¶1concurring in part; dissenting in part. stice, majority that this court has jurisdiction. Further, nobody agrees more than I do with the concern expressed in the dissents about last minute ballot challenges. Those opposed to proposed amendments have developed the disagreeable practice of challenging the ballot title and popular name so late in the election cycle that if they prevail, there is no time to remedy any problems. In this way, they thwart the whole purpose of Amendment 7 and force this court to decide the matter on the eve of the election. Those who have invested time and money in getting amendments on the ballot understandably feel frustrated and angry, and they should. However, under the terms of Amendment 80 this court now has original jurisdiction over petitions challenging sufficiency, and authority to issue rules controlling petitions challenging sufficiency of statewide petitions under Amendment 7. The judicial article, prior to Amendment 80, did not give the supreme court original jurisdiction of initiative and referendum, petitions and proposed constitutional amendments. The supreme court’s jurisdiction in these matters was found in Amendment 7. In 2000, the citizens passed Amendment 80, which gives the supreme court “[ojriginal jurisdiction to determine sufficiency of State initiative and referendum petitions and proposed constitutional amendments.” The purpose of drafting Amendment 80 to give the supreme court original jurisdiction in these matters was to provide the supreme court the vehicle by which it could address the frustrating problem of last-minute challenges to ballot proposals and the lack of time to correct the deficiencies. The citizens were told by the proponents of Amendment 80 that avoiding last minute challenges to ballot proposals was one of the things Amendment 80 would accomplish. With the passage of Amendment 80, this court now has the opportunity to fashion the vehicle by which those who invest so much time and money in obtaining the signatures will have a reasonable and timely opportunity to correct any deficiencies in order to keep their proposal on the ballot.
¶2Amendment 7 provided for review in this court after the issue of sufficiency had been decided by the Secretary of State. Amendment 80 alters this and simply provides for jurisdiction of the issue of sufficiency in this court. There is no mention in Amendment 80 of any involvement of the Secretary of State.
¶3With regard to sufficiency, Amendment 7 provided:
The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.
¶4Amendment 80, however, provides:
(D) The Supreme Court shall have: . . .
(4) Original jurisdiction to determine sufficiency of State initiative and referendum petitions and proposed constitutional amendments;
¶5Amendment 80 omits any reference to sufficiency being decided in the first instance by the Secretary of State. This conflict raises an issue of constitutional interpretation. In Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001), this court stated:
In interpreting the language of a provision of the Arkansas Constitution, we endeavor to effectuate as nearly as possible the intent of the people in passing the measure. Allred v. McLoud, 343 Ark. 35, 31 S.W.3d 836 (2000). Where the language of the constitutional provision is plain and unambiguous, each word must be given its obvious and common meaning. Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). “Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision.” Id. at 499, 966 S.W.2d at 231 (quoting Foster v. Jefferson County Quorum Court, 321 Ark. 105, 108, 901 S.W.2d 809, 810 (1995)).
¶6Harris, 344 Ark. at 99. The former law provided that a challenge to sufficiency had to be brought first to the Secretary of State, and then the decision there was subject to review in this court. The law now provides challenges are to be brought in this court. Amendment 80 is the later amendment and prevails. Wright v. Storey, 298 Ark. 508, 769 S.W.2d 16 (1989). This issue of later amendments was discussed in greater detail in Chesshir v. Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930), cited by the court in Wright, supra. In Chesshir, supra, this court stated:
It is a rule of universal application that the Constitution must be considered as a whole, and that, to get at the meaning of any part of it, we must read it in the light of other provisions relating to the same subject. The general rule is that constitutional provisions and amendments thereto must be harmonized where practical. If there is to some extent an inconsistency or repugnancy between a provision of the Constitution and an amendment thereto, so that one or the other must yield, the amendment being the last expression of the Sovereign will of the people will prevail as an implied repeal to the extent of the conflict. The same rule of construction would apply in the construction of amendments. The later amendment would govern to the extent that it was repugnant to or in conflict with the provisions of the former one. Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785; Ferrell v. Keel, 105 Ark. 386, 151 S.W. 269; State ex rel. v. Donaghey, 166 Ark. 56, 152 S.W. 746; Grant v. Hard age, 166 Ark. 506, 153 S.W. 269; Babb v. El Dorado, 170 Ark. 10, 278 S.W. 649; Lybrand v. Wafford, 174 Ark. 298, 296 S.W. 729; Polk County v. Mona Star Company, 175 Ark. 76, 298 S.W. 1602; and Lake v. Tatum, 175 Ark. 90, 1 S.W.2d 554. The principle of constitutional construction above laid down has been uniformly adhered to and applied according to the varying facts of the different cases.
¶7Chesshir, 182 Ark. at 429.
¶8Under Amendment 7 as it was originally passed by the voters, there was nothing this court could do with regard to sufficiency until the question had been presented to the Secretary of State. “Until the Secretary of State shall have acted upon the sufficiency of the petition and his action therein shall have been properly challenged, we have nothing to review.” Rambo v. Hall, 195 Ark. 502, 112 S.W.2d 951 (1938). Now under Amendment 80, original jurisdiction to determine sufficiency lies in this court.
