The Arkansas Supreme Court today ruled that the initiated act (Issue 7) to allow medical marijuana failed to qualify for the ballot for deficiencies in signature gathering and votes on it will not be counted.
It disallowed more than 12,000 signatures, enough to leave the petition drive 2,465 signatures short of the 67,887 needed.
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Chief Justice Howard Brill and Justice Paul Danielson dissented from the decision, written by Justice Karen Baker. Joining Baker were Justices Jo Hart, Rhonda Wood, Robin Wynne and Courtney Goodson.
That leaves a single medical marijuana initiative on the ballot Nov. 8, a constitutional amendment that would allow for-profit dispensaries regulated by the state Alcoholic Beverage Control Division.
Melissa Fults, who worked several years on the effort on a shoestring, said on Facebook after the ruling that they would seek a rehearing from the court, but these are rarely granted. She added:
At the moment, we are still reeling. ….
Until we have more information, please continue to vote for both issues.
We can not allow them to railroad us with big money. We had volunteers work tirelessly with little or no money. Yet, they can bring in nearly a million dollars and buy their way to the ballot and buy us off the ballot.
Kara Benca, a supporter of decriminalizing marijuana, filed the lawsuit challenging the petitions. Supporters of the act noted that her complaint relied on information developed by backers of the marijuana amendment, a political fact that could discourage some marijuana supporters for voting for the remaining Issue 6.
The Court ruling today did not follow findings of Special Master John Robbins, a retired judge who heard challenges to signature validity. He’d disqualified 2,087 signatures, but accepted the remaining ones, enough to qualify for the ballot. But the final decision went to the Supreme Court.
Benca raised six arguments about technical compliance with new state law on canvassing requirements. A key argument challenged 8,620 signatures, which she said should be disqualified because they were gathered by paid canvassers and they had not met rules set out for paid canvassers, including required State Police background checks. The special master said it was undisputed that most canvassers were volunteers. He said he couldn’t determine how many of these signatures fell under that category and accepted them all.
The Supreme Court determined that 7,580 signatures were disqualified because the organizers had either failed to perform background checks or performed them after they said they’d been done. It disqualified the other 1,040 because they were either collected by paid canvassers who’d not been disclosed or the signatures were gathered before the canvassers were disclosed to the secretary of state. The court said the law interpreted paid canvassers to include those with whom an agreement exists to pay money.
The court threw out another 3,329 signatures for not having a residential address of the canvassers — some gave no address, some a PO box, some a business address.
The court threw out another 155 signatures where the canvasser supplied a date before a voter signed.
The court rejected a challenge of some 2,200 signatures on petitions where canvassers didn’t properly check a box meant to indicate if the canvasser was paid. It also rejected a claim that about 2,000 more signatures hadn’t been witnessed by canvassers. The court said no evidence to support that argument had been produced.
In all, needing 67,887 signatures, the Supreme Court found that its disallowance of 12,104 signatures left the petitions 2,465 short, at 65,412 valid signatures.
The dissent noted the special masters’ finding that most canvassers were volunteers and didn’t expect to be paid. Baker’s opinion took sharp aim at that finding on a segment of votes that were key to disqualifying the measure.
Finally, we must note that the dissent states that
this original action . . . raises issues of fact, and the master found that “most of the Sponsor’s canvassers were volunteers and many of the canvassers . . . were only to be paid if sufficient funds were contributed to the petition drive in the future,” I would hold that sections 7-9-601 and 7-9-1,26(b)(3)(A) pertaining to paid canvassers are wholly inapplicable to the case at bar.
This position treats this matter solely as a factual one, evades the applicable law, and is not supported by decades of precedent regarding statutory interpretation.
…”[t]he mere fact that a statute may seem to be more or less unreasonable or unwise does not justify a court in annulling it, as courts do not sit to supervise legislation. Courts do not make the law; they merely construe, apply, and interpret it. Today we have simply interpreted the laws enacted by our General Assembly — shall means shall and the Sponsor did not comply with the statutes.
But the dissent, written by Brill, said Benca had failed to prove any of the canvassers were paid.
Because the master found that “most of the Sponsor’s canvassers were volunteers and many of the canvassers. . were only to be paid if sufficient funds were contributed to the petition drive in the future,” I would hold that sections 7-9-601 and 7-9-126(b)(3)(A) pertaining to paid canvassers are wholly inapplicable to the case at bar. Thus, given our deference to the master’s findings, and given the constitutional provision expressly placing the burden of proof on the challengers, Benca failed to meet that burden of proof, pursuant to amendment 7. Accordingly, I agree with the master’s finding that the 8,620 signatures challenged by Benca in count two should be counted. I would also accept the master’s report in its entirety.
He said the people should be permitted to vote.
Justice Courtney Goodson wrote a separate opinion concurring with majority but asserting “this case illustrates that the General Assembly has made it unduly difficult for measures to be placed on the ballot.”
That, of course, is exactly what was intended by the new canvassing legislation, written by legislators looking out for the interests of the Oaklawn Park and Southland Park casinos, who hoped to discourage petition efforts to allow more casino competition in Arkansas. Such a petition was circulated this year, but the Supreme Court disqualified it for flaws in its ballot title. Its signatures also were challenged, but the court didn’t reach that question. The court also invalidated an amendment to limit damages in nursing home law suits for ballot flaws. The Supreme Court today formally entered mandates in all those cases decided earlier
The surviving marijuana amendment was challenged only on its ballot title and survived.
All the measures that were invalidated remain on the ballot and many voters will cast ballots for them, but by Supreme Court order, those votes may not be counted.
Early voting began Monday and many early voters are furious that the ruling took this long because some voted for 7, but against 6 and now wish they had voted for both. About 165,000 early votes had been cast through 4 p.m. today.