Oklahoma voters will not get the chance to vote on a marijuana legalization initiative in November, with the state Supreme Court on Wednesday rejecting the campaign’s lawsuit that sought to secure ballot placement this year.
However, justices also dismissed two separate legal challenges to the ballot title, clearing the initiative’s path for a vote during the state’s next general or special election.
While the secretary of state had certified that activists turned in enough valid signatures to qualify, officials said that the campaign missed procedural deadlines for the 2022 election, prompting the lawsuit that’s been under review by the state Supreme Court for the past several weeks until this ruling.
Now the court has officially denied the campaign’s request to compel the state to put Question 820 on the upcoming ballot.
Justices wrote in a unanimous 9-0 opinion that the petitioners “cannot show that they have a clear right to get SQ820 on the November 2022 general election ballot” under state statute given the time constraints and the fact that there are still two legal complaints that need to be formally closed out.
A total of four petitions were filed against the initiative during the 10-day challenge period—two that contested the signature certification and two that called for revisions to the ballot title and summary that the state attorney general provided for the campaign.
The court had already tossed out the signature-related complaints and then denied requests for rehearings on Wednesday. Justices also rejected the challenges to the summary language, but the petitioners can still submit requests for rehearings by next week.
That possibility for rehearings “prevents this Court from fully resolving” the issue in accordance with statute, the opinion says. “That, in turn, prevents the Secretary of State and the Governor from taking their final steps” to put the initiative on the ballot this year.
Even if the court grants a rehearing and rules in favor of the petitioners, the remaining complaints don’t seek to kick legalization off the ballot. Rather, the petitioners are asking the court to order a revision of the title because of what they’ve identified as misleading omissions about what the measure would accomplish.
Plaintiffs in the one of the challenges—two of whom are affiliated with the Oklahoma Farm Bureau—tried to argue that the language of the ballot title didn’t adequately inform voters about five policy impacts of the proposal. For example, they said that the lack of disclosure about decriminalization provisions for people under 21 and firearm-related implications makes the title affirmatively misleading.
Luke Niforatos, CEO of the Protect Our Kids PAC, said last week that he “partnered to make this challenge happen.” His organization was also involved in litigating against a Missouri cannabis legalization ballot measure, but that state’s Supreme Court ultimately sided with the legalization campaign and cleared the initiative.
The other complaint that the court rejected on Wednesday came from cannabis activist Jed Green, who previously failed to convince the court that State Question 820 violated the state Constitution’s single-subject rule for ballot measures and that the summary was misleading.
In his filing, Green—who led a separate campaign that attempted to put legalization on Oklahoma’s 2022 ballot before giving up that effort—similarly contended that there are compromising omissions in the ballot title, though he pointed to different components than those cited in the other complaint.
Specifically, he said that the title missed three “fundamental” provisions of the law that would be enacted if voters approve the initiative: 1) that the legislature could still amend the law if voters approve it, 2) that fines for public consumption would be limited to $25 and 3) that medical cannabis dispensaries would need to obtain a second license to serve adult-use consumers and adhere to those separate licensing requirements.
Again, the court determined in its rulings on Wednesday that the title is sufficient as is.
Oklahomans for Sensible Marijuana Laws (OSML) has spent a significant amount of time in the state Supreme Court this election cycle. Hopes were raised after the court handed activists a temporary win last month by announcing that it would be delaying its decision on ballot placement, but now it’s issued a final determination.
Justices ultimately agreed with officials, who had argued that the campaign risked missing ballot printing cutoff dates. OSML tried to make the case that the deadlines were “arbitrary.”
A major contention in the case was the fact that the secretary of state’s ballot verification process was outsourced to a third party for the first time this year, and activists said that the company slow-walked the signature certification, potentially jeopardizing their ability to meet the printing deadline.
In a June letter, Oklahoma Election Board Secretary Paul Ziriax also asserted that the governor would have needed to issue an executive proclamation to officially certify any ballot initiative by late last month. But advocates pushed back on that interpretation.
The court previously ruled that it would be assuming jurisdiction of the case—and that the dispute would be “held in abeyance because the time period for filing objections to either the signatures or the ballot title has not yet expired.”
Rather than simply issuing a ruling on ballot placement at that time, the court temporarily allowed the measure to proceed through the normal challenge process despite state officials arguing that key deadlines had already passed.
The measure would allow adults 21 and older to purchase and possess up to one ounce of cannabis, grow up to six mature plants and six seedings for personal use. The current Oklahoma Medical Marijuana Authority would be responsible for regulating the program and issuing cannabis business licenses.
A 15 percent excise tax would be imposed on adult-use marijuana products, with revenue going to an “Oklahoma Marijuana Revenue Trust Fund.”
The funds would first cover the cost of administrating the program and the rest would be divided between municipalities where the sales occurred (10 percent), the State Judicial Revolving Fund (10 percent), the general fund (30 percent), public education grants (30 percent) and grants for programs involved in substance misuse treatment and prevention (20 percent).
People serving in prison for activity made legal under the measure could “file a petition for resentencing, reversal of conviction and dismissal of case, or modification of judgment and sentence.” Those who’ve already served their sentence for such a conviction could also petition the courts for expungement.
OSML, which is being backed by the national New Approach PAC, is one of two citizen efforts to put legalization on the ballot that launched this year. The other campaign, Oklahomans for Responsible Cannabis Action (ORCA), was run by Green, the latest challenger of SQ 820.
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Gov. Kevin Stitt (R) claimed in his State of the State speech earlier this year that voters were mislead when they passed an earlier 2018 initiative to legalize medical marijuana in the state, arguing that the measure may require legislative reform.
The governor said that the ballot question passed by voters “was misleading, and it has tied our hands as we regulate the industry.”
For his part, state Rep. Scott Fetgatter (R) said in an op-ed for Marijuana Moment that was published in March that states should legalize cannabis, but he wants to see the legislature craft thoughtful regulations for an adult-use program, rather than leave it to voters at the ballot.
Meanwhile, an Oklahoma Senate committee in April unanimously approved a House-passed bill to allow for the cultivation and administration of psilocybin by eligible institutions for research purposes—but the version that senators advanced omits a broader decriminalization provision that had previously been included. The legislation was ultimately not enacted before the end of the session.