What Is "Human Intelligence," in Proposed Initiative Ballot Title, as Opposed to "Computer or Artificial Intelligence"?

An interesting opinion by the Arkansas AG's office, rejecting a proposed popular name and ballot title for a draft initiative.

In Arkansas, as in many other states, proposals for initiatives' popular names and ballot titles must be submitted to the state AG's office, which must evaluate them to make sure they fairly and accurately summarize the initiative's legal effect. The AG's office may then accept the popular name and ballot title, revise it, or reject it.

An Arkansas AG's opinion released last week (No. 2023-108) rejects the following proposal:

Popular Name

An amendment to the Arkansas Constitution to conduct all elections by paper ballots containing inherent security features which protect the integrity and authenticity of an official ballot, with vote selections marked by hand using permanent ink placed directly on the ballot by the voter (except when otherwise required by federal law), permitting the counting of election day votes only after the polls close on election day, requiring the vote count to be verified by human intelligence before certification of the vote, requiring that all elections in this State be conducted by voters selecting only one candidate or issue per race with the winner determined by which candidate or issue receives the majority plus at least one vote of the total votes, preserving the special runoff system, ensuring that elections cannot be conducted in this state using an internet, Bluetooth, or wireless connection, and allocating funding to ensure free, fair, and secure elections.

Ballot Title

An amendment to the Arkansas Constitution that repeals Amendment 50, § 4 and amends Amendment 50, § 2 to remove the language that permits elections to be conducted by voting machines, modify the language of Amendment 50, § 2 as well as adding new sections to Amendment 50 which effectuate a policy and practice that all elections in this State must be conducted with paper ballots containing inherent security features designed to prevent unauthorized duplication, with vote selections marked by hand using permanent ink placed directly on the ballot by the voter in a manner which ensures the secrecy of the votes cast on the ballot and the anonymity of the voter casting the ballot, requiring that no election day votes be counted or tabulated before the close of the polls on election day, requiring that the tabulation of votes be verified by human intelligence before certification of the vote, requiring that all elections for government positions or issues in this State be conducted by voters selecting only one candidate or issue per race with the winner determined by which candidate or issue receives the majority plus at least one vote of the total votes, ensuring that elections cannot be conducted in this state using an internet, Bluetooth, or wireless connection, and allocating funding to ensure free, fair, and secure elections….

The AG gives several reasons for rejecting the proposed name and title (laid out in detail here), but here are some that struck me as especially interesting:

• "Human intelligence." The popular name, the ballot title, and the text of the proposed measure all contain the phrase "human intelligence," which the text defines as "the thought and physical process of a human being instead of the thought or process of a computer or an artificial intelligence." This language is confusing because the meaning of "thought and physical process" are unclear. Does this mean a human cannot use any machine or computer, such as a calculator or Excel spreadsheet, to aid in his or her "thought and physical process"? The answer to this question would surely give voters "serious ground for reflection." [Under Arkansas law, {sponsors cannot omit material from the ballot title that qualifies as an "essential fact which would give the voter serious ground for reflection."}]

The answer is also important to determine which statutes would be supplanted by the amendment. For example, under A.C.A. § 7-5-602(c), paper ballots must be "run through an electronic vote tabulation device before a hand count is conducted." And A.C.A. § 7-5-606 specifies the requirements for "exhibit marking devices and electronic vote tabulating devices." Since your definition of the term "human intelligence" is unclear, I cannot ensure that the ballot title is not misleading….

• Secrecy of individual votes. Amendment 50, § 2 to the Arkansas Constitution currently requires that the secrecy of individual votes be maintained: "All elections by the people shall be by ballot or by voting machines which insure the secrecy of individual votes." The text of your proposed amendment would repeal the secrecy requirement in Amendment 50, § 2. Section 6 of your proposed text would replace Amendment 50, § 2 with the following language, none of which maintains the current "secrecy of individual votes": "All elections by the people in this State shall be by a paper ballot containing inherent security features which makes the paper ballot difficult to duplicate or counterfeit." This repeal might also be read as having the effect of repealing the provision of Amendment 81 to our constitution that protects the secrecy of votes.

Yet your ballot title summarizes the proposed text as "ensur[ing] the secrecy of the votes cast on the ballot and the anonymity of the voter casting the ballot." You appear to believe that the method of voting required by your text would itself ensure the secrecy of individual votes. That may be true. But since it is unclear to me whether you intend to remove the constitutional right to the secrecy of individual votes, I cannot ensure your ballot title is not misleading….

• Popular name length. The popular name—at 152 words—is longer than a typical popular name. It instead reads like a second ballot title. Although this alone is not misleading, you may wish to significantly shorten the popular name to better meet the purpose of popular names as described above.
• Partisan coloring language in the popular name. It is my opinion that your proposed popular name contains impermissible "partisan coloring" language when it uses the word "integrity." The Arkansas Supreme Court has held that "partisan coloring" language is "a form of salesmanship" that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." The word ""integrity," as used in the popular name (i.e., "protect the integrity"), gives voters only the impression that the proponents of the proposed amendment wish to convey—a "[s]teadfast adherence to a strict moral or ethical code … being unimpaired; sound[]." To paraphrase the Arkansas Supreme Court, the "[voter] is entitled to form" his or her "own conclusions" on whether the proposed measure promotes integrity.
• Partisan coloring in the ballot title. It is my opinion that the ballot title also contains impermissible "partisan coloring" language when it uses the words "to ensure free, fair, and secure elections." Such words, like a slogan, give voters only the impression that the proponents of the proposed amendment wish to convey— as if to vote otherwise is to ensure the opposite of those characteristics. Again, the "voter is entitled to form" his or her "own conclusions" on whether the proposed measure promotes elections that would be ""free, fair, and secure." …
• Grammatical issues. Your ballot title only uses commas. But because of the length and complexity of your ballot title, which includes multiple instances of a series within a series, the use of semicolons would provide greater clarity and promote readability. Additionally, random capitalization appears throughout the text of your proposed amendment, which does not appear to serve any purpose. You may wish to correct this.