text covering proposed Amendment 4 is nowhere close to the complexity found in the measure and ballot title in Bailey.
In past decisions, this court has recognized the difficulty in preparing a perfect ballot title, and it has held that a title is sufficient if it informs the voters with such clarity that they can cast their ballot “with a fair understanding” of the issue presented. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988). The court has also held that the Arkansas Attorney General’s approval of a ballot title raises a presumption as to its sufficiency and only in a clear case should such an approval be held insufficient. Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). (Emphasis added).
Here, the Attorney General approved the proposed amendment’s ballot title, finding it not confusing or misleading. The Attorney General’s decision was not clearly wrong.
It is not the first time that I have concluded, when reviewing ballot title cases, that I have every confidence in the voters of this state to decide the fate of proposed amendments on their merits. Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990) (Glaze, Hays and Dudley, JJ., dissenting); see also Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993) (Glaze, Hays and Corbin, JJ., dissenting) (a non-ballot title case, but represents another case where four members of this court found the voters and citizens could not have understood the issue they voted on). More times than not, such proposed measures are controversial and invite partisan charges and counter-charges. However, so long as the voter can have a “fair understanding” of the issue involved, this court should allow the people their constitutional right to vote on the proposed amendment. To do otherwise serves to undermine our democratic form of government.
Like the Attorney General, it is in no way clear to me that the Arkansas people cannot cast an intelligent vote on the merits of Amendment 4. Therefore, I would deny the petitioners request to remove the measure from the General Election ballot.
In conclusion, I would note that the petitioners requested this court to enjoin the Secretary of State from placing this proposal on the 1994 General Election ballot or if the ballot is already prepared, that no votes on the issue be counted. Presumably the Secretary of State has already certified Amendment 4 since absentee ballots will be mailed and voted soon. See Ark. Code Ann. 7-5-401 — 417 (Repl. 1993); see also Ark. Code Ann. § 7-9-115(a) (not less than eighteen (18) days before the election, the Secretary of State shall furnish the State Board of Election Commissioners and county boards of election commissioners a certified copy of the ballot title and popular name of each proposed measure). When the Secretary of State certifies the proposed amendment, the county boards of election commissioners are mandated to take cognizance of the proposed amendment. Ark. Code Ann. § 7-9-115(b). To confuse matters, the county boards of election commissioners are not parties to this action and therefore are not before this court so they can be directed not to count ballots that have been duly prepared and voted. It appears to me that the only relief this court can lawfully give petitioners is to issue a mandamus to the Secretary of State, who is a party to this action, to reject canvassing and certifying the returns on Amendment 4. See Ark. Code Ann. § 7-9-119(d) (Repl. 1993). The majority opinion effectively grants relief under § 7-9-119(d) without the petitioners having asked for it. Whether petitioners requested such relief does not trouble me, but the fact the county boards are not parties to this action does because without them as parties, they are still statutorily required not only to place the measure on the ballots, but also have the ballots counted, tabulated, canvassed, returned and certified to the Secretary of State. Ark. Code Ann. §§ 7-9-117 and -119 (Repl. 1993).
This problem of being able to grant effective and timely relief to a successful petitioner under Amendment 7 was presented to this court in the Finn case, cited above, where this court struck down the General Assembly’s efforts to enact a law, Act 280 of 1989, which provided reasonable timetables in dealing with initiative and referendum measures to be placed on the General Election ballots. This court was wrong in Finn and problems continue to abound.
Hays, J., joins this dissent.