THE BRIEF: Explaining the Ballot Title Review Process

Griffin: Ballot title review law ‘well-defined and well-developed’

LITTLE ROCK – Today Attorney General Tim Griffin published the following briefing regarding the Office of Attorney General’s role under Act 194 of 2023:

“There’s been a lot of talk lately about the ballot title review process. The Arkansas Constitution allows citizens to put certain issues on the ballot for citizens to vote on. Generally speaking, Arkansans have to gather a lot of signatures to put an issue on the ballot.

“Arkansas law requires those issues to have an understandable name and a title—which is where my office comes in. Under the law, we review the issue’s name—referred to as the ‘popular name.’ We also review the issue’s title, which can be really long. The title is supposed to summarize what you’re voting on.

“In March, the General Assembly passed Act 194 of 2023 with an emergency clause. Act 194 requires sponsors of statewide ballot issues to bring their popular name and ballot title to my office for certification. Not a single member of the General Assembly voted against this law. I believe that one reason nobody opposed this law is that it simply restores a 75-year-old law that was well-defined and well-developed,” said Griffin.

For more than 75 of the past 80 years, the Attorney General had ballot title review authority. The Arkansas legislature first charged the Attorney General with reviewing ballot titles through Act 195 of 1943. Except for a three-year period (Act 376 of 2019), the Attorney General has been reviewing ballot titles and popular names ever since.

In March 2023, ballot title review authority was returned with Act 194 and its emergency clause. Act 194 of 2023 returned the review to the Attorney General using—with one clarification that matched prior practice—the exact same language as the law that was originally enacted in 1943. The act passed the House of Representatives on February 21 by a vote of 97-0. The Senate passed the bill unanimously on March 1. Governor Sanders signed it into law on March 6, becoming effective that day due to it having an emergency clause. (“HB1320 Status;” “House Vote – Tuesday, February 21, 2023 2:17:19 PM;” “Senate Vote – Wednesday, March 1, 2023 2:54:01 PM,” Arkansas State Legislature, accessed 5/11/23)

What does the Attorney General look for in the review? This office’s review is entirely about whether popular name and ballot title are legally sufficient. Under Arkansas law, a popular name and ballot title are legally sufficient when they adequately summarize the underlying law so that voters can get a fair understanding of what they are being asked to support or oppose.

Does the Attorney General’s personal opinion affect the review process? The Attorney General’s review is about whether that summary is fair, impartial and complete. Any personal views about the merits of the proposal have no bearing on the review.

If the Attorney General rejects a ballot title, is there a place to find out why? If you hear that the Attorney General has rejected a ballot title, and you wonder why, you can come to the office’s website and read the opinion that explains all the reasons.

How long does the Attorney General have to review a ballot title submission? The law requires the Attorney General to complete the review within 10 business days. While sponsors of proposed ballot titles may desire a complete review faster than 10 business days, the people of Arkansas are owed a review not just quickly but also correctly. In keeping with the practice of predecessors, to ensure an accurate and thorough review, the Attorney General nearly always uses the full 10 business days to issue an opinion.

How does the ballot review Process Work? There are five steps in the ballot review process the Attorney General’s Office follows:

• Step 1—Filing.
The sponsor submits the “original draft” to the Attorney General. The original draft includes three things: the proposal’s

1. Text
2. Popular Name, and
3. Ballot Title.
   

• Step 2—Proof of Filing.
Once the filing is received, the ballot title sponsor will be given a file-marked copy of the original draft immediately. This file-marked copy is proof the sponsor complied with the requirement to seek AG review.

• Step 3—Review.
Next is the actual review itself. Attorneys in the Attorney General’s Office who are experts in the law governing popular names and ballot titles will review the submission to determine whether it complies with Arkansas law. These experts have reviewed numerous ballot title submissions for both Democratic and Republican attorneys general.

• Step 4—Formal Decision.
Under the law, the Attorney General has only 10 business days to decide on the ballot title submission and to respond in writing saying what that decision is. The sponsor will receive a written response, which will take one of three actions:

1. Certifying the popular name and ballot title as submitted;
2. Substituting and certifying a more appropriate popular name or ballot title; or
3. Rejecting the entire submission, giving the reasons for the rejection and instructing the sponsor to redesign the measure.
   

• Step 5—Next Steps.
After Step 4, the sponsor is in the driver’s seat for the final step.

1. If certified: If the proposal has been certified, then the sponsor may begin collecting signatures. But if the proposal was certified with substituted language, and the sponsor doesn’t like that language, they can resubmit their proposal for further review.
2. If rejected: If the proposal was rejected, then the sponsor can either (1) redesign the measure to fix the problems and re-submit the revised version for review; or (2) sue the office in the Arkansas Supreme Court.