A proposed constitutional amendment aimed at protecting direct democracy in Arkansas was rejected a second time Tuesday by the state’s attorney general because it failed to comply with a new law that prohibits ballot titles from being written above an eighth-grade reading level.
Approved by state lawmakers in April, Act 602 prohibits the attorney general from certifying a proposed ballot title with a reading level above eighth grade as determined by the Flesch-Kincaid Grade Level formula. The test uses word complexity and sentence lengths to calculate what grade of education is needed to comprehend written material.
According to Tuesday’s opinion, which was prepared by Assistant Attorney General Kelly Summerside and approved by Attorney General Tim Griffin, the latest ballot title proposed by the Protect AR Rights coalition ranks at a 9.3 reading level. While closer than the 11.5 level assigned to the original submission, Griffin said it still doesn’t meet the requirements of the law.
The Arkansas Ballot Measure Rights Amendment would amend Article 5 Section 1 of the Arkansas Constitution, the section that governs the state’s initiative and referendum process. It would designate the right of voters to make and repeal laws by petition as a “fundamental right.”
Among its various provisions, the measure would explicitly prohibit Arkansas lawmakers from amending or repealing a constitutional amendment approved by voters, require voters to be notified if their petition signature will be disqualified and given an opportunity to correct any problems, and require signatures to be gathered from at least 15 counties instead of 50.
A lawsuit challenging the 2023 law that increased the threshold from 15 to 50 counties is awaiting a judge’s decision following an October hearing. David Couch, a Little Rock attorney representing the plaintiffs, filed a letter Monday requesting that the case’s new judge issue an order or schedule another hearing soon.
Conflicting language regarding the measure’s provision on collecting signatures from 15 counties is another reason Griffin cited for Tuesday’s rejection. The attorney general said he suspects that sponsors intended the measure’s language to require signatures from at least 15 counties and to prevent any law that would require signatures to be gathered from more than 15 counties, but that’s not what was written.
“Rather, your proposed language requires that signatures be gathered from at least 15 counties, and it requires that the signatures be from no more than 15 counties,” Griffin wrote. “In other words, the signatures must come from exactly 15 counties.”
Griffin said this language is inconsistent with another provision in the proposal as well as the ballot title. Because this “key ambiguity” prevents the attorney general from ensuring the ballot title is not misleading or from substituting a more appropriate ballot title, Griffin said he could not certify the proposal.
Gennie Diaz, a member of the Protect AR Rights coalition, said in a statement that the group “remains committed to safeguarding Arkansans’ rights to participate directly in the democratic process.”
“We are reviewing the Attorney General’s feedback, and our drafting team will revise and resubmit the measure without delay,” Diaz said. “As we’ve previously stated, we believe the 8th grade readability requirement conflicts with our legal obligation to provide voters a clear and accurate ballot title — a concern we are addressing through ongoing litigation.”
Protect AR Rights and For AR Kids, another ballot question committee pursuing an education-focused constitutional amendment, are trying to challenge the eighth-grade reading law by intervening in a federal lawsuit that challenges several other new laws governing the state’s direct democracy process.
Supporters of the new laws have said they will ensure the integrity of the initiative and referendum process, while opponents have argued the laws will make it more difficult for citizen-led initiatives to qualify for the ballot.
The direct democracy process allows Arkansans to propose new laws or constitutional amendments and put them to a statewide vote. Arkansas is one of 24 states that allows citizen-led initiatives, according to the National Conference of State Legislatures.
The League of Women Voters of Arkansas filed the lawsuit against the secretary of state in April. The League proposed its own direct democracy-related ballot measure this year that was thrice rejected by the attorney general, including once for violating the new reading-level law. Griffin substituted and certified the popular name and ballot title so it met the eighth grade-reading level requirement in May. The League has begun gathering signatures to try to place its measure on the 2026 ballot.
In response to the motion, both the League and the state argued in court filings that Protect AR Rights lacks standing and is not entitled to intervene in the case. A judge has not yet ruled on the motion to intervene.
