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Marijuana fight will continue no matter how the vote goes 

click to enlarge KELL: "You'd think elected officials would listen."
  • KELL: "You'd think elected officials would listen."

Even if Arkansas voters should approve of Issue 5, the Medical Marijuana Act, in the Nov. 6 election, therapeutic weed won't be accessible soon. "Issue 5 is not a get-out-of-jail-free card," says Jerry Cox, who heads the Family Council, a coalition of fundamentalist churches who oppose marijuana in the same way they oppose abortion and gay marriage. Regardless of Issue 5, possession of marijuana for any purpose will still be illegal under federal law. (Though that hasn't stopped 17 other states from legalizing medical marijuana, with varying results. Medical marijuana is legal also, through congressional action, in the District of Columbia. Arkansas, generally considered a backward sort of state, would experience a change of image should it become the first Southern state to approve medical marijuana.)

Issue 5 was placed on the ballot by initiative, which is to say by regular people, not by the state legislature. Almost certainly, there would be legislative attacks on a voter-approved Issue 5, prompted by the Family Council and other opponents.

Supporters of the act say the measure is self-enabling and that legislative action to implement it is neither necessary nor permissible. But the legislature still has authority to amend the substance of the proposal, perhaps drastically, although a two-thirds vote would be needed to amend, and a two-thirds vote is usually hard to achieve. Legislators seem overwhelmingly opposed to Issue 5, at least publicly, but many of them will be reluctant to override a vote of the people. (They may be less reluctant if Republicans gain a legislative majority in the Nov. 6 election. Republican legislators tend toward the reckless.) In any case, there are ways the legislature can make it difficult for legalization to go smoothly, and legislators would be urged to do so by the Family Council and perhaps the Chamber of Commerce, two strong lobby groups. The Chamber is opposed to Issue 5, and the Chamber usually gets what it wants from the legislature, but nullification of a voter-approved act might not be a high legislative priority for the group. The Chamber has fingers in many pies.

Whatever the legislature might do with Issue 5, its approval by voters would reveal a huge gap between the people and the officials who are supposed to represent them. Even a close vote against marijuana would expose a legislature badly out of step with constituents.

Chris Kell, campaign strategist for Issue 5, professes to believe that if the act is approved by the voters, it will take effect more or less unhampered by the legislature, but he could hardly say anything else at this pre-election point. Why borrow trouble? "I hope the legislators listen to their constituents," he says. "You'd think elected officials would listen." Many a reformer has found otherwise.

Gov. Mike Beebe has said he'll vote against Issue 5, and members of his administration, including a state "drug czar," are openly campaigning against the act on state time, using taxpayers' dollars, a commitment to keep ill citizens suffering that is questionable if not, as Kell claims, outright illegal. But Beebe, a moderate Democrat — the only kind of moderate these days — isn't the sort to crusade against an act once the people have approved it.

The Obama administration's attorney general, Eric Holder, has said in effect that enforcement of the federal law against medical marijuana is not a high priority with the Justice Department at the moment. But it'll be a high priority if Holder is replaced by a Republican attorney general in January. States' rights will count for little then in states that have approved medical marijuana. When Asa Hutchinson, an Arkansas Republican, was the federal drug czar, under the second President Bush, he was relentless in cutting off cancer patients from their prescribed pain relief. Another possibility, one that could tip in the patients' favor, is that the federal Drug Enforcement Administration could reclassify marijuana so that doctors could legally prescribe it, and pharmacies legally fill those prescriptions. The DEA has so far refused to do that; its refusal is being appealed in federal court.

Regardless of how this year's medical-marijuana election comes out, there'll be another. If marijuana opponents lose this time, they'll arrange a rematch, either by initiative or legislative collusion. The Family Council opposes Issue 5 on religious grounds. The Chamber of Commerce argues, more or less, that legalizing medical marijuana would increase the use of marijuana generally, and that workers under the influence of marijuana might come to work and cause accidents, slowing production and exposing employers to lawsuits. If medical marijuana becomes legal, the chamber will likely demand legislation limiting or eliminating employers' liability in marijuana-related accidents.

If they lose this year, medical-marijuana supporters will try again at some point, too. Time is on their side, younger voters more willing to accept medical marijuana than their elders. And not even the Family Council and the Chamber of Commerce can stop time's inexorable march. The Family Council might call on a higher power, but some think He's on the other side.

Hard feelings will continue. When Cox looked on at a pro-Issue 5 rally at the Capitol, and was interviewed by reporters afterward, one of the Issue 5 supporters stood nearby delivering unpleasantries, including, "You're a coward!" Cox gave no sign he heard. He may be the most hated man in Arkansas, and seems to thrive on it. To a reporter who asked what the Family Council would do if Issue 5 is approved, he said "I don't think it's going to be approved," and scurried away on his rounds. He stays busy.

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