Arkansas Supreme Court keeps Pope County casino amendment on ballot

The Arkansas Supreme Court on Oct. 17, 2024 denied a petition asking the court to remove from the Nov. 5 general-election ballot a proposed constitutional amendment that would reduce the number of casino licenses and require countywide special elections for certain future casinos, Associate Justice Karen R. Baker wrote in the court’s opinion.

The court considered challenges to the amendment’s popular name and ballot title (Count II) and concluded the wording, when read together, was “an intelligible, honest, and impartial means” of presenting the proposal to voters. The court denied the petition as to Count II and ordered its mandate to issue immediately.

The petitioners—Jennifer McGill (individually and on behalf of the Arkansas Canvassing Compliance Committee) and Cherokee Nation Entertainment, LLC (CNE)—had argued the popular name and ballot title failed to disclose that a license had already been issued for Pope County and that the amendment would nullify that license and related economic agreements. The court said those cases petitioners relied on were distinguishable and that a popular name need not describe every eventuality; the ballot title itself plainly states that a license issued prior to the amendment’s effective date would be revoked. The Attorney General certified the popular name and ballot title on March 20, 2024; Secretary of State John Thurston certified placement of the amendment on the ballot on July 31, 2024.

The opinion notes factual background alleged by petitioners: CNE was awarded the Pope County license on June 27, 2024; petitioners alleged Local Voters in Charge (LVC) was funded by the Choctaw Nation and that, as of June 30, 2024, Choctaw had contributed $5.3 million toward the initiative petition. The petition seeking removal of the measure was filed Aug. 1, 2024. The court declined to revisit Count I (signature-count disputes), which had been addressed separately by a special master and in a separate opinion.

The court also denied a motion by intervenors to dismiss CNE from the proceedings, concluding that CNE— as the current holder of the Pope County license that the amendment would revoke if enacted—has standing to challenge the popular name and ballot title. The mandate accompanies the opinion, and the court directed issuance immediately.

Justice Shawn A. Womack dissented, arguing the popular name and the ballot title mislead voters because their language is framed prospectively and does not make clear to voters that a license already issued prior to the election would be revoked. Womack wrote that, in his view, the proper remedy was to enjoin the Secretary of State from canvassing or certifying any ballots cast on the proposed amendment. Justice Rhonda K. Wood concurred with the result but cautioned against interpreting the amendment’s substantive text at this stage.

The opinion and dissent cite precedent including Bailey v. McCuen, Parker v. Priest, Armstrong v. Thurston and cases governing the standards for ballot titles and popular names. The ballot title for the proposed amendment would also add provisions setting procedures for future county special elections and specifies an effective date on or after Nov. 13, 2024.

Background materials filed with the court included an economic development agreement attached to the petitioners’ filing and an Attorney General opinion that the parties cited while disputing whether an initiative can preemptively restrict future constitutional amendments. The court said resolving federal-law or detailed statutory conflicts would require fact-intensive analysis beyond the scope of a ballot-title review and declined to reach those issues.

What the court decided in Count II does not resolve other litigation points the petitioners raised; the opinion leaves intact the decision to proceed with the measure on the Nov. 5 ballot and signals that any challenge to the amendment’s substantive legality or to Count I remained subject to separate proceedings.