Court strikes medical ‘ pot’ initiated act

Issue 7 votes won’t count; those on rival Issue 6 will

After earlier surviving a court challenge filed by some of the largest lobbying organizations in the state, the Arkansas Medical Cannabis Act was disqualified Thursday by the state Supreme Court in a ruling on a lawsuit supported by the backer of a competing ballot measure.

The high court issued its opinion invalidating some of the signatures gathered in support of Issue 7, and that left it with too few. The ruling came down on the fourth day of early voting in Arkansas for the Nov. 8 general election.

Supporters and some opponents of the two competing ballot measures to allow marijuana to be used for medical purposes lamented the timing of the court’s decision. More than 144,000 people had already voted by Wednesday evening — more than 8 percent of registered voters. About 21,000 more voted Thursday.

Votes for and against the initiated act won’t count, and voters who have already cast ballots won’t get a redo.

“For every signature, there are stories,” said Aubrey Buchanan, who held an Issue 7 sign outside the Pulaski County Election Commission on Thursday morning. “This is life. People are dying, and they’re sick and they’re hurt. Can’t we have a choice?”

She said she did not support Issue 6 — the Arkansas Medical Marijuana Amendment.

Several hours after the ruling, Arkansans for Compassionate Care, the group that supports the Arkansas Medical Cannabis Act, asked supporters to vote for both Issue 6 and Issue 7.

“The sponsors of the Arkansas Medical Cannabis

Act will fight this decision, but the priority for compassionate Arkansans is and has always been that patients have safe access to medical cannabis,” the group said in a statement.

Melissa Fults, campaign director for Arkansans for Compassionate Care, said the group planned to file a complaint today with a federal judge about the decision. She said she did not believe that the state Supreme Court could invalidate a ballot measure in the midst of an election.

“We feel that we have been unjustly removed from the ballot,” she said.

But David Couch, the Little Rock- based lawyer who is sponsoring Issue 6, said medical marijuana is now more likely than ever to be approved by voters in Arkansas. Fults had long argued that the presence of two medical marijuana ballot measures would split the vote. Earlier this year, Arkansans for Compassionate Care was the first of the two camps to submit the required signatures to get the measure on the ballot and asked Couch to withdraw his measure.

“There are going to be some people mad about it that supported [ Issue 7] and may not go to the poll, or who may just vote no out of spite, but I think this really helps,” Couch said of the court’s decision. “If you look at the criticisms of the governor and the opponents, the majority of the criticism has been leveled against provisions that are within Issue 7 and not within Issue 6.”

Those included Issue 7’ s proposed grow- your- own provision, about 55 qualifying medical conditions and taxpayer funding for some medical marijuana patients, Couch said.

“Those are the three things that I heard in our debates and forums as the top issues,” he said. “They’re gone now.”

In the wake of the court’s ruling on Issue 7, support and opposition began focusing on Issue 6.

Gov. Asa Hutchinson said he would double- down on his opposition to the amendment, while U. S. Senate candidate Conner Eldridge, a Democrat, announced his support for it.

The lawsuit that ultimately disqualified Issue 7 was filed by Kara Benca, a Little Rockbased lawyer. Her husband, Patrick Benca, served as her lawyer in the complaint to the state Supreme Court.

Couch provided research for the lawsuit.

“The backers of Issue 7, primarily the backers from Washington, D. C., wanted us to not turn in our petitions. I told them that based on my opinion, that Issue 7 had problems with its signature collection and that if it was challenged, that it would be taken off of the ballot,” Couch said. “They actually provided me with a lot of the information that I used to do that analysis.”

He said he went forward with his marijuana amendment because he feared that the initiated act would be taken off the ballot because of a legal challenge.

Patrick Benca said Thursday that he expected to be paid by Couch for the challenge he

filed.

“I have not submitted a bill to him yet, but I plan to,” Patrick Benca said. “It would just be my normal rate to handle that hearing and to handle the appeal to the Supreme Court.”

He said his wife had been getting a lot of grief about the court challenge.

“My wife and I have always been proponents of medical marijuana and decriminalization of marijuana across the board, so we’re not doing anything to harm the movement. That’s not our purpose,” he said. “This is a win for all those patients in Arkansas.”

Kara Benca had argued that 15,000 signatures gathered by supporters of the proposed act were invalid because some canvassers did not include their residences on petition forms, failed to properly date their verification of signatures and did not watch residents sign petitions, as required by law.

Arkansans for Compassionate Care submitted 117,547 signatures. Secretary of State Mark Martin’s office validated 77,516 of them.

