3 file lawsuit, cite confusion at state's polls

Complaint seeks to ensure voters told Issue 7 ditched

Three Arkansas voters filed a federal lawsuit Wednesday saying they have been disenfranchised in regard to voting for the issue of their choice as the result of confusion after the state Supreme Court's disqualification of one of two ballot measures seeking legalization of medical marijuana.

The court's decision mandating that votes not be counted for and against the Arkansas Medical Cannabis Act, known on the ballot as Issue 7, was issued last Thursday, the fourth day of early voting, after more than 144,000 people had voted. The court invalidated some signatures gathered in support of the proposal, leaving it with too few signatures to be on the ballot.

While it and the competing Arkansas Medical Marijuana Amendment, known as Issue 6, remain on the ballot, only votes on Issue 6 will be counted.

On Wednesday, two Marion County voters and a Pulaski County voter joined in filing a lawsuit seeking a temporary restraining order and injunctive relief to remedy the ensuing confusion.

The lawsuit, filed on their behalf by Little Rock attorney Jack Wagoner, asks that a judge order election officials to implement a way for people who voted for Issue 7, but would have voted for Issue 6 if they knew it was their only option, to correct their vote through an affidavit. He said this would "cure" due-process violations suffered by some of the 10 percent to 20 percent of Arkansans who had already voted before Issue 7 was stricken.

Wagoner is also seeking a court order requiring election officials to immediately ensure that poll workers and polling sites make voters aware of the correct information about Issue 7.

"Whatever notice is required in order to comply with due process in this highly unusual situation, the notice being provided at present does not meet the requirements of federal law," he asserts in the lawsuit.

The plaintiffs include Jim and Cynde Watson, registered voters in Marion County, who say they went to vote at the Marion County Courthouse after the court had issued its decision to disqualify Issue 7.

"When they were handed their ballots, they were told that two issues appeared on the paper ballots, but they had been removed," the suit states, citing the two issues as those concerning casino gambling and medical malpractice limits.

When Cynde Watson told the poll worker that Issue 7 had also been removed, the worker insisted "oh no, it has not," the lawsuit states.

It says the poll workers told the Watsons that Issues 6 and 7 both remained on the ballot, and "there was no way they could be removed now because so many early voters had cast their ballots."

Cynde Watson didn't believe the poll worker and voted for both issues, even though she had planned to vote only for Issue 7 before hearing that it was off the ballot. But Jim Watson took the worker's advice and voted for Issue 7, according to the complaint.

"If he had been given accurate information, he would have voted for Issue 6 either alone or in combination with Issue 7," the lawsuit asserts.

Meanwhile, the suit says, Sharon Boehm Hussman of Pulaski County plans to vote for Issue 6, but "is concerned about the confusion" surrounding the issues, "in particular with the fact that the Arkansas Supreme Court stuck down Issue 7 after early voting had begun and an estimated 10 percent to 20 percent of all votes that will be cast had been made."

"She is also concerned with the fact that there is no prominent notice posted at any of the polls where voters are likely to be informed that votes on Issue 7 will not be counted and that the only medical marijuana issue on the ballot is Issue 6," Wagoner wrote. He said ballots posted at most polling stations "do not have Issue 7 stricken through as they should."

The suit argues that "many people would have voted for 6, or will vote for 6, if they knew/know that votes for 7 would not count."

The suit names as defendants Secretary of State Mark Martin, who is the chairman of the state Board of Election Commissioners, and the six election commissioners. It asks that they be ordered to direct county clerks and election commissioners across the state to properly inform voters "from this point forward" that votes on Issue 7 will not be counted, and that Issue 6 is the only medical marijuana initiative on the ballot for which votes will be counted.

"Presently, there are no notices posted at the polls to this effect, or they are posted in inconspicuous places where they are unlikely to be seen by the majority of voters," the lawsuit says.

The suit includes a photograph of the double glass doors going into the Pulaski County regional building, one of several sites where early voting has been underway since Oct. 24. The photograph shows several notices and sample ballots posted on the door.

The suit contends that a "small orange posting on the bottom left of the door" explains that votes won't be counted on Issues 3 and 5, and is followed with a brief explanation of each issue. It says a notation in pen adds Issue 7, but says only that it is "the Medical Cannabis Act."

"This complaint seeks to ensure that the election complies with due process and is less vulnerable to challenge regardless of the outcome," Wagoner wrote. "This means attempting to create a voting environment where a voter cannot help but be informed that votes for Issue 7 will not count."

The complaint also includes photographs of an early voting location at 1800 Chester St. in Little Rock, where nothing is posted about Issue 7 on either of two posting locations that voters encounter when entering the building. It notes that in another series of postings closer to the voting room is the same penned-in notice about Issue 7 that was posted at the regional building.

The photographs were taken at those locations simply because they were close to his office, Wagoner said. He said voters have called his office to complain about the confusion, including the absence of signs at polling places.








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He asked that the court order that notice be given "in the best manner possible," and suggests two options:

They would force election officials to hand out or post an 8½-by-11-inch sheet of paper at all polling places in Arkansas with black letters in at least a 32-point font saying, "Notice: Although you will still see Issue Seven (7) on your ballot, if you vote for Issue Seven (7), the Arkansas Supreme Court has ruled that your vote will not be counted. The only remaining issue on the ballot related to medical marijuana is Issue Six (6). Voters for or against Issue Six (6) will still be counted."

"The remedy requested will entail little expense and could be put into effect immediately as each county certainly has access to a computer and printer that will allow them to print the required notices," Wagoner said.

He said he would prefer that polling places be required to give the notice to "each and every voter prior to the voter going into the polling booth," but offered as an alternate plan a requirement that the notice be posted "in at least three prominent locations at each polling location."

The case has been assigned to U.S. District Judge James Moody Jr.

Metro on 11/03/2016

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