PR By Lawsuit

Suppose you strongly disagree with the official description of your ballot measure in the “Blue Book” that the state sends to every voter.  What do you do?

A press release merely explaining the issue may be ignored.  But, suppose you intimate that the description is part of a federal government plot to subvert Colorado voters, you accuse the drafters of defauding the public, and you threaten to bring the entire election process to a halt with a lawsuit.  Win or lose in the lawsuit, indeed whether you actually bring it or not, you’ve gotten your message out, cheap, even if you ultimately have to pay the legislature’s $160 an hour of attorneys’ fees. 

The backers of Amendment 44, the marijuana legalization initiative, did just this today in a press release.  Tomorrow they will hold a press conference on the capitol steps launching their lawsuit threat.The sticking point for backers of Amendment 44 is language which states that Amendment 44 allows adults over 21 years old to transfer marijuana to minors without criminal penalties.  The key offending paragraph says (emphasis added):

Amendment 44 allows adults 21 years of age or older to possess up to one ounce of marijuana.  Possession would include consumption or use, as long as it does not occur in public.  It would also include transferring up to one ounce of marijuana to another individual 15 years of age or older as long as there is no compensation, although possesion for those under 21 years of age would remain illegal.

In arguing before the Legislative Council, which drafts the Blue Book, the supporters stated that the language in italics above:

implies an intention on the part of the Amendment proponents that did not and does not exist.  A wording change is necessary to clarify the situation. . . The statement implies that Amendment 44 *would create* this definition of possession. . . in fact, this definition of possesion is already part of Colorado [law] . . . the proponents wanted language as simple as possible. . . . The fact that Amendment 44 would make legal the transfer of less than one ounce of marijuana (for no compensation) to an individual 15 years of age or older is an unintended consequence of the amendment, based on a current statutory definition of possession. . . . We do not deny that the current language by the Legislative Counsel staff is technically accurate.  We do, however, feel that it creates a distorted (and biased) picture of the intent of the Amendment.

The lawsuit will claim that the contributing to a delinquency of a minor statute makes the Blue Book inaccurate.

The lawsuit may fail.  But, this is probably less important to Amendment 44 backers than the information provided to the public to explain what the threatened lawsuit is about.  Conspiracy theories and wild eyed fraud accusations don’t generally help one’s reputation either.  But, most of the people who care deeply about this wouldn’t back Amendment 44 anyway.

Better to seem paranoid, than to have your measure seen as a way to corrupt children.

The real failure here was probably sloppy drafting of the measure itself combined with sloppy participation by the measure’s backers in the comment process (they didn’t even spell “Legislative Council” right), clearly without a lawyer, until the process was closed.  It is hard to get the Legislative Council to change its mind when you say that they are “technically accurate” and can’t spell their name right.  Coming up with a theory that makes the Legislative Council’s language flat out wrong after the final draft has gone to press may be too little, too late.

But, that’s real life lawyering in the world of election law, where PR can matter just as much as the merits, and a lawyer takes his client as he finds him.

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About the Author

Andrew Oh-Willeke

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