An Arkansas ballot measure to legalize cannabis has had a long and rocky road.
In July, Responsible Growth Arkansas, the campaign in support of the measure, announced that it had submitted enough signatures to appear on the 2022 ballot. But the Arkansas Board of Election Commissioners disagreed, saying the measure didn’t specify THC limits for cannabis products. Responsible Growth Arkansas appealed the decision to the state Supreme Court, which allowed the initiative to provisionally appear on the ballot while its seven justices deliberated. During their deliberations, the justices asked Secretary of State John Thurston for his opinion on the measure. Thurston said that while supporters had gathered enough signatures, he sided with the election board that it should not appear on the ballot.
But the final word went to the Arkansas high court, which on September 22 announced its decision: The court rejected the election board’s reasoning that the initiative’s language was misleading, and is allowing the measure to appear on the ballot in November.
The saga in Arkansas is becoming a familiar one for cannabis ballot initiatives in red states, where conservative leaders often push against legalization, and dodging legal hurdles has increasingly become part of the process for landing an initiative on the ballot.
For proponents of legalization, the ballot initiative has long been the preferred route. Legalization for adult use first happened by ballot box, in Colorado and Washington in 2012. Of 19 states (and D.C.) with legal adult use, only seven states legalized through the legislature. The first was Vermont in 2018.
Of the twenty-six states that allow some form of direct democracy, in which citizens can collect signatures to refer statutes or amendments to voters, only a dozen have not legalized cannabis for adult use or, in some cases, medical use either. In all twelve of those states, Republicans control both the legislature and the governor’s office.
And when it comes to red states, the ballot bar is proving to be high. The two most common issues initiatives face are technical: opponents contend that the title or language of the ballot measure is misleading, or that the measure covers more than one topic. The latter challenge is referred to as the single-subject rule, a restriction in sixteen states that keeps measures from making sweeping changes on multiple topics—although what constitutes one topic as opposed to many is often subjective.
Beyond Arkansas, two measures in GOP strongholds have had their fates decided by the courts this year—one in favor, one against.
• An appeals court in Missouri rejected a challenge that argued the state’s cannabis legalization initiative covered more than one subject. The state Supreme Court refused to take up the case, meaning voters will get a chance to decide on legalization in November.
• In neighboring Oklahoma, the Supreme Court has decided that the state’s cannabis initiative won’t appear on the ballot this year. While justices sided with supporters in their September 21 ruling, saying signatures had been collected legitimately and that the ballot’s title was not misleading, it also noted that petitioners in the ballot language challenge can still ask for a rehearing. Election officials won’t have time to place it on ballots before a rehearing happens. However, the measure is likely set up to appear in the 2024 election.
Other cannabis measures in other states, meanwhile, have faced legal challenges.
• One curious case on the ballot this year is an initiative in South Dakota, where voters will decide—again—on whether to legalize cannabis for adult use. Last year, the state Supreme Court struck down a voter-approved legalization measure in 2020, ruling that it actually covered three topics and therefore violated the state’s single subject rule. That legal challenge was spearheaded by Republican Gov. Kristi Noem.
• Supreme Courts in other states have also canned initiatives. In Florida last year on two separate occasions, justices rejected adult use measures for 2022 over misleading wording. And in Nebraska in 2020, after supporters had gathered enough signatures for a medical cannabis initiative, the state’s high court ruled the measure violated the single subject rule, arguing it covered at least eight subjects.
• Like South Dakota, Mississippi’s Supreme Court invalidated a voter-approved initiative from 2020. It would have legalized cannabis for medical use. The decision was based on an issue with how signatures were gathered, as Cannabis Wire reported at the time. The 1992 amendment allowing ballot measures stated that signatures must be gathered from each of the state’s five congressional districts. However, as of the 2000 Census, the state only has four districts. The Mississippi legislature has yet to resolve the legal question that unraveled that measure.
One result of these legal battles is that other efforts to bring initiatives before the voters have been thwarted. Alexis Magnan-Callaway, communications and digital strategy director with the Fairness Project, says her organization planned to back a measure in Mississippi to expand Medicaid, but had to put the effort on hold after the state Supreme Court’s decision on medical cannabis. She notes the trend in legal challenges to voter referenda is not confined to cannabis questions.
