Opinion No.
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Mr. Barry L. Emigh 1104 7th Street Hot Springs, AR 71913-4225

Dear Mr. Emigh:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107, of a popular name and ballot title for a proposed constitutional amendment. You have previously submitted various similar measures, some of which this office rejected due to ambiguities in the text of your proposed amendments. See Ops. Att'y Gen. Nos. 2004-062, 2003-382, 2003-328, 2003-307, 2003-295, 2003-275, 2003-258, 2003-245, 2003-232, 2003-204, 2003-169, 2003-026, 2003-008, 2002-346, 2002-335, 2002-325, 2002-308, 2002-293, 2002-272, 2002-262, 2002-242, 2002-227, 2002-208, 2002-118, 2002-102, 2002-077, 2002-042, 2002-026, 2002-001, 2001-380, 2001-358, 2001-341, 2001-173, 2001-110, 2001-095 and 2001-074. This office has revised and certified popular names and ballot titles for five similar measures, as evidenced by Ops. Att'y. Gen. Nos. 2003-351; 2003-054; 2002-140; 2001-196; and 2001-129. After my last certification (in 2003-351), you have made additional changes to your measure and have submitted a revised popular name and ballot title for my certification.

Popular Name
AN AMENDMENT PERMITTING THE OPERATION OF BINGO, RAFFLES, STATE-OPERATED LOTTERIES AND GAMBLING

Ballot Title
AN AMENDMENT TO THE ARKANSAS CONSTITUTION EMPOWERING THE GENERAL ASSEMBLY WITH THE DISCRETION TO CREATE A STATE OPERATED LOTTERY OR LOTTERIES TO INCLUDE THE STATE'S OPERATION OF LOTTERIES IN COOPERATION WITH OTHER STATES AND LOTTERIES OPERATED IN COMBINATION WITH OTHER STATES WITH THE AUTOMATIC STATE-WIDE SALE OF LOTTERY TICKETS, UNLESS OTHERWISE PROVIDED, WHICH CHANGES THE LOTTERY PROHIBITION CONTAINED IN ARKANSAS CONSTITUTION ARTICLE 19 SECTION 14; PERMITTING LOCAL OPTION ELECTIONS FOR THE ELECTORATE OF ANY CITY OR COUNTY AS PROVIDED UNDER AMENDMENT 7 OF THE ARKANSAS CONSTITUTION TO ACCEPT OR REJECT EACH OF THE FOLLOWING LOCAL BALLOT OPTIONS SEPARATELY: (1) THE OPERATION OF BINGO AND RAFFLES BY NON-PROFIT ORGANIZATIONS INCORPORATED IN THE STATE, (2) THE OPERATION OF GAMBLING BY THOSE BUSINESSES PERMITTED TO SELL ALCOHOLIC BEVERAGES DURING THE PERMITTED HOURS OF ALCOHOLIC BEVERAGE SALES TO INCLUDE THOSE BUSINESSES PERMITTED TO SELL ONLY BEER AND/OR WINE, AND (3) THE SALE OF LOTTERY TICKETS; EMPOWERING THE GENERAL ASSEMBLY, UNLESS PROVIDED FOR DIFFERENTLY, TO REGULATE, LICENSE AND TAX BINGO, RAFFLES, LOTTERIES AND GAMBLING; PROVIDING FOR THE LEGAL SHIPMENT OF GAMBLING DEVICES INTO THE STATE; DEFINING "BINGO" AS THE RISKING OF MONEY ON A GAME PLAYED WITH NUMBERED CARDS CORRESONDING [SIC] TO NUMBERED BALLS DRAWN AT RANDOM TO WIN A PRIZE OR MONEY; DEFINING "RAFFLE" AS THE RISKING OF MONEY FOR THE DISTRIBUTION OF A PRIZE AMONG PERSONS WHO HAVE PAID FOR A CHANCE TO OBTAIN A PRIZE BUT EXCLUDES MONEY AS A PRIZE; DEFINING "LOTTERY" AS THE TYPICAL FORM OF A LOTTERY CHARACTERIZED BY THE ARKANSAS SUPREME COURT WHICH INVOLVES THE SALE OF A LARGE NUMBER OF CHANCES RELATIVE TO THE SELECTION OF A SMALL NUMBER OF WINNERS BY A DRAWING DETERMINED BY CHANCE ALONE; DEFINING "GAMBLING" AS THE RISKING OF MONEY BETWEEN PERSONS WHERE ONE IS LOSER AND OTHER GAINER WITH GAMES OF CHANCE, SKILL AND ANY COMBINATION THEREOF, BUT EXCLUDES THE OPERATION OF A LOTTER [SIC], BINGO AND RAFFLES; DEFINING "ALCOHOLIC BEVERAGES" AS ALL INTOXICATING LIQUORS OF ANY SORT TO INCLUDE BEER AND WINE; THE PROVISIONS OF THIS AMENDMENT SHALL TAKE EFFECT IMMEDIATELY UPON PASSAGE OF THIS AMENDMENT EXCEPT AS OTHERWISE PROVIDED AND REQUIRING THE GENERAL ASSEMBLY TO MAKE ALL OTHER LAWS TO THE ENFORCEMENT OF THIS AMEDNMENT [SIC]; MAKING THE AMENDMENT SEVERABLE AND REPEALING ALL LAWS AND CONSTITUTIONAL AMENDMENTS 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 your proposed popular name and ballot title due to ambiguities in the text of your proposed measure. A number of additions or changes to your popular name and ballot title are, in my view, necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

