The Oklahoma Supreme Court shot down two out of four legal challenges against a marijuana legalization initiative on Friday, giving activists a couple of wins as the justices consider the remaining complaints as well as a broader decision on whether the measure will be officially placed on the November ballot.
The Court gave both petitioners a shortened window to request a rehearing because of the timeliness of the ballot issue, seemingly setting the court up to make a final ruling next week on whether the initiative can go before voters this year.
The deadline to submit a challenge against the proposed constitutional amendment closed on Thursday. A total of four complaints were filed, including two that concerned the signature certification that the court rejected on Friday and two more recent challenges that deal with the ballot title language.
One of the dismissed complaints came from a former Oklahoma lawmaker, Mike Reynolds, who alleged that a recently enacted state law on election integrity made it a “practical impossibility” to review signatures because, he said, they’ve been made inaccessible without taking legal action to review.
The court pointed out that, by Reynolds’s own admission, he was able to get a digitized version of petition “hours after” filing out the application according to statute. And his request for an additional 10 days to challenge the measure after reviewing the signatures would “violate both legislative intent and the plain language of the statue,” the Court said.
The other dismissed complaint came from a controversial cannabis activist, Paul Tay, who argued that signatures collected on sovereign Indian land are not valid. He made a similar argument against a since-withdrawn legalization measure that was led by a separate campaign.
The court made clear in its ruling on Friday that it has lost patience with Tay, who “has a history of filing original proceedings in this Court, many of which had no legitimate legal basis.”
Despite being warned about the consequences of litigious frivolity, Tay “continues to file matters in this Court lacking in merit or without a good faith legal basis, including this proceeding,” justices said. Accordingly, they not only dismissed his complaint but also revoked his “pauperis status” that’s allowed him to file complaints without paying fees.
Under normal circumstances, both petitioners would have been afforded 20 days to request a rehearing. But due to the “exigencies related to the element of time affecting this matter,” that window has been “shortened” to Tuesday morning. This seems to indicate that the justices could be prepared to resolve all remaining legal challenges to the ballot and issue a final decision by later that day.
Oklahomans for Sensible Marijuana Laws (OSML) submitted more than enough signatures to qualify their legalization measure in July, and they also accepted ballot title language revisions from the state attorney general before the secretary of state’s office certified the signatures last month.
“We have always felt confident that the Court would throw out any frivolous challenges quickly, and today they have done that by resolving the two challenges that were filed early in the protest period,” Michelle Tilley, campaign director for Yes on 820, said in a statement on Friday. “We are thankful the Court has acted with expediency.”
— Yes on 820 Campaign (@YesOn820) September 16, 2022
Meanwhile, there are still two other complaints regarding the ballot title before the court.
Plaintiffs in the one of the remaining challenges—two of whom are affiliated with the Oklahoma Farm Bureau—argued that the language of the ballot title is misleading because it doesn’t adequately inform voters about five policy impacts of the proposal. For example, they say the lack of disclosure about decriminalization provisions for people under 21 and firearm-related implications makes the title affirmatively misleading.
Notably, the complaint doesn’t seek to knock legalization off the ballot altogether, as the first two challenges sought; rather, it is asking the court to strike the current ballot title and replace it with the one that the campaign originally submitted before accepting the attorney general’s revisions.
Luke Niforatos, CEO of the Protect Our Kids PAC, said on Thursday that he “partnered to make this challenge happen.” His organization was also involved in litigating against a Missouri cannabis legalization ballot measure, but that state’s Supreme Court ultimately sided with the legalization campaign and cleared the initiative.
The final complaint came from cannabis activist Jed Green, who previously failed to convince the court that State Question 820 violated the state Constitution’s single-subject rule for ballot measures and that the summary was misleading.
In his new filing, Green—who led a separate campaign that attempted to put legalization on Oklahoma’s 2022 ballot before giving up that effort—similarly contended that there are compromising omissions in the ballot title, though he pointed to different components than those cited in Wednesday’s earlier complaint.
Specifically, he said that the title misses three “fundamental” provisions of the law that would be enacted if voters approve the initiative: 1) that the legislature could still amend the law if voters approve it, 2) that fines for public consumption would be limited to $25 and 3) that medical cannabis dispensaries would need to obtain a second license to serve adult-use consumers and adhere to those separate licensing requirements.
