May v. Daniels

194 S.W.3d 771, 359 Ark. 100
Supreme Court of Arkansas·Decided October 7, 2004·No. 04-895·Published·Cited by 21 cases

Opinions

Donald L. Corbin, Justice.

Petitioners Ronald A. May, Susan E. May, and Gayle Bradford have filed an original action asking this court to declare the popular name and ballot title of Proposed Amendment 3 insufficient and to enjoin Respondent Arkansas Secretary of State Charlie Daniels from placing the measure on the ballot for the November 2, 2004 General Election. The proposed amendment is sponsored by Intervenors Jerry Cox and Chris Stewart, acting individually and on behalf of the Arkansas Marriage Amendment Committee. Our jurisdiction to determine this matter is pursuant to Amendment 7 to the Arkansas Constitution and Ark. Sup. Ct. R. 6-5(a). We deny the petition.

The text of Proposed Amendment 3 is as follows:

SECTION 1: Marriage
Marriage consists only of the union of one man and one woman.
SECTION 2: Marital Status
Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the Legislature may recognize a common law marriage from another state between a man and a woman.
SECTION 3: Capacity, rights, obligations, privileges, and immunities
The Legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage.

The initiative’s popular name is “AN AMENDMENT CONCERNING MARRIAGE.” Its ballot title, which mirrors the text of the initiative, is as follows:

A PROPOSED AMENDMENT TO THE ARKANSAS CONSTITUTION PROVIDING THAT MARRIAGE CONSISTS ONLY OF THE UNION OF ONE MAN AND ONE WOMAN; THAT LEGAL STATUS FOR UNMARRIED PERSONS1 WHICH IS IDENTICAL OR SUBSTANTIALLY SIMILAR TO MARITAL STATUS SHALL NOT BE VALID OR RECOGNIZED IN ARKANSAS, EXCEPT THAT THE LEGISLATURE MAY RECOGNIZE A COMMON LAW MARRIAGE FROM ANOTHER STATE BETWEEN A MAN AND A WOMAN; AND THAT THE LEGISLATURE HAS THE POWER TO DETERMINE THE CAPACITY OF PERSONS TO MARRY, SUBJECT TO THIS AMENDMENT, AND THE LEGAL RIGHTS, OBLIGATIONS, PRIVILEGES, AND IMMUNITIES OF MARRIAGE.

On March 12, 2004, the Attorney General issued an opinion approving the popular name and ballot title and concluding that they accurately and impartially summarize the provisions of the proposed amendment. That same date, Respondent also certified the sufficiency of the popular name and ballot title. Thereafter, Intervenors collected sufficient signatures to place the proposed amendment on the ballot. On July 22, Respondent announced that the signatures were sufficient and certified the proposed amendment to be placed on the ballot for the November 2 General Election. Petitioners filed this original action on August 26, and we heard oral argument on September 23.

Petitioners note at the outset that they are not challenging the wisdom or folly of the proposed amendment, as they concede that such a challenge is not proper at this time. Rather, they challenge the sufficiency of the information supplied to the voters in the measure’s popular name and ballot title. They argue that the popular name is insufficient because it contains partisan language and misleads the voter into believing that the proposed amendment deals exclusively with marriage. As for the ballot title, Petitioners argue that it is vague and misleading and that it does not inform voters of the consequences of voting for the proposed amendment.

I. Popular Name

For their first point, Petitioners argue that the popular name, “An Amendment Concerning Marriage,” is misleading because it deceptively and inaccurately declares that the amendment only addresses marriage, while it actually has a broader effect. They contend that although the popular name adequately describes Section 1 of the proposed amendment, it ignores Sections 2 and 3.

The standard for reviewing an initiative’s popular name is well settled. The popular name is primarily a useful legislative device that need not contain the same detailed information or include exceptions that might be required of a ballot title. Parker v. Priest, 326 Ark. 123, 930 S.W.2d 322 (1996). Its purpose is to identify the proposal for discussion prior to the election. Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000); Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984). The popular name is not held to the same stringent standards and need not be as explicit as a ballot title; however, it cannot contain catch phrases or slogans that tend to mislead or give partisan coloring to a proposal. Id. Thus, the popular name must be intelligible, honest, and impartial. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). This court considers the popular name along with the ballot title in determining its sufficiency. Roberts, 341 Ark. 813, 20 S.W.3d 376.

Petitioners argue that the popular name, “An Amendment Concerning Marriage,” only describes Section 1 of the proposed amendment, which states that “Marriage consists only of the union of one man and one woman[.]” They argue that the popular name omits any information regarding the limitations that the amendment will impose on the rights of unmarried couples or single persons or of the impact that the amendment will have on the legal recognition of any future union or partnership. They also argue that the word “marriage” is an inviting catchword, and that its use in this popular name is misleading in that very few persons would vote against marriage, even though they may be in favor of other types of relationships.

Petitioners rely heavily on the holding in Arkansas Women’s Political Caucus, 283 Ark. 463, 677 S.W.2d 846, wherein this court struck a proposed amendment from the ballot on the ground that its popular name, “The Unborn Child Amendment,” was misleading, contained partisan language, and omitted pertinent information. This court explained:

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May v. Daniels, 194 S.W.3d 771, 359 Ark. 100 (Ark. 2004).

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