I refer to the following ambiguities:

• Section (1)1 of your proposed amendment provides:

Unless provided for differently within the provisions of this amendment the General Assembly shall be empowered wth [sic] the discretion to create a State operated lottery or lotteries to include the discretion to create a State-operated lottery or lotteries in cooperation with the lotteries operated by other states and/or lotteries operated in combination by other states with the automatic State-wide sale of lottery tickets.

This provision is confusing in that it is unclear whether the closing phrase "with the automatic State-wide sale of lottery tickets" refers to the State of Arkansas or to some other state that allows state-wide sales of lottery tickets. I assume, but should not have to infer, that your previous capitalization of the term "State" only when referring to Arkansas means that the phrase "State-wide sale" likewise refers to Arkansas. If so, this section appears to conflict with § 2(c), which suggests that the state-wide sale of lottery tickets might be foreclosed by local option elections.

It is further unclear what you mean by the term "automatic" in this phrase. It is unclear from this passage whether you mean to suggest that upon legislative endorsement statewide sale of lottery tickets will "automatically" commence (a rather novel proposition) or whether you mean only to suggest that subsequent sales of lottery tickets statewide has been authorized. If, as I suspect, you intend to propose that the legislature's establishment of a lottery will automatically permit the sale of tickets statewide, subject to the right of local voters to reject such sales, you should say so directly.

I should note that much of the above criticism is almost verbatim the same as my criticism of your previous submission in Ark. Op. Att'y Gen. No 2004-062. As I have previously advised you, don't resubmit proposed amendments without addressing the ambiguities I have previously pointed out to you.

• Section (1)2 of your proposal provides:

Beginning one [sic] and eighty (180) days after passage of this amendment the governing body of any city or county may call a local option election or anyone may petition the qualified voters within any city or county as provided under Amendment 7 of the Arkansas Constitution to initiate a local option election for the electorate within the respective jurisdiction to accept or reject each of the following:

(a) The operation of bingo and raffles by any non-profit organization incorporated in the state.

(b) The operation of gambling by any business permitted to sell alcoholic beverages for on-premise consumption during the permitted hours of alcoholic beverage sales to include those businesses permitted to sell only beer and/or wine.

(c) Upon operation of a State operated lottery with the automatic State-wide sale of lottery tickets, as provided in (1) of this Section, a local option election may be called to accept or reject the sale of lottery tickets within the respective jurisdiction.

(Emphasis in original.)

The introductory passage of this section is confusing in that it fails to include the word "hundred" after "one."

This section is further confusing in that you fail to specify how "anyone may petition the qualified voters . . . to initiate a local option election. . . ." The referenced Amendment 7 contains no provision whereby individuals are authorized to petition voters. With respect to county and municipal matters, the petition is directed to the County Election Board, not to voters.

Furthermore, this section is confusing in suggesting that the local option election will enable voters "to accept or reject" the sale of lottery tickets. If the legislature's approval of a state-wide lottery will in fact "automatically" authorize the sale of lottery tickets throughout the state, why would a city need to vote to "accept" the lottery?

Read together, § 1 and § 2(c) are confusing in that, whereas § 1 arguably authorizes "the automatic State-wide sale of lottery tickets," § 2(c) appears to authorize political subdivisions to vote down the sale of lottery tickets.

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 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,341 Ark. 813, 20 S.W.3d 376 (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). You may, after clarification of the matter discussed above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at your convenience. I anticipate, as noted above, that some changes or additions to your submitted ballot title may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.

Sincerely,

MIKE BEEBE Attorney General

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