Opinion No. ( 2004 )

Mr. Oscar Stilley Attorney at Law 5111 Rogers Avenue, Ste. 520 Fort Smith, AR 72903-2041

Dear Mr. Stilley:

This is in response to your request for my certification with respect to a proposed referendum measure on Act 107 of 2003 (2d Ex. Sess). Your request is submitted pursuant to A.C.A. § 7-9-107 (Repl. 2000). The popular name and ballot title for your proposed referendum is as follows:

Popular Name

THIS IS A REFERENDUM TO ALLOW THE PEOPLE TO VOTE ON THE NEW TAXES AND TAX INCREASES RECENTLY IMPOSED BY THE LEGISLATURE IN ACT 107

Ballot Title

A REFERENDUM TO ALLOW THE PEOPLE TO VOTE ON WHETHER TO KEEP OR TO REJECT ACT 107 OF THE 2^ND EXTRAORDINARY SESSION OF 2003. ACT 107 IS DEFINED BY THE ARKANSAS LEGISLATURE AS "AN ACT TO PROVIDE ADDITIONAL REVENUE TO FUND THE STATE EDUCATION SYSTEM; TO LEVY AN ADDITIONAL SALES AND USE TAX OF SEVEN-EIGHTS OF ONE PERCENT (0.875%); TO IMPOSE A GROSS RECEIPTS TAX ON CERTAIN SERVICES; TO INCREASE THE WHOLESALE VENDING TAX; TO CREATE THE EDUCATIONAL ADEQUACY TRUST FUND; AND FOR OTHER PURPOSES

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. In addition, subsection (c) provides that "[i]f, as a result of his review of the ballot title and popular name of a proposed initiated act or a proposed amendment to the Arkansas Constitution, the Attorney General determines that the ballot title, or the nature of the issue, is presented in such manner that the ballot title would be misleading or designed in such manner that a vote "FOR" the issue would be a vote against the matter or viewpoint that the voter believes himself casting a vote for, or, conversely, that a vote "AGAINST" an issue would be a vote for a viewpoint that the voter is against, the Attorney General may reject the entire ballot title, popular name, and petition and state his reasons therefor and instruct the petitioners to redesign the proposed measure and the ballot title and popular name in a manner that would not be misleading."

Two irregularities prevent me from certifying a popular name and ballot title for your measure.

First, your proposed popular name and ballot are in my opinion insufficient. The name and title leave room for some confusion as to the effect of a vote "for" the measure. Your popular name and ballot title each state that the measure is one to "allow the people to vote" on the taxes imposed by Act 107 and your ballot title indicates that the measure is one to "allow the people to vote on whether to keep or to reject" the Act. The wording of this popular name and ballot title may confuse some voters as to whether a vote "for" the measure is a vote "for" the Act or a vote to "reject" the act. In addition, your ballot title does not adequately summarize the provisions of Act 107. Your ballot title merely restates the legislative title of Act 107. In my opinion this is insufficient, in a referendum context, to convey to the voters a fair understanding of the issues presented. With regard to a referendum petition, the substance of the act being referred must be adequately summarized for the voters in a ballot title. See e.g., Op. Att'y. Gen.93-011 and 89-085. Merely restating the legislative title of the act is insufficient. For example, while your ballot title refers to the fact that Act 107 will impose a gross receipts tax on "certain services," it in no way informs the voters what those services are. As a consequence, I must reject your measure under A.C.A. § 7-9-107 (c).

Second, I cannot certify a popular name and ballot title for this particular referendum measure, because the deadline for submitting a referendum petition to the Secretary of State on Act 107 has passed.

The subject of your referendum measure is Act 107 of the Second Extraordinary Session of 2003. Amendment 7 to the Arkansas Constitution governs the deadline for filing statewide referendum petitions on Acts of the General Assembly. In this regard, Amendment 7 provides:

Referendum — The second power reserved by the people is the referendum, and any number not less than six per cent of the legal voters may, by petition, order the referendum against any general act, or any item of an appropriation bill, or measure passed by the General Assembly, but the filing of a referendum petition against one or more items, sections or parts of any such act or measure shall not delay the remainder from becoming operative. Such petition shall be filed with the Secretary of State not later than ninety days after the final adjournment of the session at which such act was passed, except when a recess or adjournment shall be taken temporarily for a longer period than ninety days, in which case such petition shall be filed not later than ninety days after such recess or temporary adjournment. Any measure referred to the people by referendum petition shall remain in abeyance until such vote is taken. The total number of votes cast for the office of Governor in the last preceding general election shall be the basis upon which the number of signatures of legal voters upon State-wide initiative and referendum petitions shall be computed.

* * *

If a referendum is filed against any emergency measure such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the electors voting thereon, it shall be thereby repealed.

Emphasis added.

The Second Extraordinary Session of 2003 recessed on March 4, 2004, to be reconvened on June 9, 2004. See HCR 1006 (84^th General Assembly, 2^nd Ex. Session, 2004). This recess was for a longer period than ninety days. Act 107 has different specified effective dates for different sections of the Act and contained an emergency clause. See Acts 107 of 2003 (2d Ex. Sess.) §§ 1,2,3 and 4 (effective beginning March 1, 2004); and §§ 5,6,7,8 and 9 (effective July 1, 2004). It became law on February 12, 2004 without the Governor's signature, before the legislature began its extended recess on March 4. As a consequence, the deadline for filing referendum petitions with the Secretary of State was June 3, 2004. See Op. Atty. Gen. 2004-186.

In response to your request, therefore, please be advised that I cannot issue a certification of the proposed ballot title and popular name for your measure. I must reject your submission and inform you that any resubmission in this regard would likely be rejected as untimely under the discussion outlined above.

Sincerely,

MIKE BEEBE Attorney General