After reviewing the case, the court said roughly 12,104 were invalid. That left approximately 65,412 valid signatures — about 2,500 short of the necessary amount, 67,887.

The largest chunk of signatures — about 7,580 — were disqualified because Arkansans for Compassionate Care either failed to perform background checks or conducted the checks late on petitioners identified as to- be- paid, according to the majority opinion written by Justice Karen Baker.

“Today, we have simply interpreted the laws enacted by our General Assembly —

‘ shall’ means ‘ shall’ and the Sponsor did not comply with the statutes,” Baker wrote.

The majority decision rejected the opinion of a special master appointed by the court to examine the facts of the case.

In a concurring opinion, Justice Courtney Goodson wrote that, based on the law, the court had to disqualify Issue 7. However, she said, the law in question “impermissibly impinges on the constitutional right of our citizens to propose laws and amendments to the Arkansas Constitution.”

In a dissenting opinion, Chief Justice Howard Brill wrote that he would accept the special master’s opinion, which found that Benca had proved, at best, that only 2,087 of the 77,516 signatures should be disqualified.

Brill quoted Fults, the campaign director for Arkansans for Compassionate Care. She told the special master:

“Unlike all the other initiatives that were out there, we didn’t have hundreds of thousands of dollars. So most of our people that ended up being paid canvassers were volunteers originally. And at one point, we thought we were going to get a donation. And so several said, ‘ Yeah, put me on the list to be a paid canvasser.’ And when we didn’t get the money, they said, ‘ Well, I’d rather just be a volunteer anyway.’”

As a result, Brill wrote that Issue 7 should not be disqualified on the basis of laws that apply only to paid canvassers.

While there were errors, “these errors are not a complete failure with regard to the sufficiency of the signatures on the petition,” he wrote. “The proposed act should remain on

the ballot. The people should be permitted to vote on the initiative on November 8, and their votes should be counted.”

Fults said Thursday that she did not believe that the court was allowed to invalidate votes after the election had begun. She cited a passage from the secretary of state office’s Initiatives and Referenda handbook:

“If the sufficiency of any petition is challenged such cause shall be a preference cause and shall be tried at once, but the failure of the courts to decide prior to the election as to the sufficiency of any such petition, shall not prevent the question from being placed upon the ballot at the election named in such petition, nor militate against the validity of such measure, if it shall have been approved by a vote of the people.”

Issue 7 had prevailed in a separate challenge, filed by Arkansans Against Legalized Marijuana, which claimed that the proposed act’s ballot summary was missing information needed by voters to make an informed decision.

Members of Arkansans Against Legalized Marijuana include: the Arkansas State Chamber of Commerce, the Arkansas Farm Bureau Federation, the Coalition for Safer Arkansas Communities, the Family Council Action Committee and the Arkansas Committee for Ethics Policy. Arkansas Surgeon General Gregory Bledsoe serves as the spokesman.

The initiated act’s “ballot title is an impartial summary of the proposed measure that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law,” wrote Justice Josephine Hart in the Supreme Court’s September opinion.

Opponents of both Issue 6 and Issue 7 said they were concerned that the decision came after early voting had begun.

In a statement, Hutchinson said: “There’s always some disappointment whenever the people don’t have an opportunity to voice their vote at the polls. A decision such as this so close to the election will unavoidably result in voter confusion as the issue will remain on the ballot but votes cast for the measure will not be counted.”

The governor, a former head of the federal Drug Enforcement Administration, said the filing deadline for initiative petitions put the court in a difficult position.

“The legislature should consider amending the Arkansas Constitution to move that deadline in order to prevent the Court from having to make decisions on initiated ballot measures so close to the election,” Hutchinson said in his statement.

In Rogers on Thursday, Hutchinson told a reporter that he will step up his opposition to the remaining ballot measure. He said the cost of regulating the marijuana amendment would be higher than the tax income it would produce.

“We will have to hire people, including auditors, and the new sales tax revenue will not be sufficient to cover the costs,” he said. “We’re going to have to have a whole new regulatory segment for this part of the economy if this passes. We have none of what we need to regulate this in place now.”

Bledsoe also lamented the timing of the decision.

“There’s a large group of people out there, and it’s not that they feel strongly about marijuana. They feel strongly that the government is just out of control,” he said.

“My personal feeling is that we’re 12 days out from having Arkansas voters weigh in on this. It’s been a long campaign. I think it would have been better to have the vote because, at this stage in the game, it’s disillusioning to those who are very passionate about this subject.”

Twenty- five states, the District of Columbia, Guam and Puerto Rico either allow medical- marijuana use or are in the process of doing so, according to the National Conference of State Legislatures.