Arkansans Will Vote on Marijuana Legalization. But Their Votes May Not Count.

The measure will be on the ballot, but depending on how the state Supreme Court rules, the votes may just not be counted.


One of the most direct ways for voters to have a say in the way their government works is through ballot initiatives. This year, the Arkansas state government may simply ignore one.

More than two-thirds of Americans surveyed support the legalization of marijuana, a number that has grown consistently for decades. Members of Congress have promised action on the issue, but so far have failed to deliver.

In the absence of federal progress, many states have taken up the mantle. Currently, more than three-fourths of U.S. states have legalized pot to some extent. Typically, this requires some sort of buy-in from the state legislature, though not always: Arkansas is one of a handful of states, and the only Southern state, that allows voters to directly pass laws and amend the state constitution by ballot referendum. Placing an initiative on the ballot requires collecting signatures from registered voters equal to 8 percent of the total votes for governor in the most recent election. Currently, that number is 89,151.

In July, Responsible Growth Arkansas, a pro-legalization group, submitted a ballot measure with over 190,000 signatures, more than twice the necessary number. The measure's full title is, "An Amendment to Authorize the Possession, Personal Use, and Consumption of Cannabis by Adults, to Authorize the Cultivation and Sale of Cannabis by Licensed Commercial Facilities, and to Provide for the Regulation of Those Facilities." It would legalize marijuana for recreational use in the state for anyone age 21 or older and impose a 10 percent state sales tax. A previous ballot measure legalized medical marijuana in the state in 2016.

Under state law, once a successful petition is submitted, the State Board of Election Commissioners (SBEC) must either approve or deny the ballot measure's "title and popular name" to ensure that each is "presented in a manner that is not misleading" such that voting in favor of a measure would be voting against what the title proposes.

On August 3, the SBEC denied the measure's title and, therefore, its ballot eligibility. The board called the title "misleading due to the omi[ssion] of material information that would give the voter serious ground for reflection." It gave examples such as "omitting" that the measure would repeal the state constitution's "limitation on the maximum dosage" of THC, as well as "removing the concentration limit from edible products." In essence, the board contends that pledging to legalize a substance does not sufficiently imply removing limits on that substance.

The following day, Responsible Growth Arkansas sued Secretary of State John Thurston, who also chairs the SBEC. It asked for an expedited review schedule since any ballot measures would have to be certified before August 25. The Arkansas Supreme Court preliminarily ordered Thurston to certify the measure for November's general election ballot but noted that it would not ultimately be able to hear arguments on the case until September. Case briefs were due Friday, more than a week after the certification deadline.

Now, voters will have the option to vote for or against legalizing recreational marijuana in Arkansas, but if the court upholds the SBEC's ruling, those votes may not be counted.

For its part, representatives from Responsible Growth Arkansas indicated that they were pleased with the court's order, confident that they will prevail at trial. The state, meanwhile, fought the order, saying it was "unfair" for voters to be "unnecessarily confused by being faced with a ballot measure, the votes for which will not be ultimately counted."