For the third time this week Arkansas Attorney General Dustin McDaniel has rejected a proposed ballot measure related to marijuana legalization due to “ambiguities in the text of the measure.” I’d make a joke about petitioners being too high, but actually there’s nothing funny about the pernicious continuation of the expensive, unnecessary, ineffective, racist Drug War.

After the jump, the proposed text and the AG’s explanation of the problems with the wording.

The proposed ballot measure:

Repealing Arkansas Cannabis laws allows those using cannabis for symptomatic relief of illness to do so without fear of arrest by state or local enforcement. Federal law presently classifies Cannabis as a Scheduled [sic] I control drug.

Repealing the Arkansas cannabis laws would enable farmers to legally apply for a federal permit to grow cannabis as a farm commodity. Presently cannabis derived products are imported while Arkansas farmers are denied the right to grow cannabis crops. This is a disadvantage to Arkansas farmers.

From the AG’s response:

This measure is ambiguous in the following respects, which track the problems I noted in my response to your immediately previous submission:

As a general matter, these three provisions do no more than state objectives to be realized by presumably undertaking some practical action. You recite this action in your ballot title – namely, “repeal[ing] all Arkansas laws pertaining to the cannabis plant” – but never declare or direct the repeal in the text of your measure itself. As a result, rather than summarizing your measure, your ballot title impermissibly adds substantive provisions thereto. As I have previously noted on several occasions:

The text of a proposed constitutional amendment, if adopted, becomes a part of the Arkansas Constitution. Ideally it consists of clear, complete sentences that actively dictate the legal effects desired by the sponsors. A ballot title, on the other hand, is an impartial, concise summary of the proposed amendment. As a consequence, it usually consists of a series of short descriptive phrases or clauses, which refer to, summarize and delineate the various important provisions of the amendment. The format and wording of these summary phrases or clauses, however, do not ordinarily direct action or actively bring about changes in the law.[15]

The text of a measure, in short, actually sets forth and effects changes in the law.[16] The ballot title, by contrast, merely summarizes what the measure in itself has directed. Your measure contains no operative language of the sort required in the text of a measure, instead merely reciting various objectives to be realized by changes you have failed to recite. I am consequently unable to summarize in the ballot title the practical action you apparently contemplate.

Your current submission, like its predecessor, represents that repealing Arkansas cannabis laws would restore to Arkansas farmers the right to grow cannabis. As I noted in response to your previous submission, cannabis in any of its cultivar forms is classified as a Schedule I drug under the federal Controlled Substance Act,[17] and it is accordingly subject to federal law that conflicts with and supersedes contrary state laws.[18] This fact suggests that the repeal of Arkansas cannabis laws would not have the effect you propose on the ability of Arkansans legally to cultivate marijuana.

If the text of a measure inaccurately asserts that the amendment will realize certain specified goals, any such inaccurate assertion will in itself render the text ambiguous and insusceptible of summation in a ballot title. I am consequently foreclosed from summarizing the measure in a way that adequately informs the voters of legal consequences whose disclosure might prompt serious concern in a reasonable voter.

The first sentence of your measure’s second paragraph declares that “[r]epealing Arkansas Cannabis laws allows those using cannabis for symptomatic relief of illness to do so without fear of arrest by state or local enforcement.” This sentence is confusing in that it is unclear why you here mention as excluded from state or local prosecution only the medical use of marijuana, without referring to industrial or recreational uses. Presumably, striking all state laws relating to cannabis would enable individuals, “without fear of arrest by state or local enforcement,” to put cannabis to any use they chose that was not barred under state or local law for some unrelated reason. The fact that you have focused only on one use as exempt from prosecution raises the question whether other uses would be likewise exempt. Without resolution of this ambiguity, I am unable to summarize your measure in a ballot title.