Arkansas Supreme Court rules medical marijuana votes won’t be counted

Votes for the Medical Marijuana Amendment of 2024 will not be counted after the Arkansas Supreme Court ruled Monday (Oct. 21) that the popular name and ballot title were misleading.

The 4-3 decision on Issue 3 came as voters were already casting their ballots. Associate Justice Shawn Womack was joined in his opinion by Justice Barbara Webb and by Special Justices Don Curdie and Bilenda Harris Ritter. The latter two were appointed by Gov. Sarah Huckabee Sanders after Chief Justice Dan Kemp and Justice Courtney Hudson recused.

Justices Karen Baker, Rhonda Wood and Cody Hiland dissented. Baker and Wood face each other in this year’s race for chief justice.

The court agreed with the case’s intervenors, Jim Bell and Protect Arkansas Kids, that the proposed amendment’s popular name and ballot title were misleading.

Womack gave three reasons. First, he wrote that the popular name, “Arkansas Medical Marijuana Amendment of 2024,” did not mention that passage would legalize possession of up to an ounce of marijuana for any purpose if marijuana becomes legal under federal law.

He wrote that “‘medical marijuana’ does not invoke in the voters’ minds the widespread possession and use of marijuana for any and all purposes. This, alone, is enough to render the proposed amendment insufficient.”

Second, Womack wrote that the popular name did not mention the amendment would have changed the Constitution in Article 5, Section 1, which allows the Legislature to amend or repeal citizen-initiated amendments by a two-thirds vote of both the House and Senate.

Under the amendment, changes to any future amendment of any kind would have required a subsequent public vote unless the amendment said otherwise. Womack said that change was contained in the next to last sentence of an almost 900-word ballot title and was not related to marijuana.

Third, Womack wrote that the ballot title is misleading because it did not inform voters that the General Assembly would not be able to amend Amendment 98, which voters passed in 2016 to allow for the sale and possession of medical marijuana. Meanwhile, the proposed amendment would have changed Amendment 98 in at least 20 ways.

Issue 3 would have made a number of changes to an amendment passed by voters in 2016 that legalized medical marijuana. Those would include allowing access based on any medical need rather than the current list of qualifying ailments; allowing patients and designated adult caregivers to grow up to 14 marijuana plants; and allowing physician assistants, nurse practitioners and pharmacists to certify medical marijuana cards.

The amendment also would have allowed patients to be certified by visiting a medical practitioner via telemedicine. It also would make medical marijuana available to individuals who are not Arkansas residents. It would remove application fees for identification cards and would lengthen the expiration date for new cards from one year to three.

The amendment also included a trigger law allowing adults to possess an ounce of cannabis if marijuana is no longer listed on the federal government’s Schedule of Controlled Substances or if Congress changes the law so that marijuana possession is no longer a federal crime.

The court disagreed with Secretary of State John Thurston’s contention that Arkansans for Patient Access had failed to meet the 90,704 signature requirement to qualify for the ballot. Thurston had disqualified signatures collected by paid canvassers, saying the group as “the sponsor” had failed to certify canvassers had no disqualifying offenses. Womack wrote that Nationwide Ballot Initiative, the company employing the canvassers, had certified on the sponsor’s behalf.

In his dissent joined by Wood and Baker, Hiland wrote that popular names are not required to include the same detailed information as ballot titles. The popular name must not be misleading, contain catchphrases or have partisan coloring, and must be intelligible, honest and impartial. He wrote that the popular name isn’t misleading when read with the ballot title.

“This court has stated time and again that the most significant rule regarding ballot titles is that they ‘be given liberal construction and interpretation in order that it secure the purposes of reserving to the people the right to adopt, reject, approve or disapprove legislation.’ It is not the job of this court to analyze the merits or faults of the proposed amendment; but instead, we function solely to review the measure to ensure that it is presented to the people for fair consideration,” he wrote.

Arkansans for Patient Access released a statement shortly after the ruling was released saying, “We are deeply disappointed in the Court’s decision. It seems politics has triumphed over legal precedent. The medical marijuana program is strongly supported by the people, evidently not so much by the politicians. More than 150,000 Arkansans hailing from all seventy-five counties signed petitions asking for an opportunity to vote on the Medical Marijuana Amendment of 2024. Today, the politicians ignored their requests. 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. 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.”

Family Council Action Committee Executive Director Jerry Cox issued a statement praising the ruling and saying his group will continue opposing marijuana in Arkansas.

“This is a good decision,” he said. “The constitution is our state’s most important governing document, and any effort to change it must go through a rigorous and thorough process. The bar should be high, and any effort that doesn’t meet it shouldn’t make the ballot. Today’s Arkansas Supreme Court decision helps protect the integrity of our election process and our constitution.”

A poll by Talk Business & Politics and Hendrix College conducted in September found the amendment registered 54% support with 35.5% opposed and 10.5% undecided.