Could Recent Legalization Measures Be Overturned in Court?

During Tuesday’s midterm election, voters approved measures in Maryland and Kentucky to establish a legal adult-use cannabis industry. The measures for adult-use legalization in Arkansas, North Dakota and South Dakota failed.

While the measures’ passage in two states is a major step forward, challenges still lie ahead toward establishing adult-use markets in Maryland and Kentucky.

One potential challenge could take place in a courtroom. Opponents of legalization have a history of challenging ballot measures with lawsuits before, and sometimes even after, Election Day.

It happened with South Dakota in 2020 after voters passed a measure to set up an adult-use industry. Nearly a month after that measure passed, Pennington County Sherriff Kevin Thom and South Dakota Highway Patrol Col. Rick Miller filed a lawsuit, which was supported by Gov. Kristi Noem, to challenge the measure.

The state’s supreme court ultimately ruled that Amendment A violated the state’s single-subject rule in Article XXIII of the South Dakota Constitution and therefore was an unconstitutional ballot initiative.

Many of this year’s ballot initiatives faced extended litigation by opponents prior to the election.

In Oklahoma, the state’s Supreme Court ruled 9-0 in September not to place an adult-use initiative on the ballot this year due to election officials delaying the process of certifying signatures. However, Oklahoma voters have another shot at legalizing cannabis next year, as “Gov. Kevin Stitt declared a special election will be set for March 7, 2023, at which point voters will finally confront State Question 820,” Cannabis Business Times reported.

In Arkansas, the board of elections argued the initiative’s language was unclear and sought to remove it from the ballot; however, in late September, the Arkansas Supreme Court overturned the denial, leaving legalization’s fate in the hands of voters.

Meanwhile, in Kentucky, the state’s initiative petition was approved Aug. 9 by Secretary of State Jay Ashcrof. Shortly after, a Kentucky resident, with support from Protect Our Kids, filed a lawsuit Aug. 19 to take the adult-use measure off the November ballot.

“The Kentucky suit claimed the group behind the legalization initiative, Legal Kentucky 2022, had not gathered enough valid voter signatures to put the measure on the ballot and that the measure violates Kentucky law and the state’s constitution,” CBT reported. (That is the measure, however, that did move forward and passed Nov. 8.)

Paul Armentano, deputy director at the National Organization for the Reform of Marijuana Laws (NORML), says opponents have shifted their efforts to try to keep voters from weighing in on the issue through litigation, “whereas in the past, they would’ve raised funds and tried to put forward a very sort of high-profile campaign to persuade voters to vote no.

“The larger issue here is that for years, I think there was a sincere belief among our political opponents that they had a chance of persuading a majority of voters to reject these sort of ballot initiatives if they simply put forward a persuasive campaign,” Armentano says. “I think there’s been a recognition in recent years that they have simply lost the heart and minds of the American public and that if and when these issues go to ballot, the very likely result is that they will pass. And that no amount, no level of any sort of high-profile opposition campaign, is going to change that outcome.”

So, with prior legal challenges to Kentucky’s measure, as well as South Dakota’s history of overturning a measure despite voter support, could the same happen in Maryland or Kentucky?

It remains to be seen whether the measures will face legal challenges, but industry members have learned from the lawsuit in South Dakota.

“Myself and other people that are writing these laws are trying to write them in a way that’s lawsuit-proof. We try to establish more single-subject, narrowly drafted measures instead of saying we’re going to [legalize] cannabis and also do XYZ,” says Brian Vicente, founding partner of law firm Vicente Sederberg.

Kentucky’s and Maryland’s measures both have significant support from state lawmakers, while Noem openly opposed the measure in South Dakota.

However, Armentano says “it is certainly always possible that opponents after the election results could raise a legal argument. We saw it happen twice in the last election. It happened in South Dakota, it happened in Mississippi. Both of those challenges successfully nullified the votes.”

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