This article originally appeared in print in Hill Magazine and online in the Arkansas Traveler here.
In a house in Little Rock with a small group of fellow supporters, Ryan Denham, 34, sat in front of a TV for several hours. By 10:40 p.m., multiple news outlets had called it. He flipped from news channels to online media outlets to confirm it. KATV, KARK, marijuana.com––they all said the same thing. Issue 6 passed.
“I’m excited it passed, but it wasn’t what we hoped for,” he said flatly. He paused. “It’s a major step forward for the South. It’s a huge win for the state of Arkansas.”
He moved on to other big wins. Massachusetts became the first state on the east coast to pass full legalization. California followed suit, joining Washington on the west coast. Florida and North Dakota passed medical measures. It was a big day for drug-reform laws in the country after all. Now for the waiting game. Nevada, Arizona and Maine were still up in the air. Time to focus on those.
Around the same time more than 200 miles away at her home in Centerton, Toni Martin’s 25-year-old daughter told her to turn her TV back on. They had a new number: 54 percent. The 62-year-old sighed in relief. After her vote for Issue 7 was disqualified, she was counting on other people’s civic voices to carry the Issue 6 measure. If it passed, she was in the clear. She already had two qualifying conditions. Also, she could afford it. That sunk in. Suddenly the whole thing became bittersweet.
“I’m glad that I’ll be able to get the medicine that I need, but I’m thinking about the people who can’t afford it,” she said. “That’s bothering me.”
About 30 minutes south on Interstate 49, Don Wicker, 66, sat inside Brewski’s Draft Emporium on Dickson Street in Fayetteville. His table was nearly empty; almost all of the 15 friends and fellow volunteers had dispersed. At the moment, he was shaking his head in disbelief. The political pundits on the TV were pointing at more red states than blue ones. Sure, Issue 6 looked like it was about to pass with a large margin––even though it wasn’t close to as good as 7––but this was serious.
A couple hours earlier, David Couch, 57, left Democratic senatorial candidate Conner Eldridge’s watch party in Little Rock feeling confident. It was apparent that Eldridge’s chances at taking the seat were next to zero, but preliminary polling numbers were looking good for Issue 6. Couch and his girlfriend drove to a friend’s house to wait for official results. The supporting numbers came pouring in on the TV screen as counties reported: Washington, Benton, Faulkner, Pulaski, Craighead––Craighead! In 2012, The Arkansas Medical Cannabis Act, which appeared as Issue 5 on that ballot then, had lost big there. The county flipped. He knew then that it would pass, and took a moment to let all his hard work sink in. Arkansas would become the first Bible Belt state to legalize medical marijuana. It was kind of amazing, considering that four years prior he knew nothing about medical marijuana.
Couch was working on collecting signatures for a ballot measure about campaign finance reform in 2012 when he met Denham at the Arkansans for Compassionate Care Petitioning Office in Little Rock. At the time, Denham, the deputy campaign director, was promoting Issue 5 on the state ballot. The issue would eventually fail to pass by three percentage points, but the campaign and the issue’s failure to pass got Couch thinking. He spent the next several months travelling across the state talking to people about their positions on the drug. He slowly developed an idea of what public opinion looked like.
“That’s when I became convinced about the medicinal value,” Couch said.
The results of his findings are detailed in the Arkansas Medical Marijuana Amendment, an amendment that presents what most accurately reflects the views of most Arkansas residents, he said, and which Arkansans passed Tuesday, Nov. 8, 2016.
“I listened to people about the criticism they had with Issue 5 at the time, and when I sat down to write Issue 6, I took all of those criticisms to heart,” he said.
More than 575,000 Arkansans, or 53.2 percent of voters, opted to legalize medical marijuana for treating 17 diagnoses, including cancer, hepatitis C, Alzheimer’s and PTSD, with the possibility of the Department of Health adding more qualifying illnesses in the future.
The amendment went into effect Nov. 9 and set a 30-day time period for the state legislature and governor to create a medical marijuana commission. Commissioners will regulate licensing and set application costs for between 20 and 40 dispensaries and four and eight cultivation facilities. The Alcoholic Beverage Control Division will be responsible for inspecting the dispensaries and cultivation facilities, while the commission will direct the health department and decide how much marijuana cultivation facilities can grow.
Thousands of Arkansans voted to legalize medical marijuana, but a commission comprised of five people will decide what legalization looks like.
The health department and ABC must create regulations by June 1, 2017. Once regulations are set, residents who have lived in Arkansas for at least seven years can apply for licenses.
At least, that’s what’s supposed to happen. Other states with similarly structured legislative regulations discovered that after passing medical marijuana laws, implementing legalization wasn’t so simple or nearly that quick.