¶9Discussion of Act 877 of 1999, is superfluous. It is in conflict with and therefore was displaced by Amendment 80. An existing statute is superseded by a subsequent constitutional amendment when there is an irreconcilable conflict or the statute is necessarily repugnant to the new constitutional provision. McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973); see also, Priest v. Mack, 194 Ark. 788, 109 S.W.2d 665 (1937). Thus, in the present case, this court has jurisdiction.
¶10I must also respectfully dissent because although the challenge to the sufficiency of the ballot title was brought late, there is merit to the claim that it is misleading and confusing. In Westbrook v. McDonald, 184 Ark. 740, 44 S.W.2d 331 (1931), this court discussed its obligation under Amendment 7 to consider on a challenge to sufficiency whether the ballot title is sufficient and whether it is misleading. This court has been undertaking such an analysis ever since. See, e.g., White v. Priest, 348 Ark. 135, 73 S.W.3d 572 (2002).
¶11The ballot measure is one to abolish taxes on food and medicine. Although the idea is arguably a simple one, the definitions of food and medicine in the ballot title are not. The ballot title provides:
AN AMENDMENT TO THE ARKANSAS CONSTITUTION, ABOLISHING AND PROHIBITING TAXATION ON FOOD AND MEDICINE; DEFINING “FOOD” TO MEAN “ANY ITEM THAT WAS ELIGIBLE FOR PURCHASE WITH FEDERAL FOOD STAMPS ON APRIL 1, 2001 OR IS OTHERWISE AVAILABLE UNDER ANY STATE OR FEDERAL NUTRITION ASSISTANCE PROGRAM EXISTING ON APRIL 1, 2001;” DEFINING “MEDICINE” TO MEAN “ANY ITEM BEING FURNISHED OR AVAILABLE' AT A REDUCED COST UNDER ANY STATE OR FEDERAL' HEALTH CARE ASSISTANCE PROGRAM ON APRIL 1, 2001. . .
¶12The idea of abolishing taxes on food and medicine seems like a simple one until one reads the ballot title. What the voter will likely think the vote is about is whether we should be taxing the necessities of life. When we think of food, we think of substance that we take into our body for nourishment. That is pretty simple. When we think of medicine, we think of substances we take into our body to make us well. That is pretty simple. But, once the ballot title is read, one must wonder just what will and what will not be taxed. The definition of food might be argued to be broader than the necessities of life, but then it might be more narrow. I know that I cannot tell you by reading the ballot what food and what medicines will not be taxed. I do not believe the reasonable voter could tell either. In oral argument, counsel for the intervenors, who were the proponents of the ballot measure, was asked whether over-the-counter medicine would be taxed. He responded as follows:
Any time anyone tries to draw a definition of anything, a capable lawyer can quibble with that definition at the margins. That, I think, we have to concede. This is a definite definition. If anyone wants to know whether Pedialyte or Pepto-Bismol, which are two of the examples that the petitioner has raised, are covered items as of 2001, April 1, 2001, we can find out the answer. I can’t tell you what the answer is here today, Justice Brown, because I don’t know. The point is, we can determine that answer with certainty. That is not a material issue for voters in the voting booth.
¶13If the lawyer for Intervenors cannot tell what medicines would be exempt from the sales tax, the average person certainly could not know. Most people would likely be surprised to find there was an issue of whether Pedialyte would or would not be taxed. Pedialyte would seem to be one of the most simple forms of medication a parent might seek when a child is ill, and yet it may or may not be taxable. To say the definitions chosen by the proponents are complex only partially addresses the issue. Even assuming the definitions are finite, they are not contained in the ballot title, but rather the voter is referred to a number of federal and State programs. In essence, in the ballot title, the voter is told to vote for this measure and those items provided under food stamps or state or federal nutrition programs will not be taxed. The voter is further told to vote for this measure and any item furnished under federal and State health programs will not be taxed. It is arguably far from a ban on taxation of food and medicine. It may be far more, or it may be far less.
¶14A ballot title must comply with certain requirements. In Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251 (2000), this court stated:
We have held that a ballot title must be free from a misleading tendency. Bailey v. McCuen, supra; Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). We have further held that a ballot title must be intelligible, honest, and impartial so as to inform voters with such clarity that they can cast their ballots with a fair understanding of the issues presented. Parker v. Priest, supra; Bailey v. McCuen, supra. If information is omitted from the ballot tide which is an essential fact which would give the voter serious ground for reflection, it must be disclosed. Parker v. Priest, supra; Bailey v. McCuen, supra. Finally, we have held that we are liberal in construing Amendment 7 and in determining the sufficiency of a ballot tide. Bailey v. McCuen, supra; Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512 (1992).
¶15This ballot title is misleading and unintelligible. It is insufficient to inform the voter. It is to the ballot title that the voters may look to ascertain whether what they are asked to approve. Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). A voter is also entitled to be informed by plain language. Daniel, supra. Voters cannot be required to refer to statutes or an act. Daniel, supra. Here, the voter is required to do just that, to look at definitions in federal and State programs. Further, the ballot title is far from plain language where a voter is referred to multiple federal and State programs to understand what is and what is not going to be taxed. Where a ballot title is misleading and confusing, this court must find it insufficient. It is unfortunate this challenge has been made so late in the election cycle, but that does not alter this court’s duty. That problem, however, may now be addressed in future cases by this court under Amendment 80. Rules should be promulgated that stop last minute ballot title challenges. However, in this case, the petition should be granted.