A look at ‘What’s next?’ for proposed Arkansas ballot issues

Editor’s note: Justin Allen is a partner with the Little Rock-based law firm of Wright Lindsey Jennings. He leads the firm’s governmental relations group. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics.
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This last Friday (July 8) was the deadline to turn in signatures from Arkansans to place issues on the ballot for the upcoming general election in November. These issues can come in the form of an amendment to our constitution, or an initiated act, which is simply a new law passed by the people, as opposed to the General Assembly.

Three sets of petitions were turned in, all three of them proposing amendments to the Constitution. The three proposals are as follows: 1) allowing for the cultivation and sale of marijuana for medicinal purposes (turned in 106,000 signatures); 2) allowing casino gaming in Miller, Washington and Boone counties (turned in 92,120 signatures); and, 3) limiting damages available to a plaintiff in a medical malpractice lawsuit (turned in 131,000 signatures).

Signatures for an initiated act involving medical marijuana were previously turned in and last Thursday the Secretary of State approved it for the ballot.

So, with these signatures turned in, what happens next?

The Secretary of State’s office will review them in order to determine whether there are a sufficient number to qualify for the ballot. In order to qualify, all three measures will ultimately have to submit 84,859 valid signatures, from at least 15 different counties. The Secretary of State has 30 days to review the signatures.

If the Secretary of State throws out enough signatures that the number of valid ones drops below the 84,859 threshold, the proponents can gather more signatures in what is known as the “cure period.” However, the proponent can take advantage of the cure period ONLY if its initial submission has at least 75% of the required number of valid signatures. That is, if the signatures turned in on July 8 don’t contain at least 63,644 valid signatures, the proponents cannot collect additional signatures and the measure won’t be placed on the ballot.

Even if the measures are certified by the Secretary of State, like the medical marijuana act approved last Thursday, it’s possible that one or more could be challenged in the Arkansas Supreme Court. There are two types of lawsuits that can be filed. One would challenge the validity of the signatures and the other would challenge the sufficiency of the ballot title.

A challenge asserting that there are an insufficient number of valid signatures, or that the petitions were not gathered correctly, is essentially a lawsuit requiring proof of the alleged deficiencies. This is a very fact intensive process typically involving investigators, handwriting experts, depositions, and other experts. These challenges must be conducted in a very quick manner and are tried before a master appointed by the Supreme Court, who then makes a recommendation to the full Court.

As for a ballot title challenge, that is an argument that the ballot title provided to the voters is confusing, misleading or doesn’t adequately convey the meaning and impact of the measure if adopted. The Arkansas Supreme Court has heard many of these challenges the last several decades and, as you might guess, it has invalidated some, and upheld some.

So, while the first batch of signatures has been submitted, the issues for consideration on Nov. 8 are far from settled. In fact, it could be September or October before we know for certain what will be on the ballot, or even counted if it appears on the ballot.

Finally, there is some uncertainty as to what will happen if both medical marijuana measures receive the votes necessary for adoption. The Arkansas Constitution, in anticipation of such a situation, does state: “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.”

Based on the plain language of this provision, it seems that whichever measure receives more votes will be the law on medical marijuana in Arkansas. On the other hand, one might argue the constitutional measure would control since the Constitution trumps statute. As is usually the case in interpreting laws, there is some ambiguity here and, depending on what happens, this issue too may have to be sorted out in the courts.