Green proposed a revised ballot title that he’s asking the court to adopt in lieu of the attorney general’s version.
“The remaining two challenges concern only the language for the ballot title, so we are also glad to know our signatures will be counted, and State Question 820 will be going to a vote of the people at some point,” Tilley said. “We continue to fight to place this on the November 2020 ballot so Oklahomans can vote on this important issue now!”
OSML has spent a significant amount of time in the state Supreme Court this election cycle, and the court recently handed activists a temporary win by announcing that it would be delaying its decision on whether the state-certified legalization initiative will appear on the November ballot.
While the measure was certified by the secretary of state’s office, officials have argued that the campaign risked missing ballot printing cutoff dates. Activists then filed a lawsuit arguing that the deadlines suggested by state officials were “arbitrary,” and asked the Supreme Court to force the state to put the measure before voters in this year’s election.
A major contention in the case is the fact that the secretary of state’s ballot verification process was outsourced to a third party for the first time this year, and activists argued the company slow-walked the signature certification, potentially jeopardizing their ability to meet the printing deadline.
In a June letter, Oklahoma Election Board Secretary Paul Ziriax also asserted that the governor would have needed to issue an executive proclamation to officially certify any ballot initiative by late last month. But advocates have pushed back on that interpretation.
The court ruled that it would be assuming jurisdiction of the case—and that the dispute would be “held in abeyance because the time period for filing objections to either the signatures or the ballot title has not yet expired.” That meant that the justices were not ready to decide on the central question and will wait until the normal ballot placement process works itself out before weighing in.
At this stage, the court could have simply issued a declaration that the campaign failed to have their petition processed in time, keeping it off the November ballot. But rather than take that action, it’s temporarily letting the measure proceed through the normal challenge process despite state officials arguing that key deadlines have already passed.
That kicked off the 10-day challenge period, which has now seen several complaints filed. If the court resolves the remaining challenges in the campaign’s favor, the justices could then force the state to print the measure on this year’s ballot in spite of the allegedly now-passed deadlines. Alternatively, the measure could go before voters during the next state election—either in November 2024 or in a special election if one is called by the governor prior to then.
The measure would allow adults 21 and older to purchase and possess up to one ounce of cannabis, grow up to six mature plants and six seedings for personal use. The current Oklahoma Medical Marijuana Authority would be responsible for regulating the program and issuing cannabis business licenses.
A 15 percent excise tax would be imposed on adult-use marijuana products, with revenue going to an “Oklahoma Marijuana Revenue Trust Fund.”
The funds would first cover the cost of administrating the program and the rest would be divided between municipalities where the sales occurred (10 percent), the State Judicial Revolving Fund (10 percent), the general fund (30 percent), public education grants (30 percent) and grants for programs involved in substance misuse treatment and prevention (20 percent).
People serving in prison for activity made legal under the measure could “file a petition for resentencing, reversal of conviction and dismissal of case, or modification of judgment and sentence.” Those who’ve already served their sentence for such a conviction could also petition the courts for expungement.
OSML, which is being backed by the national New Approach PAC, is one of two citizen efforts to put legalization on the ballot that launched this year. The other campaign, Oklahomans for Responsible Cannabis Action (ORCA), was run by Green, the latest challenger of SQ 820.
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Gov. Kevin Stitt (R) claimed in his State of the State speech earlier this year that voters were mislead when they passed an earlier 2018 initiative to legalize medical marijuana in the state, arguing that the measure may require legislative reform.
The governor said that the ballot question passed by voters “was misleading, and it has tied our hands as we regulate the industry.”
For his part, state Rep. Scott Fetgatter (R) said in an op-ed for Marijuana Moment that was published in March that states should legalize cannabis, but he wants to see the legislature craft thoughtful regulations for an adult-use program, rather than leave it to voters at the ballot.
Meanwhile, an Oklahoma Senate committee in April unanimously approved a House-passed bill to allow for the cultivation and administration of psilocybin by eligible institutions for research purposes—but the version that senators advanced omits a broader decriminalization provision that had previously been included. The legislation was ultimately not enacted before the end of the session.
Photo courtesy of Mike Latimer.