A Fascinating Process
Bruce Knox never planned to get into the medical marijuana business. The son of ex-law enforcement parents, Knox prescribed to the it’s-a-demon-drug-that’ll-send-you-to-hell theory. Plus, his ex-military father ruled his childhood home with an iron fist. He never touched the stuff.
Then, the Florida state legislature introduced The Compassionate Medical Cannabis Act.
Knox began researching marijuana’s medical benefits and eventually stumbled upon supporting information from the National Institute of Health. He found that the NIH, serving
as a federal medical research agency under the U.S. Department of Health and Human Services, spent more than $21 million studying the potential therapeutic effects of chemicals in marijuana, known as cannabinoids, in the fiscal year of 2015.
Supporting research on cannabinoids has led to two FDA-approved cannabinoid medications, but the plant as a whole remains a Schedule I drug, or a DEA classification indicating that there are no known medical uses. Still torn between his research conclusions and his upbringing, Knox confronted his father about his position on the drug two weeks before he died.
“He said ‘I never thought it should be illegal.’ You had to pick me up off the floor after I heard that,” Knox said.
Florida Gov. Rick Scott eventually signed into law The Compassionate Medical Cannabis Act on June 16, 2014. Knox was sold. Knox, who owns Knox Nursery in Florida, which specializes in bedding plants, saw an opportunity.
Knox eventually created Knox Medical, one of six licensed medical marijuana growers in the state. He spoke to University of Arkansas horticulture students and faculty about the development of Florida’s medical marijuana industry in October as part of the Horticultural Entrepreneur Lecture Series.
“It was a fascinating process,” Knox mused.
A storm of what seemed like never-ending issues followed legalization, beginning with the law itself. The law said that legislators and the state’s department of health would adopt rules for implementing legalization. The law did not state what those rules were.
A rules committee comprised of a specially appointed judge, lawyers, legislators, department of health officials and representatives from Colorado’s marijuana industry spent about nine months developing regulations after the law was passed. Additionally, legislators wrote in steep financial obligations. The law said that growers had to post a $5 million bond, but they didn’t understand how hard it would be to get one, Knox said.
At the time, only two surety companies were writing bonds for medical marijuana.
“They laid down the ground rules,” Knox said. “They said ‘We understand that you only normally post 10 percent cash for a bond, but you’ve got to post 100 percent liquid cash.’ It’s just a debacle in the amount of money spent to get from point A to point B.”
After securing the bond, Knox submitted a 980-page application to become a grower in July 2014. In November, after spending around $1 million on the application process alone, Knox was awarded a growing license. A slew of legal questions emerged.
In Florida, residents don’t pay taxes on medication, but there is still debate about whether medical marijuana qualifies.
“We have sought out someone who specializes in revenue, and they have said collect your sales tax and we’ll send it to the state,” Knox said. “Whether they take it or not, we don’t know, but we’re going to go ahead and collect it.”
Based on the state’s regulations, growers are required to “audit test” their products, but the state doesn’t say what that means––whether that’s 1 percent or 10 percent, there isn’t a rule that speaks to that. The state doesn’t have a location for growers to do that testing, either. Knox contacted the health department asking for a list of approved testing laboratories, to which they responded that there were none.
After developing their own testing facility, Knox Medical began cultivating two strains of medical marijuana in June and has been freezing the product since then. After spending months and millions of dollars in preparation, Knox said he plans to begin selling the product in December 2016—about two and a half years after medical marijuana was legalized.
The timing doesn’t really matter, though. Getting the product out there does.
“If I can help just one person, it’s going to be worth all of the headaches, all of the sleepless nights,” he said.
I Got Robbed
On Tuesday, Oct. 25, Martin did something she had never done before. She cast her vote before Election Day. As a new resident in Centerton, she didn’t know where the polls were, and she didn’t know how crowded they’d be Nov. 8. She decided to skip the hassle of scoping out parking, maneuvering crowds and standing in long, snaking lines.
Everything went smoothly Tuesday—just as she had predicted it would. What she didn’t see coming though, was how much she would regret that decision.
“We went in to early vote, we looked, we saw everything that was posted, walked in and voted yes on 7,” she said. “Forty-eight hours later, we found out through the media that our vote no longer counted. The fact is, we were robbed.”
The Arkansas Supreme Court disqualified The 2016 Arkansas Medical Cannabis Act three days into early voting after granting a petition that challenged the number of valid signatures gathered by Arkansans for Compassionate Care, the ballot initiative’s sponsors.
The act would have created up to 39 non-profit Cannabis Care Centers across the state that would be responsible for testing and distributing medical cannabis to patients with one of 56 approved conditions and a written recommendation from a physician, according to the act.
The act also included a provision which would allow patients who live more than 20 miles away from care centers to grow up to five plants. The health department would be responsible for overseeing the cultivation and distribution of cannabis. Additionally, the act included an affordability clause which would have altered prices for low-income patients.
