Lawsuit over medical marijuana ballot item hinges on what’s clerical, technical

Opponents who want to remove a medical marijuana act from the ballot argued in court Monday that more than 15,000 of its voter signatures are invalid.

Meanwhile, the secretary of state’s office and the act’s sponsor said the act has enough signatures and the mistakes are due to allowable clerical and technical errors. The lawsuit is funded at least in part by the sponsor of a competing amendment.

The suit, Kara L. Benca vs. Mark Martin, was brought by Benca, a life-member of the National Organization for the Reform of Marijuana Laws, or NORML, a group that supports marijuana legalization.

The suit says more than 15,000 signatures gathered by the sponsor of the Arkansas Medical Cannabis Act were improperly counted by the secretary of state’s office. The act has qualified to be on the ballot in November. Disqualifying those signatures would bring the amount collected below the required 8% of the voters in the last governor’s election. The sponsors were required to collect 67,887 signatures and instead collected 77,516.

A hearing was held Monday before former Court of Appeals Judge John Robbins, a special master tasked with reporting to the Supreme Court.

There, Heidi Gay said she found the signatures that should be disqualified. Gay owns National Ballot Access, a signature collection company whose clients this year included Arkansas Wins in 2016, which sponsored a casino amendment, and the Arkansas Medical Marijuana Amendment, for which she collected more than 130,000 signatures and was paid more than $600,000. In addition, she said the amendment’s sponsor, David Couch, paid her $30,000 to find errors in the Arkansas Medical Cannabis Act’s signatures.

Couch and the sponsor of the act, Melissa Fults, worked together in 2012 to try to pass a narrowly defeated medical marijuana proposal but have since had a falling out and this year presented competing proposals that both qualified for the ballot. The proposals are similar but have differences. Among them, in the act, marijuana would be dispensed through nonprofit dispensaries, while in the amendment, the dispensaries would be for-profit companies. The act also would allow some patients to grow their own plants, while the amendment would not.

In an all-day hearing that will continue Tuesday, cases were presented by three sides: the petitioner, Benca, who is represented by her husband, attorney Patrick Benca; the secretary of state’s office, represented by A.J. Kelly; and Fults’ group, Arkansas for Compassionate Care, which acted as an intervenor and was represented by John Wesley Hall.

Kelly argued that Arkansas Code 7-9-109 requires ballot access seekers to be given deference regarding strictly clerical and technical errors.

Gay said under questioning by her attorney that she found 8,620 problematic signatures collected by paid canvassers, including the lack of a criminal background check from the Arkansas State Police and others where canvassers were listed as paid but were never certified by the secretary of state’s office. Paid canvassers are required to be certified; volunteers are not. Another 2,210 signatures came on pages where the canvasser is not identified as a paid canvasser or unpaid volunteer or was marked as a volunteer after being certified as a paid canvasser.

Gay said another 3,445 signatures had other problems, including some that had used post office boxes instead of residence addresses.

Under questioning from Hall, Gay said she had received the background checks from Couch, the amendment’s sponsor. Fults, the sponsor of the Arkansas Medical Cannabis Act, later testified that she had given part – but not all – of the affidavits to a mediator trying to settle their differences with the understanding they would not go to Couch.

Couch did not attend the proceedings. Asked to respond, he said he had looked at Fults’ ethics reports and paid canvasser lists and decided that many of her signatures should not count. He then requested copies of her canvasser training materials and background checks and hired Gay to check the dates when paid canvassers had registered or had completed their background checks. She had first found those problems and then found others. He said he had not paid Fults’ bill but did not dispute the amount.

Fults testified that most of her canvassers were volunteers – many of them medical patients or families of medical patients who benefitted from medical marijuana. During the two-year signature-gathering process, some gatherers were planned to be paid – thus, the reason they marked pages that way – but ultimately served as volunteers.

“They did it because they cared. They didn’t do it for the money,” she said through tears.

She later told reporters, “These people have worked for two years. They’ve given up everything to do this, including me and my husband. … We have patients that are (multiple sclerosis) patients, cancer patients, and they were still out there gathering signatures, so for them to try to throw those signatures out, it was offensive.”

She expressed optimism that her measure would stay on the ballot.

“There was a hint of an offer made last night, not by the secretary of state’s office, and I basically told them that we would fight until the bitter end, and we would win, and we weren’t going to walk away,” she said.