LITTLE ROCK, Ark. — A pair of lawsuits against a so-called tort reform proposal and others against the effort to legalize Arkansas medical marijuana means the state’s ballot initiative campaigns will begin in a familiar place: the courtroom.
But, if history is any guide, it’ll be an uphill fight for opponents of those initiatives and others on the Nov. 8 general election ballot.
A proposed constitutional amendment to limit damages awarded in medical lawsuits faced two challenges before the Arkansas Supreme Court from groups who say the measure’s wording and petitions don’t meet the mark. One of two competing medical marijuana plans also faces a pair of challenges, including one from a coalition of the state’s most powerful lobbying groups that includes the state Chamber of Commerce and the Arkansas Farm Bureau.
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With another medical pot proposal and a casino legalization measure certified last week, it’s likely that all four voter-referred initiatives will be fending off challenges before the state’s high court in due time.
The groups challenging these proposals are wagering that the state Supreme Court will reverse a recent trend of rejected attempts to block ballot measures. With a handful of exceptions, justices in recent years have appeared reluctant to second-guess the attorney general’s decision to certify ballot titles or election officials’ approval of signatures submitted for them.
The state Supreme Court two years ago rejected efforts to block two measures, one that would gradually raise Arkansas’ minimum wage and another that would legalize alcohol sales in all 75 counties.
Justices rejected the argument from businessman Jackson T. Stephens Jr. that the minimum wage initiative supporters missed a key deadline and that they had submitted invalid signatures. The court also rejected a similar argument challenging the deadline the state used for the alcohol measure’s signatures. Voters approved the minimum wage measure that fall but rejected the expanded alcohol sales.
An earlier attempt to legalize medical marijuana also survived a legal challenge four years ago, rejecting claims that the proposal didn’t adequately explain to voters that users could still face federal prosecution.
Other ballot measures that have survived legal challenges in recent years include the constitutional amendment setting up Arkansas’ lottery and the 2004 state ban on gay marriage. Voters approved the lottery amendment in 2008 and the gay marriage amendment in 2004, though it was nullified by the U.S. Supreme Court’s decision last year legalizing same-sex marriage nationwide.
The exceptions in recent years have been court rulings turning down attempts by initiative campaigns that had failed to make the ballot. The Supreme Court in 2012 ruled against attempts to get decisions against a pair of casino legalization measures reversed. In one case, justices declined a Texas businessman’s bid for more time to gather signatures for his proposal. In a separate ruling, justices rejected a challenge for a competing casino measure backed by a professional poker player.
The recent history is a far cry from the 1990s, when last-minute rulings knocking proposals off the ballot were a fixture in the state’s election years. The state Supreme Court in 1996 removed three gambling amendments and a term-limits amendment from the ballot because their titles were misleading. Six of seven ballot issues were struck off in 1994, some because of insufficient ballot titles.
Every case is different and the past doesn’t close the door on the most recent challenges succeeding. But there’s an added benefit for the cases, which give opponents a chance to highlight their arguments against the initiatives.
For opponents of the medical lawsuits measure, that means showcasing their argument that the proposed amendment misleads voters and doesn’t tell them a jury’s power to award damages will be superseded by the new limits set by the Legislature. Anti-pot groups are using their case to point out what they say are the unintended consequences of legalizing the drug in Arkansas.
Even if those arguments don’t sway justices, opponents hope it may at least work in the court of public opinion.