Arkansas voters lost the opportunity to have their ballots counted for a measure to expand the state’s medical cannabis program in the 2024 election.
The Arkansas Supreme Court agreed with prohibitionists in a 4-3 ruling on Oct. 21 that the ballot title for a proposed amendment sponsored by Arkansans for Patient Access (APA) is misleading. While the amendment will still appear on the Nov. 5 statewide ballot as Issue 3, the votes cast on this measure will not be certified per Monday’s court ruling.
APA’s ballot measure proposed expanding the state’s existing medical cannabis program by increasing the number of qualifying conditions, allowing additional types of health care professionals to certify patients, and enabling patients to grow cannabis at home, among other provisions.
However, Jim Bell—acting individually and on behalf of Protect Arkansas Kids—joined the lawsuit as an intervenor and convinced the court in his favor. Protect Arkansas Kids is a ballot committee that was created specifically to oppose the APA’s medical cannabis amendment.
The Supreme Court’s majority ruled that the ballot title and its popular name, “the Arkansas Medical Marijuana Amendment of 2024,” is insufficient because it would mislead voters for three reasons, according to Associate Justice Shawn A. Womack, who wrote the majority opinion.
Womack and Associate Justice Barbara Webb were joined in the majority opinion by Special Justices Don Curdie and Bilenda Harris-Ritter, whom anti-legalization Gov. Sarah Huckabee Sanders appointed specifically for this lawsuit after Chief Justice Dan Kemp and Associate Justice Courtney Hudson recused themselves.
Womack specifically pointed out that in addition to expanding the state’s 2016 legalization measure (Amendment 98) to increase access for patients, the APA’s 2024 proposal would have allowed adults 21 years and older to possess up to 1 ounce of cannabis flower as well as state officials to establish a licensed cultivation and retail market for adult-use cannabis should federal law prohibiting those activities change.
“First, 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 Monday’s opinion. “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.”
While proposed changes to Article 5, Section 1, of the state constitution were not indicated in the popular name, the 850-word ballot title explains that the measure sought to amend that section to prohibit state legislators from changing or repealing any constitutional amendment without another vote of the people.
But Womack took issue with the exact wording from the ballot title: “to provide that unless provided in such constitutional amendment, no constitutional amendment shall be amended or repealed unless approved by the people” in a future election.
“The ballot title does not adequately inform voters that it is stripping the General Assembly of its ability to amend Amendment 98,” Womack wrote. “For these reasons, we hold that the proposed amendment is misleading.”
Associate justices Cody Hiland, Karen Baker and Rhoda Wood dissented, indicating that the majority opinion disregarded the court’s “decades-long legal precedent” relating to the sufficiency of popular names and ballot titles.
According to Hiland, popular names for ballot measures have only served as legislative devices to help identify proposals in the past and they “need not contain the same detailed information” that’s required of a ballot title.
“Long ago, this court established definitive standards for evaluating the sufficiency of popular names and ballot titles,” Hiland wrote. “This court has not deviated from those standards until today. … The germane nature of a popular name as it relates to its resulting ballot title and/or amendment text has never before been a part of this court’s analysis.”
Addressing Womack’s third point—the lone point dealing with the actual ballot title—Hiland argued that the majority opinion incorrectly viewed the ballot title as misleading simply because it does not spell out that the proposal would be “stripping the General Assembly of its ability to amend Amendment 98.”
Moreover, Hiland indicated that if the lone avenue to amend a constitutional amendment were to be a vote by the people, then it’s clear that the General Assembly would no longer have the power to do so through the legislative process.
“Contrary to the majority’s argument, if a voter reads the ballot title and is adequately informed (as they are presumed to be), any questions or hesitation about this provision would be resolved,” Hiland wrote.
While the majority opinion sided with Bell in his capacity as the intervenor, the court did not agree with Arkansas Secretary of State John Thurston, who was the respondent in the lawsuit filed by APA petition representative Bill Paschall.
Paschall filed the lawsuit on behalf of the APA after Thurston determined Sept. 30 that APA petitioners did not collect the 90,704 valid signatures necessary to qualify the proposed amendment for the 2024 ballot. That determination came after Thurston’s office refused to review roughly 18,000 of 38,933 signatures submitted by the APA during a 30-day cure period.
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While the secretary of state’s office certified 88,040 signatures submitted by the APA—from both the initial petition collecting period and the cure period—Thurston automatically voided the roughly 18,000 signatures from the cure period because of what state officials claimed to be improper paperwork filings by the petitioners. This left the APA 2,664 signatures short of a statewide threshold.
Specifically, APA employed Nationwide Ballot Access (NBA) to recruit, qualify, hire and train paid canvassers to gather signatures on behalf of APA.
However, on Aug. 8, the state secretary’s office sent a letter to APA stating that NBA’s submission of affidavits from the paid canvassers on behalf of APA no longer complied with state law during the cure period, despite Thurston’s office previously accepting at least 112 signature submissions from the NBA previous to the cure period, according to the APA lawsuit.
In turn, Paschall and the APA filed a lawsuit against Thurston to force state officials to count the roughly 18,000 voided signatures.
“Because Arkansas [law] allowed NBA to submit the sponsor statements on APA’s behalf, the secretary erred in finding the proposed amendment insufficient for APA’s failure to meet the 90,704-minimum-signature requirement,” Womack wrote in Monday’s majority opinion. “Nevertheless, because the popular name and ballot title of the proposed amendment are misleading, the secretary is enjoined from canvassing or certifying any ballots cast for the proposed amendment at the November 5, 2024, general election.”
In other words, even though Thurston’s office errored in voiding the roughly 18,000 signatures, those signatures are now irrelevant.
