UPDATE: Supreme outrage: Is there a line of attack on court invalidation of pot measure? | Arkansas Blog

Friday, October 28, 2016

UPDATE: Supreme outrage: Is there a line of attack on court invalidation of pot measure?

Posted By on Fri, Oct 28, 2016 at 7:38 AM

click to enlarge NOTICE: In Washington County an announcement that votes on certain measures will not be counted. - CHANNING BARKER/TWITTER
  • Channing Barker/Twitter
  • NOTICE: In Washington County an announcement that votes on certain measures will not be counted.

I don't even hear opponents of medical marijuana who are sanguine about the Arkansas Supreme Court's decision to invalidate the medical marijuana initiative on the fourth day after voting had begun.

A rehearing will be sought. Given the superior tone of Justice Karen Baker's majority opinion, I"d say it's unlikely. The invalidation of thousand of signatures despite a lack of evidence they were gathered by paid canvassers was a farce. It was primarily a pander to the legislature, an unpromising long-term signal if ever there was one.
click to enlarge RALLY AT THE SUPREME COURT: Marching for Issue 7. - BRIAN CHILSON
  • RALLY AT THE SUPREME COURT: Marching for Issue 7.

A group has formed
to protest. They plan a demonstration at noon today at the Supreme Court. The Save Issue 7 movement also plans a rally at 2 p.m. at the Washington County Courthouse in Fayetteville.

Confusion reigns. In Washington County, they've posted notices that votes on some measures will not be counted, including the invalidated Issue 7. I think that's premature as long as an appeal pends on 7.

And what of all those early voters who made considered decisions to choose between Issue 6, the pot amendment, and Issue 7, the act? If they chose 7, they've now lost their chance to go for the remaining medical marijuana measure.  (No, you can't change a ballot once voted.)

There's talk of a rump legal action to channel the outrage into something productive. What, for example, about a due process argument in federal court? Better minds than mine are at work. If there's anything solid to report, I'll let you know.

Meanwhile, go ahead and vote on everything on the ballot even if three of the Issues won't be counted. It'll feel good expressing yourself, if nothing else, on nursing home greed, more casinos, marijuana and such things as the City Board race in which a fine candidate, Molly Miller, had to drop out on account of illness. I voted for Miller. It felt right.

UPDATE: Some more seat-of-the-pants lawyering from a reader.

The Arkansas Constitution says:

"The failure of the courts to decide prior to the election as to the sufficiency of any such petition shall not prevent the question from being placed upon the ballot at the election named in such petition, nor militate against the validity of such measure if it shall have been approved by a vote of the people."

This provision has been interpreted in a case called Beene v. Hutto from 1936 to mean:

"It, therefore, appears that after a question is submitted to and voted upon by the people, the sufficiency of the petition is of no importance. It is not important because, whether sufficient or insufficient, if the measure is adopted by the people at the election, it becomes the law. The I. R. Amendment also provides that it shall be self-executing, and all of its provisions shall be treated as mandatory."

So, I guess the question for the Supreme Court would be whether once early voting starts it is too late to rule upon the sufficiency of an initiated act or amendment, or if that means only election day is the cutoff?
The Supreme Court ruled after voting had begun, which perhaps could be taken as their view on the question raised.

UPDATE II: Complaints rolling in about poll workers telling people Issue 7 is not on the ballot and otherwise discouraging votes. It IS on the ballot. You may vote for it, though that vote may not be counted.

I don't know where election officials get off providing information about court rulings and posting signs and the like. That is not part of the process. They were not ordered to do that. They were merely ordered not to count votes. And the Issue 7 issue isn't formally done yet.

Talk is growing about legal challenges.

UPDATE III, from Benji: The rally attracted around 250 people, I'd estimate. People were loud, angry and motivated. A series of speakers excoriated the court's decision. Melissa Fults, leader of Arkansans for Compassionate Care and a candidate for the state legislator, said "they crushed our rights" and reminded the crowd that justices "are also elected officials."

"You need to contact every one of those five justices [who voted to kill the measure] and tell them their days are numbered," she shouted. A huge cheer went up.

I'll have a more complete report on the rally later.

click to enlarge BRIAN CHILSON

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