The Arkansas Supreme Court has ordered the secretary of state’s office to certify a marijuana legalization initiative for the November ballot—but there’s a chance that the votes will not end up being counted, depending on the final outcome of a pending legal challenge.
On Wednesday, justices on the state’s highest court granted Responsible Growth Arkansas’s motions to expedite the case and for a preliminary injunction that will force the secretary of state’s office to certify the reform measure. The legal dispute centers on the legalization campaign’s effort to overturn the state Board of Election Commissioners’s ruling that the measure’s ballot title is misleading.
What this means is that voters will see legalization on the ballot. But if the court ultimately sides with state officials on the merits of the challenge following certification, the votes on the initiative would not be counted.
Justices laid out a timeline for next steps in the case. First, the secretary of state will need to file a response to the petitioners’ original complaint by August 16. Petitioners will then have until August 23 to file a response brief. A subsequent respondents’ brief is due August 30. And finally, petitioner’s reply brief to that must come by September 2.
That takes the case schedule beyond the secretary of state’s August 25 deadline to certify amendments for the ballot to county officials, hence the need for the temporary injunction.
The preliminary action “was exactly what we asked for, and we were very pleased by the court’s rulings,” a spokesperson for Responsible Growth Arkansas told Marijuana Moment on Thursday.
State officials, for their part, had urged the court not to grant the injunction, saying in a brief that it would be “manifestly unfair” to put the measure on the ballot before the legal challenge is resolved.
“Voters should not be unnecessarily confused by being faced with a ballot measure, the votes for which will not be ultimately counted,” they argued.
While the justices’ decision to grant the motion to expedite and preliminary injunction was a best case scenario for the campaign in the short-term, however, it doesn’t necessarily reflect where the court will come down on the overall case, as neither party has made its merit-based arguments yet.
Responsible Growth Arkansas says it is confident it will prevail and that the court-mandated certification will be followed by a final judgment that the ballot language is not misleading.
The campaign submitted about 193,000 signatures—more than double what’s required to qualify the constitutional amendment—earlier this month. The secretary of state’s office later announced that it had processed enough petitions to confirm that there were sufficient signatures for ballot placement.
But as activists anticipated, the election board voted a motion not to certify, in part because they felt provisions of the popular name and ballot title did not effectively inform voters about issues like THC limits. That’s what prompted the lawsuit filed with the state Supreme Court last week.
The campaign said in its complaint that the Board of Election Commissioners were “thwarting of the will of the people and their right to adopt laws by initiative.”
“That ‘power lies at the heart of our democratic institutions,’” it said. “The Board has attacked that heart through its incorrect rejection of the ballot title.”
The suit says officials violated the state constitution and ignored prior Supreme Court precedent, “choosing instead to apply an overly stringent approach that denied the wishes of hundreds of thousands of Arkansans to have the opportunity to vote on the Amendment.”
Last week, Gov. Asa Hutchinson (R)—a former Drug Enforcement Administration head—suggested it was a given that the measure would end up before voters and urged police to help campaign against it.
Here’s what the campaign’s marijuana legalization initiative would accomplish:
-Adults 21 and older could purchase and possess up to one ounce of cannabis from licensed retailers.
-Home cultivation would not be allowed.
-The measure would make a series of changes to the state’s existing medical cannabis program that was approved by voters in 2016, including a repeal of residency requirements to qualify as a patient in the state.
-The state Alcoholic Beverage Control (ABC) Division of the Department of Finance and Administration would be responsible for regulating the program and issuing cannabis business licenses.
-Regulators would need to license existing medical cannabis dispensaries to also serve adult consumers, and also permit them to open another retail location for recreational marijuana sales only. A lottery system would award licenses for 40 additional adult-use retailers.
-There are no provisions to expunge or seal past criminal records for marijuana or to provide specific social equity licensing opportunities for people from communities harmed by the war on drugs.
-The state could impose up to a 10 percent supplemental tax on recreational cannabis sales, in addition to the existing state and local sales tax.
-Tax revenue would be divided up between law enforcement (15 percent), the University of Arkansas for Medical Sciences (10 percent) and the state drug court program (five percent). The remaining revenue would go to the state general fund.
