Appeal filed to Arkansas Supreme Court to keep legalized recreational marijuana on ballot

Group urges court action before deadline

A caregiver points out the strength of an edible marijuana candy bar at a medical marijuana dispensary in Denver in this April 18, 2014 file photo. THC is the compound in marijuana that creates users’ “high” feeling. (AP/Ed Andrieski)
A caregiver points out the strength of an edible marijuana candy bar at a medical marijuana dispensary in Denver in this April 18, 2014 file photo. THC is the compound in marijuana that creates users’ “high” feeling. (AP/Ed Andrieski)

Officials for Responsible Growth Arkansas have filed an appeal with the Arkansas Supreme Court to overturn a decision by the Arkansas Board of Election Commissioners that would keep a proposed constitutional amendment legalizing recreational marijuana off the November ballot.

Steve Lancaster, counsel for Responsible Growth Arkansas, said in a news release Friday the organization filed a petition with the state's highest court to overturn the decision made by Arkansas Board of Election Commissioners earlier this week.

Commissioners on Wednesday unanimously denied the popular name and ballot title for the proposed constitutional amendment, saying the measure did not clearly state whether there would be a certain THC limit on edibles.

"After nearly 200,000 Arkansans signed Responsible Growth Arkansas' petition, the State Board of Election Commissioners incorrectly rejected the ballot title and thus thwarted the will of the people and their freedom to adopt laws by initiative," Lancaster said in the release. "The power to adopt laws by initiative lies at the heart of our democratic institutions. That power must be respected. The Court should correct the Board's error and let the people decide."

The petition states Responsible Growth Arkansas seeks a preliminary injunction because the Aug. 25 deadline for certification of initiated measures is pressing, and it asks the court to order John Thurston, Arkansas' secretary of state, to conditionally certify the petitioners' proposed initiated amendment pending the court's decision.

"It is unlikely that this Court will be able to decide this action before that deadline," the petition states. "Petitioners therefore ask the Court to issue an expedited briefing schedule, to expedite its consideration of this action, and to issue a preliminary injunction requiring Secretary Thurston to certify the Amendment provisionally by the August 25 deadline."

The proposed constitutional amendment would issue adult-use cannabis cultivation and dispensary licenses to businesses that already hold licenses under the state's medical marijuana program, followed by an additional 40 licenses chosen by a lottery.

Board of Election Commissions member Bilenda Harris-Ritter, the Republican Party's designee, made the motion to deny the ballot title and popular name for the amendment partly because it would repeal the current THC limits without explaining if a new limit would be set.

THC, or tetrahydrocannabinol, is the main psychoactive compound in marijuana.

"I know they can't put every single thing in here, but I think that is significant enough," she said.

Lancaster argued that the role of the Board of Election Commissioners is not to judge the amendment itself but to see if the ballot title has language that is misleading or omits information that could change a voter's mind.

Lancaster also said the ballot title explains that while the THC limit would be repealed, the Alcoholic Beverage Control Division will be in charge of making new rules with requirements for child-proof packaging and restrictions on advertising that appeals to children. He said the repeal of the THC limit doesn't mean the limit is gone, and argued that the ballot title explains the rules would be decided by the Alcoholic Beverage Control Division.

Certification of the ballot title and popular name is one of the two requirements under state law for a proposal to get on the general election ballot. The other requirement is for the secretary of state to certify the sponsor has submitted the required number of valid signatures of registered voters on petitions.

Petitioners said in July they had submitted 192,828 signatures, more than twice the number required, in their bid to qualify the measure for the general election ballot.

The measure was approved by the secretary of state after signature counters reached 90,000 verified signatures last week.

Lancaster said in the petition that supporters of the proposed amendment have a reasonable probability of success in court because Board of Election Commissioners did not correctly apply the state Supreme Court's standards for the sufficiency of popular names and ballot titles.

Lancaster argues in the petition that the board impermissibly expanded its authority over ballot titles under Amendment 7, and thus unduly restricted the right to initiative.

"The Board ignores the 'most significant rule in determining the sufficiency of the title,' which 'is that it be given a liberal construction and interpretation in order that it secures the purposes of reserving to the people the right to adopt, reject, approve, or disapprove' the amendment," the petition states.

Lancaster said the board applied an overly stringent standard that ignored this court's precedent, which does not require a ballot title to include every detail, term, definition or how the proposed measure may work.

The initiative limits the sale of cannabis to people 21 or older and prohibits advertising and packaging designed to appeal to children. It provides regulatory oversight by limiting the number of licensed businesses, and does not allow for homegrown cannabis.

It also limits the number of cannabis licenses to 20 cultivators and 120 dispensaries statewide, which includes existing medical marijuana licenses.

Medical marijuana patients spent $22.29 million at Arkansas dispensaries in June, obtaining 3,926 pounds of cannabis, according to the Arkansas Department of Finance and Administration. On average, patients spend $22.37 million each month among the state's 38 dispensaries to purchase approximately 3,920 pounds of marijuana.

There were 88,012 active medical marijuana ID cards in the state as of July 30, according to the state Department of Health.

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