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The Arkansas Supreme Court ruled Monday that votes cast in the November election for a proposed medical marijuana amendment will not be counted because the popular name and ballot title are misleading.
The Arkansas Medical Marijuana Amendment of 2024 will still appear on the ballot as Issue 3 because the signature verification process was still ongoing on Aug. 22, the deadline for when all candidates and sufficient ballot issues had to be certified to the counties for the ballot. However, the Arkansas Supreme Court’s ruling means any votes cast for the measure will not be counted.
Arkansans for Patient Access (APA), backers of the proposed amendment, filed an original action with the state Supreme Court this month against Secretary of State John Thurston after he deemed the group’s petition insufficient. Jim Bell and Protect Arkansas Kids, a ballot question committee that formed in July in opposition to the proposal, joined the case as intervenors siding with Thurston.
Writing for the majority, Associate Justice Shawn Womack said the state’s high court agreed with the intervenors in the case that the measure’s popular name, the Arkansas Medical Marijuana Amendment of 2024, is misleading because it does not inform voters that the amendment, if passed, would affect more than medical marijuana.
“The popular name indicates to voters that the proposed amendment only concerns marijuana for medical purposes, yet it seeks to legalize possession of up to an ounce of marijuana for all purposes if triggered by federal action,” Womack wrote. “In the same vein, the popular name of the ballot title does not inform voters that they would be amending article 5, section 1 of the Arkansas Constitution––which is likewise wholly unrelated to medical marijuana.”
This section of the state constitution deals with ballot initiatives and referendums.
Additionally, Womack said the ballot title doesn’t “adequately inform voters” that the measure would strip the General Assembly’s ability to amend Amendment 98, the voter-approved amendment that created the state’s medical marijuana industry in 2016.
Paschall v Thurston 102124 Majority Opinion
In Monday’s 18-page opinion, the state’s high court granted the intervenors’ request for relief and ordered that Arkansas Secretary of State John Thurston be prohibited from certifying ballots cast for the medical marijuana amendment during the November election.
Chief Justice Dan Kemp and Justice Courtney Hudson recused themselves from the case without providing a reason. Special Justices Don Curdie and Bilenda Harris-Ritter, appointed by the governor, joined Womack. Justices Karen Baker, Rhonda Wood and Cody Hiland dissented.
In an emailed statement, APA said it was “deeply disappointed” with the court’s decision because it indicates “politics has triumphed over legal precedent.” Politicians have ignored the requests of the more than 150,000 Arkansans from all 75 of the state’s counties that signed petitions in support of the proposed measure, according to the statement.
“This is a setback for the growth and improvement of our existing program, but it will not be the last attempt to ease the barriers Arkansas’s medical patients encounter,” APA said. “We will continue our fight to eliminate hurdles to access and lower costs. Patients across Arkansas have made it clear they want to build on the existing foundation; unfortunately, the anti-marijuana politicians have ignored their call. The people rule, our state motto, does not ring true today.”
Attorney General Tim Griffin said he reviewed and respects the Arkansas Supreme Court’s opinion.
Justice Hiland, who noted Monday’s decision “carries enormous weight,” said he disagreed with the majority’s opinion that the use of “medical marijuana” in its popular name versus the ballot title’s incorporation of a federal recreational marijuana trigger law is misleading.
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“Just as the majority itself states that this federal trigger law is about the legalization for recreational use, the voters alike can come to the same realization because there are no competing provisions that would generate confusion,” Hiland wrote in his dissent.
The United States is “a nation of laws and not men,” and the legal process dictates that Arkansans seeking ballot access have “a high burden with many hurdles,” he said.
“However, when all legal hurdles have been cleared, and we are tasked with making the final decision on sufficiency that tiptoes closely into the realm of judicial subjectivity, we must be faithful to evaluate on the basis of past precedent and through a lens of ‘liberal construction and interpretation’; ensuring that the benefit of the doubt rests with the people who have inherited the guarantee of liberty and the freedom to govern of themselves––the people of Arkansas,” Hiland said.
Womack said the dissenting opinion “totally misses the mark” by implying the majority opinion limits “the rights of the people to have a voice.”
“To the contrary, this opinion is ensuring that the rule of law is upheld by enforcing the legal requirements adopted by the people themselves in various provisions of our state constitution and the statutes passed by the elected representatives of the people in the General Assembly and by ensuring that the sponsors of proposed amendments follow the law by submitting proposals to voters that are not deceptive or misleading,” Womack said.
Background
APA in July submitted more than 108,000 signatures in support of its proposed amendment, which would have made several changes to the state’s medical marijuana industry, including allowing health care providers to conduct patient assessments via telemedicine and eliminating application fees for patient cards.
The secretary of state’s office deemed 77,000 signatures valid, which qualified APA for a 30-day cure period during which it could collect additional signatures to meet the 90,704 signature threshold to qualify for the ballot.
Arkansas Supreme Court asked to certify medical marijuana measure for 2024 ballot
However, Thurston rejected APA’s petition Sept. 30, and the group filed an original action on Oct. 1, requesting that the court vacate the secretary’s decision that the submission was insufficient and order the amendment placed on the ballot. Bell and Protect Arkansas Kids moved to intervene the same day.
Thurston claimed the basis for denial was APA’s failure to comply with the requirement that “the sponsor” certify that paid canvassers had no disqualifying offenses, according to Monday’s majority opinion. Instead, individuals with Nationwide Ballot Access (NBA) signed on APA’s behalf.
Thurston rejected all signatures obtained by paid canvassers that were accompanied by an affidavit submitted by NBA, which Thurston claimed brought the signature count below the threshold for certification, rendering the petition insufficient.
Thurston “erred in finding the proposed amendment insufficient” because state law does allow NBA to submit sponsor statements on APA’s behalf, the majority of justices wrote.
Monday’s ruling is supported by the high court’s recent opinion in McGill v. Thurston, a lawsuit that challenged the sufficiency of a proposed anti-casino amendment. The justices last week certified the measure for the ballot after deeming the popular name and ballot title sufficient, and deciding that an agent may sign paperwork on behalf of a sponsor.
Although the majority disagreed with Thurston, it agreed with intervenors that the popular name and ballot title of the proposed amendment are misleading, and therefore the secretary can not count ballots cast for the amendment.
Arkansans voted to legalize cannabis for medical use in 2016. The first products were sold in 2019, and the state now has 37 licensed dispensaries and a billion-dollar medical cannabis industry.
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