Medical marijuana: The one with the most votes wins … probably

Arkansans may have the chance to vote on two medical marijuana initiatives in November. What happens if both pass? The one with the most votes wins, probably.

In a letter dated Oct. 27, 1994, from then-Attorney General Winston Bryant to then-Rep. Mark Riable of Little Rock, the letter noted that Amendment 7 to the Arkansas Constitution says, “If conflicting measures initiated or referred to the people shall be approved by a majority of the votes severally cast for and against the same at the same election, the one receiving the highest number of affirmative votes shall become law.”

The letter, which was prepared by Assistant Attorney General Elisabeth Walker, came in response to question from Riable about what happens when voters are asked to choose between a referendum referred by the Legislature to the voters, and a similar initiative by voters. Bryant noted that there could be a question as to the meaning of the terms “initiated” and “referred.” He said no appellate court decision had settled the matter.

“It seems clear from the uncertainty in the current state of the law that this issue remains to be decided by the courts,” he wrote.

The conflicting marijuana proposals involve not a referendum and an initiated act, but instead a voter-initiated act and a voter-initiated constitutional amendment.

The initiated act, backed by the group Arkansans for Compassionate Care, qualified for the ballot July 7. The next day, supporters of the other effort, the Arkansas Medical Marijuana Amendment, submitted an estimated 106,268 signatures that will have to be verified as coming from registered voters. Its sponsor, attorney David Couch, said the amount probably will be short of the 84,859 signatures by registered voters needed to qualify. If so, the group would have 30 days to collect signatures, which Couch said would not be a problem.

The two proposals differ in several ways, starting with the fact that one is an initiated act and the other is an amendment. That being the case, would an amendment passed by the voters trump a law passed by the voters?

Not by the reading of the Constitution, said Justin Allen, an attorney with Wright Lindsey Jennings.

“There is nothing affirmatively stating a constitutional amendment will trump an initiated act,” he said. “One could certainly argue that it should, but the plain language here suggests otherwise. Moreover, the voters may have decided they prefer a statute over an amendment.”

How else do they differ? Both would set up dispensaries where people could obtain medical marijuana, but Arkansans for Compassionate Care’s dispensaries would be run by non-profits and would include a provision allowing people to grow their own marijuana if they live too far from a dispensary. Couch’s version also lists only 14 ailments that would qualify for use, while Arkansans for Compassionate Care’s version lists about 50.

A proposal to legalize medical marijuana narrowly was rejected by voters in 2012. A Talk Business & Politics-Hendrix College Poll conducted June 21 found that 58% of respondents support the idea.