To the dismay of the Arkansas Board of Election Commissioners, an adult-use cannabis ballot measure’s title is not misleading, and the question will be decided by voters this November, the state Supreme Court ruled Sept. 22.
That ruling also came as a defeat to Save Arkansas From Epidemic (SAVE) and Safe and Secure Communities, which forced their way into the lawsuit after filing motions to intervene in an attempt to keep the legalization measure off the ballot. The filing by SAVE included an affidavit from Kevin Sabet, the co-founder of Smart Approaches to Marijuana (SAM), a notorious prohibitionist group.
In a split decision by the Supreme Court, the majority opinion ruled that the ballot title for Responsible Growth Arkansas’ proposed constitutional amendment properly informs voters and is sufficient for inclusion on the Nov. 8 ballot.
“We conclude that the ballot title at issue is complete enough to convey an intelligible idea of the scope and import of the proposed amendment,” Justice Robin Wynne wrote in the majority opinion. “Therefore, respondents and intervenors have not met their burden of proving that the ballot title is insufficient. The people will decide whether to approve the proposed amendment in November.”
The legal battle, in part, stemmed from the ballot referendum’s aim to repeal the THC dosage limit—specifically in food and beverage products containing cannabis—under Arkansas Amendment 98, the medical cannabis ballot measure that voters passed with a 53.2% majority in the 2016 election.
In a Sept. 2 reply brief filed by Responsible Growth attorneys from Wright, Lindsey & Jennings LLC, the legalization proponents argued that the referendum’s title specifically informs voters that the ballot question aims to repeal that section from Amendment 98 that places a 10-milligram limit on THC in infused edible and beverage products.
In that brief, the attorneys wrote, “Referring to existing law provides substantial information to voters. This court has held that ‘every person is presumed to know the law.’ Voters therefore presumptively know the existing law referenced in the ballot title.”
The Supreme Court’s majority agreed in this week’s opinion, reaffirming that the court has repeatedly stated in previous decisions that a ballot title “need not” summarize existing law.
“We are not convinced that specific details about the repeal of THC dosage limits in a category of marijuana-containing products is ‘so significant and material that it would give the voter serious ground for reflection,’” Wynne wrote. “Repeal of dosage limits is not a fundamental provision of the proposed amendment such that failing to describe it renders the ballot title insufficient.”
In addition, election officials and intervenors argued the ballot title didn’t sufficiently explain child-resistant packaging and restrictions on advertising; the effects of the proposed amendment on the industrial hemp industry; the creation of tier one and tier two cultivation licenses; and the definition of an adult as a 21-year-old as it pertains to “adult-use” cannabis.
The Supreme Court’s majority dismissed those arguments too, ordering that the 2022 adult-use cannabis measure appear on the ballot and be counted.
“The ultimate issue is whether the voter, while inside the voting booth, is able to reach an intelligent and informed decision for or against the proposal and understands the consequences of his or her vote based on the ballot title,” Wynne wrote. “It is not our purpose to examine the relative merit or fault of the proposed changes in the law; rather, our function is merely to review the measure to ensure that, if it is presented to the people for consideration in a popular vote, it is presented fairly.”
The Supreme Court’s decision comes after Responsible Growth Arkansas organizers submitted 190,000-plus signatures July 8—more than double the required 89,151 valid signatures necessary to land on the ballot. Secretary of State John Thurston certified the signatures on July 29 for the ballot, but then the state Board of Election Commissioners (chaired by Thurston) rejected the measure (as misleading in its title) on Aug. 3.
Responsible Growth advocates filed a lawsuit Aug. 4 in the state’s Supreme Court to challenge the board’s decision.
“We’re extremely grateful to the Supreme Court that they agreed with us and felt like it was a complete validation of everything we’ve done,” Steve Lancaster, an attorney for Responsible Growth Arkansas, said in a public statement Sept. 22. “We’re excited and moving on to November.”
Included in the nuts and bolts of the group’s ballot proposal, the measure aims to:
legalize cannabis for adults 21 and older;establish a licensed program for commercial cultivation and retail;authorize the Alcoholic Beverage Control (ABC) Division to regulate the industry; andlevy a 10% “supplemental sales” tax at retail with 70% of revenue going to the state’s general fund.
Existing medical operators would be grandfathered into the expanded adult market, while an additional 12 cultivation and 40 retail licenses would be awarded through a lottery. But existing medical operators would be given a leg up in the new market.
Under the ballot proposal, each medical operator would be able to double its existing retail footprint (but no more than 18 adult-use dispensaries per ownership) while new market entrants could not open a dispensary within 5 miles of those preestablished retailers. In addition, new market entrants in cultivation would be limited to growing no more than 250 mature cannabis plants at any one time.
Taking aim at the absence of a home cultivation provision, Arkansas NORML Treasurer Melissa Fults opposes the Responsible Growth measure on the heels of a 2020 initiative that she helped lead falling short on a signature gathering attempt more than two years ago.
Responsible Growth’s 2022 ballot measure also omits a provision to expunge criminal records. Within the filed initiative, there is no mention of expungement, social equity, restorative justice or individuals disproportionately impacted by prohibition.