Unlike Issue 7, The Arkansas Medical Marijuana Amendment does not have a “grow your own” provision, and that was intentional. Dispensaries are only able to grow a limited amount of marijuana and distribute to patients, while cultivation centers can only grow marijuana and sell to dispensaries, Couch said.
“The problem with that is, we are trying to treat this like medicine, and you can’t make your own medicine in other circumstances,” Couch said.
In response to the court’s ruling, Martin drove close to 30 miles from Benton County to stand in front of the Washington County Courthouse with more than 100 Issue 7 supporters Saturday, Oct. 29. The 40-minute trip and the protest weren’t how she was planning to spend her day off from waitressing, but there she stood, holding an Issue 7 sign for more than two hours in front of the courthouse, on principle, she said.
“Whether you’re for it or you’re against it, there’s a bigger issue, and the issue is that this is unconstitutional for them to do,” she said.
A sea of “I got robbed” and “This is not democracy” signs surrounded her. Droves of people fanned out to line the sidewalks at all four corners of the intersection at North College Avenue and Dickson Street. The sounds of car horns swallowed the group’s repetitive chanting, which included cries of “Ain’t no power like the power of the people, because the power of the people don’t stop,” and “Hey-hey, ho-ho, this court decision has got to go.”
Initially compelled to protest by what she perceived to be an assault on her civic voice, something else rumbled uneasily inside Martin while she stood on the courthouse’s lawn. Martin, who takes nine medications daily to manage pain from fibromyalgia and arthritis, was protesting with her fellow patients. Overwhelming emotion struck her. Tears bubbled to the surface, and her shaking voice overtook her momentarily.
“Many of these people are actually sick, but they’re still out here,” she said. “They know their time is limited. They just want that time to be eased.”
Abel Tomlinson, the Washington County regional director for Issue 7, ended the protest with a speech thanking the hundreds of volunteers who made gathering signatures and promoting the ballot initiative possible.
“We are the only grassroots, volunteer-driven campaign that has placed medical cannabis on the ballot, not once, but twice,” he said, referencing 2012’s Issue 5.
Denham answered a phone call around 10 a.m. Thursday, Oct. 27. He was buying advertising at the time and trying to plan how and where to distribute the 1,000 Issue 7 yard signs that had just arrived at their headquarters in Little Rock. The ballot initiative’s lawyer, John Wesley Hall Jr., told Denham that Issue 7 had been removed.
After scrambling to find and read the court’s majority opinion, he made some phone calls to his staff; he advised them to suspend campaign activity until they heard from their lawyer. Then he drafted a press release urging voters to vote for both issues 6 and 7. In the meantime, he and his team began planning a legal challenge to the decision, which largely questioned the validity of the signatures his camp had gathered.
Per the Arkansas Constitution, sponsors of an initiated act must gather a number of valid signatures from 15 counties that is equivalent to 8 percent of the population that voted in the last gubernatorial election, or 67,887 signatures, for the measure to appear on the ballot. Of the 117,548 signatures gathered by Arkansans for Compassionate Care, Secretary of State Mark Martin validated 77,516.
The Secretary of State is responsible for certifying ballot issues for the November general election ballot by Aug. 25, but the petition is subject to review by the Arkansas Supreme Court, according to Martin’s 2015-16 initiatives and referenda handbook.
A signature can be marked invalid if the signee is not a registered voter at the time of signing or if the signature is forged or illegible. Additionally, signatures must be accompanied by identifying information for the state—the signer’s date of birth and county of registration are most helpful in validating signatures, according to the handbook.
In September, another petition challenged the validity of Martin’s count and the process in which signatures were collected. Lawyer Kara Benca brought the petition against Martin, arguing that the signatures should be invalidated because the sponsor’s canvassers were not given Martin’s handbook or trained in the law. It also argued that Arkansans for Compassionate Care did not provide a list of canvassers to the Secretary of State’s office or provide their state police criminal background checks, which is required by law.
The court agreed, and eliminated signatures based on those and other infractions: The court nixed signatures collected by canvassers whose names or background checks were not provided to the state; it also rejected signatures that listed business addresses or P.O. boxes instead of home addresses.
After disqualifying more than 12,000 collected signatures based on one or more of the violations, 65,412 remained—about 2,500 fewer than what was needed for the issue to remain on the ballot.
With two dissenting opinions from Chief Justice Howard Brill and Associate Justice Paul Danielson and one concurring opinion from Associate Justice Courtney Hudson Goodson, the petition against Issue 7 was granted.
“Courts do not make the law; they merely construe, apply, and interpret it,” Associate Justice Karen Baker wrote in the majority opinion. “Today, we have simply interpreted the laws enacted by our General Assembly—‘shall’ means ‘shall’ and the Sponsor did not comply with the statutes. Petition Granted. Mandate to issue immediately.”