“Because there’s been so much success in passing progressive policies using ballot measures, there’s been this huge uptick in energy around stopping ballot measures,” Magnan-Callaway told Cannabis Wire.
Indeed, initiatives to expand Medicaid have passed in states like Idaho, Nebraska, and Oklahoma. Measures to increase minimum wage have been approved in red states like Florida, Arkansas, and Missouri. And Kansans, of course, recently shocked the country with a vote to protect abortion rights in the state.
Pushback is not limited to legal challenges after signatures are gathered. In 2021 and 2022, lawmakers across the country considered or passed greater thresholds required for initiatives to get on ballots or pass, including higher signature goals, and approval from three-fifths of the electorate, rather than a simple majority. Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, believes there’s a link between previous progressive wins at the voting booth and the current day increasing scrutiny of the initiative process in state capitals.
“They can’t win fairly so they’re rewriting the rules to get their way, rather than listen to what the majority of people want,” Figueredo told Cannabis Wire.
In Arizona, where cannabis was legalized for adult use by voters in 2020, lawmakers have referred three constitutional amendments to the ballot this year that could reshape the initiative process. Along with requiring 60% of voters to approve a new tax and implementing a single subject rule, the third measure would allow lawmakers to amend or repeal initiatives if any portion is deemed unconstitutional after they pass.
In the wake of fraud claims during the 2020 election, Republicans have framed changes to voter referenda as ways to shore up election integrity. Requiring only one subject for initiatives, for instance, arguably makes it clearer to voters what they are actually approving. Republicans also argue that the initiative process is easily corrupted by special interests with large pots of cash to spend.
Kevin Sabet, president and CEO of Smart Approaches to Marijuana, an organization opposed to cannabis legalization, doesn’t see challenging the legal basis of cannabis initiatives as a new tactic. Rather, he says, it’s a function of what happens when the scales of money balance out. “You didn’t see challenges as much, let’s say, prior to 2016 just because opponents of the legalization didn’t have any money to hire lawyers,” Sabet told Cannabis Wire. “The pro side has buckets and buckets of money. They have millions and millions of dollars on messaging and lawyers.”
Supporters of cannabis legalization do vastly outspend their opponents in most races. Even in red states, pro-legalization spending was magnitudes higher than the other side in 2020. In South Dakota, for instance, supporters of legalization for adult use pulled in nine times as much as opponents. In Mississippi, where medical cannabis was on the ballot, supporter cash was twenty-three times higher than that of opponents.
Sabet says opponents of legalization don’t benefit financially from defeating a measure, but it’s a different story for the cannabis industry. “If a ballot initiative wins, they do. So that’s a big difference.”
The biggest donors to the pro-legalization Responsible Growth Arkansas this year have been the state’s cannabis cultivators. The group has raised more than $4 million.
But the Arkansas campaign against legalization has bucked the trend, at least somewhat. Two donations totaling $2 million—from Arkansas chicken magnate Ron Cameron and prominent conservative donor Richard Uihlein of Illinois—have cut into the other side’s spending lead.
Sabet is no fan of ballot initiatives. He says the process has too many complications to work properly. And he wrote an affidavit in support of opponents to the legalization measure in Arkansas. He says that if supporters of cannabis are going to use referenda to legalize the use of a substance that remains federally prohibited, they have to use the correct process for collecting signatures and ensuring the ballot language is not misleading. “They better not violate in the process of at least getting on the ballot. So that’s why it’s important for us to be a watchdog.”
For Figueredo with the Ballot Initiative Strategy Center, pushback on voter referenda have less to do with any particular subject and more to do with how government operates.
“In our view, ballot measures are part of a thriving democracy,” Figueredo said. “This is another system of checks and balances for the people to actually take these issues before community members, rather than wait for legislators—who are not actually listening to them—to address these issues.”
Voters in five states—Arkansas, Maryland, Missouri, North Dakota, and South Dakota—will decide on cannabis in November. All of the measures, except for Maryland’s, were initiated by voters and in states where conservatives hold power across government.
Still, as recent legal battles in Mississippi and South Dakota have proved, the measures could face challenges even if voters say ‘yes’ in those states.
