Arkansas has statutory and constitutional initiatives, veto referendums, and legislatively referred amendments. The timing of an election can vary depending on the kind of ballot measure; while measures are generally submitted at regular general elections, the people may petition for a special election on a veto referendum. The process for developing ballot language also varies depending on whether a ballot measure is initiated via voter petition or referred by the legislature. While Arkansas’ constitutional and statutory provisions contain few explicit guidelines as to the ballot language content, pre-election judicial review may be sought by any registered voter, regardless of the type of ballot measure, and the Arkansas Supreme Court has held that, at a minimum, ballot language may not be fraudulent.
BACKGROUND INFORMATION
What forms of direct democracy are available, and when?
Statewide Ballot Measures in Arkansas
Arkansas has statutory and constitutional initiatives, veto referendums, and legislatively referred amendments.
√ Initiatives – Statutory
√ Initiatives – Constitutional
The people of Arkansas have reserved the initiative power to propose and enact laws and/or amendments to the state constitution independently of the legislature. Ark. Const. art. 5, § 1. The Arkansas Constitution also provides that no measure approved by a vote of the people shall be amended or repealed by the General Assembly except upon a vote of 2/3 of all members elected to each house. See id.
√ Veto Referendums
Arkansans also have the referendum power to approve or reject any act of the General Assembly, or any section thereof, or any item of an appropriation bill. See Ark. Const. art. 5, § 1.
√ Legislatively Referred Amendments
An amendment to the state constitution proposed by the Arkansas legislature must be approved by voters. See Ark. Const. art. 19, § 22.
Election Timing
The timing of an election can vary depending on the kind of ballot measure. While measures are generally submitted at regular general elections, the people may petition for a special election on a veto referendum.
- An initiative must be submitted at a “regular” election, which Arkansas statutes define to mean a regular general election at which state and county officers are elected to general terms. See Const. art. 5, § 1; Ark. Code Ann. § 7-9-101(4).
- A veto referendum may be submitted at a regular election but may also instead be submitted at a special election called by the proper election official, if 15% of all legal voters petition for a special election. Ark. Const. art. 5, § 1; see also Code Ann. § 7-11-201 et seq.
- A legislatively referred amendment must be submitted to Arkansas voters at the “next general election for Senators and Representatives” after it is approved by a majority of all members elected to each house of the legislature. Const. art. 19, § 22.
BALLOT PREPARATION
What is included on the ballot, and who prepares it?
The ballot for any statewide ballot measure in Arkansas must display the following.
- Popular name. Ark. Code Ann. § 7-9-117(a).
- Ballot title. sub. (b).
- For initiatives and veto referendums, the ballot title must “briefly and concisely state the purpose of the proposed measure.” Code Ann. § 7-9-107(d)(2). The full text, the popular name, and the proposed ballot title are submitted by sponsors when initially filing their petition to the Attorney General, before petitions are circulated for signatures. See Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-107.
- Within ten days, the Attorney General must certify that the sponsor filed the ballot title and popular name in compliance with the law, or substitute and certify “a more suitable and correct” title and popular name. Ark. Code Ann. § 7-9-107(d)(1). If the Attorney General finds the ballot title and popular name submitted by sponsors to be misleading, they may “reject the entire ballot” and “instruct the petitioners to redesign the proposed measure and the ballot title and popular name in a manner that would not be misleading.” Id. sub. (e).
- For legislatively referred amendments, the legislature’s underlying joint resolution may designate the popular name and ballot title. Ark. Code § 7-9-204.
- For initiatives and veto referendums, the ballot title must “briefly and concisely state the purpose of the proposed measure.” Code Ann. § 7-9-107(d)(2). The full text, the popular name, and the proposed ballot title are submitted by sponsors when initially filing their petition to the Attorney General, before petitions are circulated for signatures. See Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-107.
INFORMATION TO VOTERS
What information is provided to voters before the election, and how?
Publication
For any state ballot measure, the Secretary of State is charged with publishing notice in two weekly issues of some newspaper in each county. Ark. Code § 7-9-113(a)(1), (b)(1). The details of the publication vary somewhat based on the type of ballot measure, as follows.
- For initiatives and veto referendums, publication of notice must commence eight weeks before the election. Code § 7-9-113(b)(2)(B). At least one notice must contain the measure’s number, popular name, ballot title, and a website where the full text of the measure can be found. Id. sub. (c)(2)(A)-(B). The measure’s sponsors must reimburse the Secretary of State for publication expenses. See id. at sub. (a)(2); see also Ark. Const. art. 5, § 1.
- For legislatively referred amendments, publication of notice must commence six months before the election. Const. art. 19, § 22; Ark. Code Ann. § 7-9-113(b)(2)(A). At least one notice must contain the number, popular name, ballot title, and the complete text of the amendment to be submitted. Ark. Code Ann. § 7-9-113(c)(1).
Voter Information Pamphlet
- Arkansas law does not require a state voter information pamphlet about specific state ballot measures.
- Although Arkansas law does not require a formal voter information pamphlet, for initiatives and veto referendums, the Arkansas Attorney General must provide a concise abstract of the contents of the measure. Ark. Code Ann. § 7-9-114(a). The abstract must be printed and posted conspicuously in polling places. at sub. (b).
JUDICIAL REVIEW
When and how can the court step in?
- For initiatives and veto referendums, any registered voter (or a measure’s sponsor) has a right to petition to the Arkansas Supreme Court to challenge the Secretary of State’s determination of insufficient signatures on a petition. Code Ann. § 7-9-112(a). The court must act expeditiously to review the sufficiency of the signatures. Id. sub. (b).
Arkansas statutes used to provide a similar right of action to challenge ballot title determinations. See H.B. 1320, 94th Gen. Assemb., Reg. Sess. § 4 (Ark. 2023) (amending Ark. Code Ann. § 7-9-112(a)). But now, only a measure’s sponsors may petition the Arkansas Supreme Court to challenge a ballot title determination made by the Attorney General. Ark. Code Ann. § 7-9-107(f). In challenges to the sufficiency of ballot title or popular name language under a prior version of the statute which allowed for challenges regarding ballot language sufficiency, the Arkansas Supreme Court asked whether the title adequately describes the proposed measure and whether the measure is misleading as opposed to intelligible, honest, and impartial. See, e.g., Armstrong v. Thurston, 652 S.W.3d 167, 175–77 (Ark. 2022).
Sample cases: Kurrus v. Priest, 29 S.W.3d 669, 675, 678 (Ark. 2000) (holding ballot title failed to convey the scope and import of the measure and was misleading; enjoining placement on the ballot); Armstrong v. Thurston, 652 S.W.3d 167, 174, 178 (Ark. 2022) (holding the State Board of Election Commissioners lacked authority under the state constitution to decline to certify a ballot title as insufficient and finding challenged ballot title to be sufficient).
- For legislatively referred amendments, any qualified elector may file an action in any court of competent jurisdiction to challenge the sufficiency of the legislative resolution, including the text of the proposed amendment itself, the ballot title, and the popular name. See Code § 7-9-205. In reviewing the ballot language, the Arkansas Supreme Court has asked whether the language sufficiently distinguishes and identifies the legislatively proposed constitutional amendment and whether it is a manifest fraud upon the public. See, e.g., Steele v. Thurston, 609 S.W.3d 357, 362–63 (Ark. 2020).
Sample case: Steele v. Thurston, 609 S.W.3d 357, 363 (Ark. 2020) (finding ballot title was sufficient and did not reflect “manifest fraud” upon the public).