Opinion No. ( 2003 )

Mr. Barry L. Emigh 1104 7^th 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. 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 four similar measures, as evidenced by Ops. Att'y Gen. Nos. 2003-054; 2002-140; 2001-196; and 2001-129. You have since made additional changes to your measure and have submitted a revised popular name and ballot title for my certification. Your proposed popular name and ballot title state:

Popular Name

AN AMENDMENT PERMITTING THE OPERATION OF BINGO, RAFFLES, GAMBLING AND STATE — OPERATED LOTTERIES

Ballot Title

AN AMENDMENT TO THE ARKANSAS CONSTITUTION PERMITTING NON-PROFIT ORGANIZATIONS INCORPORATED IN THE STATE TO OPERATE BINGO AND RAFFLES; EMPOWERING THE GENERAL ASSEMBLY TO OPERATE A LOTTERY OR LOTTERIES INCLUDING LOTTERIES OPERATED IN COOPERATION WITH OTHER STATES WITH THE STATE-WIDE SALE OF LOTTERY TICKETS THEREBY SIGNIFICANTLY CHANGING THE LOTTERY PROHIBITION CONTAINED IN ARKANSAS CONSTITUTION ARTICLE 19 SECTION 14 AFFECTING GAMBLING; 120 DAYS AFTER PASSAGE OF THIS AMENDMENT ANY BUSINESS PERMITTED TO SELL AND SERVE OPEN CONTAINERS OF ALCOHOLIC BEVERAGES SHALL BE PERMITTED TO OPERATE GAMBLING DURING PERMITTED HOURS OF ALCOHOLIC BEVERAGE SALES; VESTING THE GENERAL ASSEMBLY, UNLESS PROVIDED OTHERWISE BY THIS AMENDMENT, WITH THE POWER TO REGULATE, LICENSE AND TAX BINGO, RAFFLES AND GAMBLING; PROVIDING THE VOTERS OF ANY COUNTY, CITY OR TOWN UNDER AMENDMENT 7 OF THE ARKANSAS CONSTITUTION TO ACCEPT OR REJECT BINGO, RAFFLES, LOTTERY TICKET SALES AND GAMBLING AS A LOCAL MEASURE; PROVIDING FOR THE LEGAL SHIPMENT OF GAMBLING DEVICES; DEFINING "BINGO" AS THE RISKING OF MONEY ON A GAME PLAYED WITH NUMBERED CARDS CORRESPONDING 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 EXCLUDING 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 EXCLUDING THE OPERATION OF A LOTTERY, BINGO AND RAFFLES; 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 AND FURTHER LAWS, RULES AND REGULATIONS TO THE ENFORCEMENT OF THIS AMENDMENT; 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 ballot title due to ambiguities in the text of your proposed measure. A number of additions or changes to your 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 ballot title pursuant to A.C.A. § 7-9-107(b).

I refer to the following ambiguities:

1. Section 1(2) of your proposed amendment states that "[t]he General Assembly shall be empowered to facilitate the State's operation of a lottery or lotteries. . . ." This language is ambiguous in that it is unclear whether the General Assembly must create a state lottery or lotteries or whether it has the discretion to decline to create any such lottery. This ambiguity is compounded by language in Section 4 of your proposed amendment, which states that "[t]he General Assembly shall be required to make any and all other laws, rules and regulations to the enforcement of this Constitutional Amendment."

2. Section 1(3) of your proposed amendment states that "[b]eginning one hundred and twenty (120) days after passage of this amendment any business permitted to sell and serve open containers of alcoholic beverages shall be permitted to operate gambling during the permitted hours of alcoholic beverage sales." The use of the phrase "open containers" is ambiguous in this Section. Arkansas law does not utilize this phrase in connection with licensure and permitting of businesses selling alcoholic beverages. It is therefore uncertain exactly to what businesses this section refers.

3. Section 1(4) of your proposed amendment states that "[u]nless provided for differently within the provisions of this amendment the General Assembly shall have absolute power to regulate, license and tax the operation of bingo, raffles and gambling." An ambiguity may arise as to the General Assembly's power to exercise similar powers over the lottery or lotteries. This language is substantially broader than the language in Section 1(2) wherein the General Assembly is" empowered to facilitate the State's operation of a lottery or lotteries. . . ."

4. Section 1(5) of your proposed amendment states that "[t]he voters of any county, city or town under Amendment 7 of the Arkansas Constitution can be petitioned to accept or reject bingo, raffles, lottery ticket sales and gambling as a local measure." Several ambiguities arise from this subsection. First, the language "can be petitioned" is somewhat confusing. Under Amendment 7, voters of a county or municipality may themselves "petition" in order to effect a local initiative or referendum measure. If successful, a vote of the electorate is held. The voters are not thereby "petitioned." Second, the use of the words "under Amendment 7" leads to an ambiguity. Under that Amendment the voters of a county or municipality may initiate local legislation or bring about a referendum vote on a local legislative measure. Amendment 7, strictly speaking, does not address the ability of the voters of a municipality or county to opt whether a state law, in this case a constitutional amendment, shall apply to them. Your amendment is therefore ambiguous as to what form a local measure of this nature would take. I cannot determine, in this regard, whether your proposed amendment contemplates the initiation, by the people, of an ordinance on the topic. Third, the use of the words "accept or reject" leads to an ambiguity in that it is unclear what the status in a particular locality will be absent any action by the voters. Will all forms of wagering authorized by the proposed amendment be lawful in a particular locale until and unless rejected by the voters? Or will local voters have the opportunity to forestall the implementation of these types of wagering in their community from the outset? The ambiguity is compounded by the fact that Section 4 of your amendment makes the amendment effective immediately (except as otherwise specified). Although there is a one hundred and twenty day delay before "gambling" will be authorized, the other forms of wagering will evidently be authorized upon passage. This issue will give the voters serious ground for reflection in deciding whether to vote for your proposal. Fourth, an additional ambiguity arises from this subsection as to whether the local voters must either adopt or reject all forms of wagering listed in Section 5, i.e., "bingo, raffles, lottery ticket sales and gambling," or whether the local voters may pick and choose which of these types of wagering to authorize.

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 recently 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 matters 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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