UPDATE: Judge denies request for order on marijuana polling | Arkansas Blog

Friday, November 4, 2016

UPDATE: Judge denies request for order on marijuana polling

Posted By on Fri, Nov 4, 2016 at 2:43 PM

click to enlarge JUDGE MOODY: Denies TRO.
  • JUDGE MOODY: Denies TRO.
UPDATE: Federal Judge James Moody Jr. today denied a request for a temporary restraining order to force better notice at Arkansas polls that votes for Issue 7, the medical marijuana initiative, won't count.

He issued a brief order following a hearing that began at 11 a.m. today.

No details yet on the arguments in court. But the order only denied the temporary restraining order. An additional request for a future hearing on whether some allowance should be made for a re-vote by those who voted before the Arkansas Supreme Court ruling is still pending. But time is short on that, too, and today's hearing doesn't likely bode well for that request.

Sharon Boehm Hussman, one of the plaintiffs, tells me the gist of comments at the hearing was an absence of people believing they had responsibility to cope with any potential confusion over which ballot issues remain valid and which don't. Two other issues — on tort reform and casinos — also remain on the ballot but won't be counted. But they were invalidated before early voting began.


Plaintiffs in the lawsuit say they've either gotten bad information at early voting polls about the Supreme Court ruling invalidating the ordinance for fear that lack of adequate notice will have people choosing between Issue 7, which still appears on the ballot, and Issue 6, a valid constitutional amendment on medical marijuana.

The request had looked a long shot.

The state Board of Election Commissioners fought the lawsuit. Their lawyers said in a filing:

Plaintiffs lack standing because they cannot establish that their injury is fairly traceable to actions taken by the State Board—it is clear that the action about which Plaintiffs complain is a ruling by the Arkansas Supreme Court. Plaintiffs also lack standing because they cannot establish that the State Board has the legal authority to order county election officials to do anything—in other words, Plaintiffs have sued the wrong defendants. The suit is also separately barred by sovereign immunity under the Eleventh Amendment. Even if Plaintiffs could cross these threshold bars, the requested relief is plainly prohibited by the Arkansas electioneering statute. Even if the complaint was not barred due to lack of standing and sovereign immunity, and the requested relief was not expressly prohibited by Arkansas law, the Court should abstain from injecting itself into the Arkansas election and issues regarding proposed measures of Arkansas law that have already been addressed by the Arkansas Supreme Court. 
Jack Wagoner, the lawyer leading the lawsuit, has argued that due process was denied the more than 100,000 voters who cast ballots before Issue 7 was invalidated. He also makes a similar claim for those voters who might not be adequately warned about its status today.

Meanwhile, a lawyer working for Arkansans for Compassionate Care says it is going to resume gathering signatures this weekend. I don't fully understand the theory. They cite a 90-day cure period when signatures are judge insufficient. Do they mean they can somehow restart their issue from the day the Supreme Court said they hadn't gathered valid signatures? Is this for 2018?  I'm inquiring.

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