Arkansas Supreme Court blocks medical-marijuana amendment from ballot, says title misleads voters

The Arkansas Supreme Court on Oct. 21, 2024, ordered that ballots for the proposed "Arkansas Medical Marijuana Amendment of 2024" not be canvassed or certified after concluding the amendment’s popular name and ballot title are misleading to voters. Associate Justice Shawn A. Womack, writing for the majority, said the proposal’s “popular name . . . falsely suggests that the amendment is only about medical marijuana when, in reality, it is about much more.”

The ruling matters because the court found the ballot label and popular name would not give voters a fair understanding of what they would be voting on. The majority emphasized that the measure would conditionally allow adults to possess up to one ounce of marijuana for any purpose if federal law changed and also would amend Article 5, Section 1 of the Arkansas Constitution in ways not apparent from the popular name.

The court considered two separate challenges. Petitioners Bill Paschall and Arkansans for Patient Access (APA), who sponsored the proposed amendment, asked the court to require the Secretary of State to place the measure on the Nov. 5, 2024, general-election ballot. Secretary of State John Thurston had rejected the petition on Sept. 30, 2024, principally on the ground that APA failed to meet the minimum 90,704 valid-signature requirement after rejecting signatures accompanied by affidavits submitted by Nationwide Ballot Initiative (NBA). Intervenors Jim Bell and Protect Arkansas Kids (PAK) argued the popular name and ballot title were misleading.

The court held that the Secretary erred in concluding APA failed to meet the minimum-signature threshold based on the statutory “sponsor” certification issue. Relying on statutory definitions in Ark. Code Ann. § 7-9-101(10) and § 7-9-402(11)(A) and this court’s recent McGill v. Thurston decision, the majority said individuals affiliated with NBA could sign the required certifications on APA’s behalf. The opinion states the Secretary therefore erred if he treated those signature affidavits as categorically invalid under Ark. Code Ann. § 7-9-601(b)(3).

However, the majority granted the Intervenors’ request for relief because it concluded the popular name and ballot title were misleading as a matter of law. The opinion highlighted three defects: (1) the popular name (“Arkansas Medical Marijuana Amendment of 2024”) suggests the measure is limited to medical marijuana while a provision would trigger legalization of possession up to one ounce for any purpose if federal law changed; (2) the popular name and ballot title do not inform voters that the amendment would amend Article 5, Section 1 of the Arkansas Constitution, a provision governing how constitutional amendments are amended or repealed; and (3) the ballot title omits material information about stripping the General Assembly’s authority under certain sections of Amendment 98 (the opinion pointed to the proposal’s repeal of Amendment 98, §§ 23 and 26) and therefore omits information that would give voters “serious ground for reflection.”

The court explained that section 5 of the proposed amendment is a federal-trigger provision: legalization at the federal level would allow adults, not only qualifying medical patients, to possess up to one ounce of marijuana under state law and permit licensed entities to sell for adult use if federal law changed. The opinion compared this discrepancy between the popular name and the amendment’s text to prior cases in which popular names or ballot titles gave voters a misleading impression of a measure’s scope.

Associate Justice Shawn A. Womack wrote the majority opinion and ordered that the Secretary of State be enjoined from canvassing or certifying any ballots cast for the proposed amendment at the Nov. 5, 2024, general election. The court’s written disposition reads in part: “Petitioners’ petition denied; Respondent’s request for relief denied; Intervenors’ request for relief granted.”

Justice Cody Hiland wrote a dissent, joined by Justices Baker and Wood, saying he would find both the popular name and ballot title sufficient and would grant APA’s petition. Hiland wrote, “I respectfully dissent,” arguing the court’s precedents and the liberal construction afforded ballot titles counsel in favor of allowing the measure to proceed.

Key factual details in the record include that APA initially submitted a petition on July 5, 2024, containing over 111,000 signatures; the Secretary initially validated about 77,000 signatures, provided a cure period, and APA submitted an additional 38,934 signatures on Aug. 30, 2024, of which the Secretary validated 10,521 on Sept. 30, 2024. The Attorney General had certified the proposed amendment on Feb. 29, 2024; the court noted that the Attorney General’s certification does not control the court’s sufficiency determination.

The court grounded its ballot-title analysis in a long line of cases addressing popular-name and ballot-title sufficiency and said its role is to ensure that a measure is presented fairly to voters so they can reach an informed decision in the voting booth.

The mandate directed by the majority was to issue immediately; the opinion enjoins the Secretary from canvassing or certifying ballots for the measure pending further order.

(Reporting is based on the court opinion; direct quotations and legal characterizations are from the majority and dissenting opinions and the statutes and cases cited therein.)