A federal judge said Friday that he would not issue an order requiring state election officials to ensure county election workers post specific language about the ballot status of medical-marijuana ballot measures.
The decision pertained to a lawsuit filed Wednesday by two voters in Monroe County and one voter in Pulaski County who said they have been disenfranchised in voting for the medical-marijuana issue of their choice.
They said polling officials haven't been making it clear to early voters that the Arkansas Supreme Court decided Oct. 27 that votes on the Arkansas Medical Cannabis Act, known as Issue 7, won't be counted.
"I think it's beyond dispute that there's confusion at the polling place," said U.S. District Judge James Moody Jr. "The question is whether or not these defendants had any hand in causing that confusion or have any ability, in the context of this particular timing, to do anything about it."
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The defendants -- Arkansas Secretary of State Mark Martin and members of the state Board of Election Commissioners -- have an advisory role but cannot order county election boards to post signs, Moody said.
"I do not believe any order from me to order the secretary of state to advise these counties in any way addresses the harm," Moody said. "While impractical to bring 75 counties into this situation on short notice, it doesn't affect my analysis of whether these defendants are properly before the court."
The decision followed several hours of argument by both sides and testimony by voters who said they felt disenfranchised.
Attorney Jack Wagoner, founder of the Wagoner Law Firm in Little Rock, said voters are in a tough spot. Two medical-marijuana measures appear on the ballot. After early voting started, the state Supreme Court disqualified Issue 7 and ordered that votes for it not be counted.
But votes will still count for a competing proposal -- Issue 6, the Arkansas Medical Marijuana Amendment. The primary difference between them is that Issue 7 would have allowed some users to grow their own marijuana for medical purposes, and Issue 6 would not.
Wagoner said the state court's decision created a problem for medical-marijuana supporters who preferred Issue 7 over Issue 6 but would have voted for Issue 6 had they known the court's decision.
During the hearing, state officials said they did what the law allowed them to do to inform voters. They said the disqualified ballot measures appeared on the ballots because the state Supreme Court's decision came after ballots had been printed.
Josh Bridges, election coordinator for the secretary of state's office, testified that state workers had notified county officials of the high court's decision and suggested signage stating its effect. He said the process last week was the same as when the court disqualified Issues 4 and 5 -- ballot measures pertaining to medical lawsuits and casinos.
A.J. Kelly, deputy secretary of state and general counsel, argued that state officials could not go beyond suggesting that signage.
"There is a constitutional separation between the secretary and the county clerks who are conducting early voting," he said. "Separation of powers precludes the secretary from telling them what to do. We can suggest and offer advice, but we can't force them to do anything."
Colin Jorgensen, assistant attorney general, suggested that the 75 county election boards might be more appropriate defendants.
But Wagoner argued that the presence of two options for legalizing medical marijuana on ballots -- combined with the Supreme Court's timing -- warranted extraordinary measures.
"People are going into the polls and seeing when they go to the ballot that both of these similar measures are still on the ballot, and they're not getting told the correct information or information to let them know," he said. "It's a whole different world to notify that [Issues] 4 and 5 were stricken, when there's no similar measure, or alternative to anything."
During the hearing, Cynde Watson, a plaintiff in the case from Monroe County, said she voted soon after the state Supreme Court's decision on Oct. 27.
She said she had seen someone posting about the decision on Facebook, so she asked a poll worker about it. Watson said the poll worker told her it was still on the ballot.
"You really expect the poll worker to have the knowledge, to give you the correct information, but I just didn't believe her," Watson said.
She voted for Issue 6, though she said she would have preferred Issue 7.
Her husband, Jim Watson, who is also a plaintiff, made the opposite decision based on the same information, he testified.
He said he would have voted differently had he seen a notification of Issue 7's disqualification at the polling place.
"I'd have voted for 6," he said.
Moody thanked the plaintiffs for coming to court and sharing their stories but said the law is clear that notification is up to the county boards.
"I acknowledge the insurmountable problems with this time frame," Moody said. "That can't change my analysis."
After the hearing, Harrison Kemp, an attorney at Wagoner Law Firm, said more litigation is likely depending on the results of Tuesday's election.
If Martin and members of the state Board of Election Commissioners aren't the correct defendants, "we can remedy that," he said.
"After the election's over, we'll see what the results are. We'll do our calculus and decide," Kemp said. "If Issue 6 fails because of the confusion we're asserting that is caused by the presence of Issue 7 on the ballot, we'll obviously have to revisit whether we want to bring an action to challenge the results of the election."
The plaintiffs had asked in their complaint that a legal means be provided for people who voted for Issue 7, but would have voted for Issue 6 if they knew it was their only option, to correct their votes through a sworn affidavit.
They asked the court to focus solely on the signage matter Friday.
A Section on 11/05/2016