Hall filed a petition Monday, Oct. 31 calling for a rehearing and motion to remove the court’s mandate on behalf of the ballot initiative. It was denied Thursday, Nov. 3.
“There’s no question that these signatures were from registered voters,” Denham said. “We got thrown off because of technical errors, which we argued were clerical errors. It’s frustrating because this process is supposed to be used by an average person.”
6,000 Signatures Later
Wicker, a retired Johnson resident and Issue 7 volunteer, was campaigning in the Washington County Courthouse parking lot Thursday, Oct. 27 when he heard the news.
“I went from anger to tears,” he said. “That whole day was a whole rail of emotions.”
Wicker began volunteering with Arkansans for Compassionate Care in November 2015 when he started collecting signatures for the ballot proposal. That Thursday, everything he had done to promote Issue 7 was null.
He spent months standing on sidewalks for hours at a time and asked passersby if they supported medical cannabis. Most would say yes, agree to give their signatures and be on their way. The few who would ignore him or walk away shaking their heads momentarily inspired him to buy a shirt with the words “Ignorance is a Choice” in bold letters. In the end, he decided that wasn’t the best way to get and keep people’s attention—not that he has much problem with that.
In four months of street-walking, sidewalk-talking and petition-handling for 25-30 hours each week, Wicker collected 6,000 signatures.
He came across paid canvassers from Issue 6 multiple times too. Before they knew who he was, Wicker asked them questions about their issue. Many times they didn’t have answers. They didn’t have a clue, and that was frustrating. It was also motivating.
Wicker went to spring events across the state to promote Issue 7—Riverfest in Little Rock, Pride Week in Fayetteville and the St. Patrick’s Day Parade in Fort Smith, among others.
“Turns out, many people were willing to have a discussion,” he recalled. There were always those few though who were afraid of change––who refused to look at the bigger picture.
“It seems like the medical community is divided,” said Greg Bledsoe, the Arkansas Surgeon General, at a panel discussion at Northwest Arkansas Community College in October. “There are two extreme camps. There is one side that says medical marijuana has no medicinal value, none. That’s not what I’m saying. The other extreme position is that marijuana is a miracle drug.”
Bledsoe said that he falls in the middle category, which says “that marijuana has compounds within it that can help certain medical ailments, but it’s not a medical cure.” Still, he’s against the legalization.
“We should be squeezing out all the medicinal value of marijuana and dosing it appropriately for patients,” he said. “That’s very different from what’s on the ballot.”
State senator Jeremy Hutchinson agreed. He argued that the legal consequences alone of either issue passing would create problems for employers.
“The amount of litigation for wrongful terminations are going to go through the roof,” he said. “Employers are going to struggle mightily, and it will take years to get some case log to provide guidance for employers and employees.”
Wicker shook his head no from his seat a few rows back in the audience. Ignorance is a choice, and these guys were choosing wrong.
Once Issue 7 got on the ballot, he began passing out handbills to market it. He would reach every last one of the naysayers he could before they voted. During the day, he talked to people at the Fayetteville Farmers Market, and at night he would hang around local bars, including Kingfish on School Avenue, JJ’s Grill on Wedington and 21st Amendment on Dickson Street.
The whole thing was reminiscent of another life—one in the ’60s when he was young and protesting the Vietnam War and calling for women’s rights. It was a different time with different issues then, but the motions were virtually the same. The only difference this time around was that Wicker had a personal stake in the cause. Like many other quiet-about-it patients, he’d used marijuana for treatment in the past, when the cancer came. It first showed up in his liver in 2003. A year’s worth of chemotherapy brought hair and weight loss, nausea and vomiting.
“After the first round, it took three years to feel normal emotionally, psychologically, physically,” he said. “It messed with me in a lot of ways. It took a lot before I felt normal again. Then it came back.”
After the second bout in 2009, Wicker lost 30 pounds. He was too afraid to eat for fear of throwing it all back up, he said. That’s when he began using medical marijuana, which helped him develop an appetite and curb his nausea. It was the first time he took something while sick that made him feel normal again—something that taking years’ worth of prescription drug cocktails never did.
Even though they didn’t get the issue he worked so hard to pass, patients in Arkansas got something, and that was worth celebrating. Wicker got something, too.
By the time Issue 6 passed, Wicker already had a letter from a physician confirming that his high anxiety qualified him as a patient. He’d had the letter for several weeks, but by Wednesday, Nov. 9––after he’d stayed up till around 1:30 a.m. to watch the last of those up-in-the-air states go red––he might have a second one, too. Results he received from a routine CT scan that morning revealed a small node in the middle of his left lung. He’d have to wait for a PET scan to confirm, but he’d played this waiting game before. The amendment’s passing and the morning news was one bittersweet pill to take in.
“The s— just keeps falling this morning,” he said.