-People who own less than five percent of a marijuana businesses would no longer be subject to background checks.
-The legislature could not repeal of amend the state’s medical marijuana statutes without voter approval.
-Local governments could hold elections to prohibit adult-use retailers in their jurisdiction if voters approve the decision.
-Individuals could now own stake in more than 18 dispensaries.
-There would be advertising and packaging restrictions, including a requirement that marijuana products must be sold in tamper-resistant packages.
-Dispensaries would be able to cultivate and store up to 100 seedings, instead of 50 as prescribed under the current medical cannabis law.
A former Arkansas Democratic House minority leader, Eddie Armstrong, is behind the Responsible Growth Arkansas constitutional amendment, which he filed in January.
The group is just one of several campaigns that have pursued cannabis reform through the ballot this year, though backers of competing initiatives have since acknowledged they wouldn’t be able to collect enough signatures to qualify this year.
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Supporters of the separate campaigns, Arkansas True Grass and Arkansans for Marijuana Reform, have raised concerns with the provisions of the Responsible Growth Arkansas initiative, suggesting it would favor big businesses in the existing medical cannabis industry. Some have said they may look to 2024 to try again with their own approaches.
Stephen Lancaster, a spokesperson for Responsible Growth Arkansas, previously told Marijuana Moment that the campaign hopes that won’t be necessary. His campaign feels that the constitutional amendment provides a sound infrastructure for reform that prioritizes regulations—and the plan is to push for further reforms in the legislature if voters approve legalization at the polls. That would include efforts to promote expungements, which isn’t addressed by the initiative.
Meanwhile, a poll released in February found that 54 percent of Arkansans favor full adult-use legalization, compared to 32 percent who said it should be legal for medical use only and just around 11 percent who said it should be outright illegal.
Arkansas is also not the only state where voters could see drug policy reform measures on their November ballots:
Maryland elections officials recently finalized the language for a marijuana legalization referendum that lawmakers placed on the November ballot, and have issued a formal summary of the reform proposal.
This month, the Oklahoma attorney general revised the ballot title of a marijuana legalization initiative that activists hope will be certified to go before the state’s voters, making mostly technical changes that the campaign views as satisfactory.
Missouri’s secretary of state certified that activists turned in more than enough signatures to qualify a marijuana legalization initiative for the November ballot.
Colorado voters will have the chance to decide on a historic ballot initiative this November to legalize psychedelics and create licensed psilocybin “healing centers” where people can use the substance for therapeutic purposes.
South Dakota officials certified that activists turned in a sufficient number of signatures to qualify a marijuana legalization measure for the November ballot.
North Dakota activists turned in what they believe to be enough signatures to place a marijuana legalization initiative before voters.
Nebraska advocates recently submitted signatures for a pair of medical cannabis legalization initiatives. The campaign has faced several challenges along the way, including the loss of critical funding after a key donor passed away and a court battle of the state’s geographic requirements for ballot petitions.
An initiative to legalize marijuana will not appear on Ohio’s November ballot, the campaign behind the measure announced in May. But activists did reach a settlement with state officials in a legal challenge that will give them a chance to hit the ground running in 2023.
Michigan activists announced in June that they will no longer be pursuing a statewide psychedelics legalization ballot initiative for this year’s election and will instead focus on qualifying the measure to go before voters in 2024.
The campaign behind an effort to decriminalize drugs and expand treatment and recovery services in Washington State said in June that it has halted its push to qualify an initiative for November’s ballot.
While Wyoming activists said earlier this year that they made solid progress in collecting signatures for a pair of ballot initiatives to decriminalize marijuana possession and legalize medical cannabis, they didn’t get enough to make the 2022 ballot deadline and will be aiming for 2024 while simultaneously pushing the legislature to advance reform even sooner.
In March, California activists announced that they came up short on collecting enough signatures to qualify a measure to legalize psilocybin mushrooms for the state’s November ballot, though they aren’t giving up on a future election cycle bid.
Wisconsin voters in at least half a dozen cities and counties will be asked on November’s ballot whether they support legalizing, taxing and regulating cannabis in a manner similar to alcohol. Those advisory questions will be non-binding, however, and are intended to take the temperature of voters and send a message to lawmakers about where their constituents stand.