On October 27, the Arkansas Supreme Court voted 5-2 to remove one of the two medical marijuana initiatives from the November 8 ballot, even though everyone agrees that the petition had enough signatures of registered voters. Benca v Martin, cv-16-785. The majority opinion is fifteen pages; the two dissents are seven pages. Here is the opinion.

The initiative needed 67,887 signatures. Proponents submitted 117,547. The Secretary of State determined that 77,516 signatures were valid. But a voter challenged the Secretary of State’s determination, so the matter was sent to a special master who examined all of the disputed signatures. The master determined that another 2,087 signatures should be invalidated, but that still left enough valid signatures. The master’s report was issued on September 27, and the state then went ahead with ballot printing, leaving the initiative on the ballot.

But then the State Supreme Court majority invalidated some more signatures, not on the grounds that the signatures weren’t valid, but because the proponent of the initiative did not furnish all the paid circulators with a copy of the state’s handbook for circulators. Also some signatures were invalidated because the employer had not done a police background check on some of the circulators; or, if he had, he did not report the date of the police check accurately. Some more signatures were invalidated because the circulator used a Post Office address instead of a physical residence address. As a result, the Court held the petition was short 2,475 signatures.

There is another medical marijuana initiative on the ballot, issue Six. No one challenged the Issue Six petition validity, although Issue Six was challenged for having a misleading title. However, on October 13, the State Supreme Court had ruled that the Issue Six title is proper.

The Arkansas Supreme Court is one of the few State Supreme Courts in the nation with a female majority; the other such states are California, New Mexico, and New York. In the Benca decision, all four females on the court voted to remove the initiative from the ballot, whereas a majority of the male justices voted to leave the measure on the ballot. Thanks to Andy Craig for the news.

On the night of October 27, Jerry Gordon died at the age of 88. He had been the first attorney to file a ballot access lawsuit in federal court against a state law requiring a very high number of signatures. He filed that case in January 1968 against Ohio, which then required 433,100 valid signatures for a new party to get on the ballot. He filed it in the northern district of Ohio.

The 3-judge court sat on the case, which had been filed for the Socialist Labor Party, for six months. Finally it issued an opinion saying the case should have been filed in the southern district. This was wrong, because one of the plaintiffs, Peter Kapitz, the U.S. Senate nominee for the Socialist Labor Party, lived in Cleveland, which is in the northern district.

Gordon dutifully refiled the case in the southern district. The 3-judge panel in that district combined his case with the case filed for George Wallace and the American Independent Party. Then they ruled that although the Ohio law might be unconstitutional, they would not put either party on the ballot. Both parties then filed with the U.S. Supreme Court. The American Independent Party asked Justice Potter Stewart to put their party on the ballot, even before the U.S. Supreme Court had heard the case. The court wasn’t sitting yet. Stewart put the American Independent Party on the ballot. Gordon asked three days later that the Socialist Labor Party be also put on, but Stewart refused on the grounds that the delay of three days was inconvenient for the ballot-printing process. The next month the Court heard the case and struck down the Ohio law.

In 1969 the Ohio legislature lowered the petition from 15% to 7%, which still required over 200,000 signatures. In 1970 Gordon filed a new case for the Socialist Labor Party, and this time the 3-judge court not only struck down the 7% petition; it put the SLP on the ballot for the 1970 and 1972 elections.

Gordon, who lived in Cleveland, accomplished a great deal more than just these two ballot access cases. He represented activists in many types of cases. Thanks to Carole Seligman for the news.