Education on legal issues matters
On Sept. 25, I rejected the ballot title for a proposed initiated act that would have created a sales-tax exemption for feminine-hygiene products. I gave my reasons in a written opinion, the sponsor of the proposal resolved the issues I noted, and I promptly certified a modified version of the ballot title on Oct.10. That’s exactly how the process has worked for most of the past 80 years, and I am proud of the work my office does to ensure that Arkansans have accurate information in the voting booth.
While this process was proceeding normally, on Oct. 8, a regular columnist for this newspaper wrote an entire column decrying my decision to reject the first ballot title submission. The column—like so much else the author writes about my office’s work—was high on certainty but low on accuracy.
The columnist either failed to read my full opinion, didn’t understand it, or chose to misrepresent it. I owe it to my team of outstanding public servants to set the record straight. To explain why the column was so off base, I will have to summarize some of the law governing ballot titles.
Under our state constitution, citizens who want to create law through direct democracy must summarize the proposed law. That summary is called a ballot title. Since 1943 (with the exception of one recent three-year period), the Legislature has required the attorney general to review proposed ballot titles to ensure they aren’t misleading. As my opinion notes, in 1994 the Arkansas Supreme Court reached a decision in Bailey v. McCuen, which declared that a ballot title isn’t a fair summary when it omits an “essential fact which would give the voter serious ground for reflection.”
The sponsor of this ballot title said he had merely copied a similar bill from the 2021 General Assembly, but he omitted key language from that bill. That omission created a question about whether the sponsor was trying to remove Arkansas from the interstate compact that enables Arkansas to collect sales tax on most online purchases.
The column argued that I was making my certification of the ballot title “contingent” on whether the initiated act would conflict with the interstate compact. Not so. As I stated in the opinion—indeed, as I stated in a line from the opinion quoted directly by the columnist—the sponsor is perfectly free to propose an initiated act that conflicts with the interstate compact. But if that is the effect of the proposal, then the ballot title would need to reference the change. Dropping out of the compact would be an “essential fact” that would give voters “serious ground for reflection.”
Attorneys general from both parties have rejected ballot titles on this basis hundreds of times. They have done so because this is the approach required by the Arkansas Supreme Court—something the columnist would have known if he’d just read the first sentence on page three of the opinion. (The whole thing is only five pages—and that’s counting a page with just my signature!)
As attorney general, I am always happy to see this paper devote space to educating the public about legal issues. But a ready-fire-aim column does not help an uniformed reader; it creates a misinformed reader.