Do Arkansans know what they’ll be voting on this November?
Advocates from Responsible Growth Arkansas, a ballot petitioners group in favor of legalizing adult-use cannabis, are hoping to sway the answer to that question in their favor amidst a legal battle before the state’s Supreme Court.
On Sept. 2, Wright, Lindsey & Jennings LLC attorneys representing Responsible Growth filed a reply brief with the Arkansas Supreme Court arguing that the ballot title for the group’s initiated constitutional amendment properly informs voters and is sufficient for inclusion on the Nov. 8 ballot.
The legal battle, in part, stems from the 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.
“The  ballot title exceeds what the Court has previously required by telling voters the specific provisions of Amendment 98 that will be amended, including the specific change at issue here,” Responsible Growth attorneys wrote in the Sept. 2 brief.
“That change is the repeal of Amendment 98, which limits THC in food or drink containing marijuana to 10 [milligrams],” they wrote. “The ballot title informs voters specifically that the Amendment will repeal that section. The ballot title thus exceeds what the Court required in past cases by telling voters the existing law that will change.”
The Responsible Growth attorneys also clarified that the 2022 ballot referendum’s THC provision to amend Amendment 98 does not apply to all cannabis products but only “to food and drink containing marijuana.”
That clarification came after a third party dubbed “Save Arkansas From Epidemic” (SAVE) forced its way into the lawsuit after filing a motion to intervene.
Fairfield Bay Police Chief David Burnett and Little Rock Attorney AJ Kelly filed papers last month to form SAVE with the primary purpose to oppose the 2022 ballot measure, Arkansas Times reported. The filing includes an affidavit from Kevin Sabet, the co-founder of Smart Approaches to Marijuana (SAM), a notorious prohibitionist group.
As an intervenor, SAVE representatives misinterpreted the THC limit proposal in their brief to the Supreme Court, according to Responsible Growth’s attorneys. “Contrary to suggestions in the intervenors’ briefs, this Amendment 98 provision does not apply to all marijuana products.”
Responsible Growth organizers submitted 190,000-plus signatures—more than double the 89,151 valid signatures required for the ballot—and received certification from Secretary of State John Thurston on July 29. But the state Board of Election Commissioners (chaired by Thurston) rejected the measure on Aug. 3. That rejection was based on the board members’ belief that the title doesn’t fully explain to voters the impact of the constitutional amendment.
However, Responsible Growth advocates filed a lawsuit Aug. 4 in the state’s Supreme Court to challenge the board’s decision. Less than a week later, the Supreme Court issued a formal order, directing Thurston to “conditionally certify petitioners’ proposed initiated amendment pending this court’s decision in the case.”
Now, after a series of briefs and reply briefs between Responsible Growth attorneys and Arkansas Attorney General Leslie Rutledge’s office—acting on behalf of Thurston—the Supreme Court justices have commanded the authority to determine whether votes for the legalization measure will even count. That judicial decision could come after the election.
The attorney general’s office also took aim at Responsible Growth’s proposed changes to Amendment 98 in its Supreme Court brief, the Arkansas Democrat-Gazette reported.
“As determined by the Board, the ballot title here is misleading because it fails to inform voters that it will repeal the 10 milligram limit of THC per portion for edibles,” officials from the attorney general’s office wrote.
The ballot title states, “An amendment to the Arkansas Constitution … amending Amendment 98 … to provide that limits on the amount of medical marijuana dispensed shall not include adult use cannabis purchases.”
The ballot title lists out the sections to which Amendment 98 would be amended.
In Responsible Growth’s Sept. 2 brief, 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 Board of Election Commissioners also argue that the ballot title has a “false statement child-proof packaging will be added to existing law.”
Responsible Growth attorneys argue the title states that the referendum will “repeal and replace” Amendment 98 with different requirements for child-proof packaging and restrictions on advertising that appeals to children. “The ballot title thus accurately states what the Amendment proposes,” attorneys wrote Sept. 2.
Responsible Growth legal representatives also argue that the ballot title sufficiently conveys an adequate understanding of tier one and tier two licenses for cultivation facilities, and that the amendment’s definition of “adult” matches common understanding of the term: addressing two areas of complaint made by opposing parties.
“The ballot title sufficiently tells voters about the changes that the Amendment will make to the law, providing a fair understanding of the issues presented and the scope and significance of the proposed changes in the law,” Responsible Growth attorneys wrote. “Neither the Board nor intervenors have shown otherwise.”