Missouri Missed Out on Medical Marijuana in 2016. Here's Why 

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click to enlarge Many states have gone green or voted to do so in 2016. Not Missouri. - ILLUSTRATION BY KELLY GLUECK
  • ILLUSTRATION BY KELLY GLUECK
  • Many states have gone green or voted to do so in 2016. Not Missouri.

On May 3, five days before the signature deadline, Jeff Mizanskey stood on the right shoulder of the road outside the entrance to Queenie Park in Ballwin. He waved a banner reading "Support Medical Marijuana/Sign Petition Here" at the cars whizzing past. After about two hours of standing around, he'd garnered few actual signatures.

"The people of this state need this," he said as another car drove by with a honk. "I just wish they would take time and sign the petition."

Mizanskey stands as the living embodiment of the harm wrought by the drug war. After a 1993 conviction for helping transport a few pounds of pot, the small-time Sedalia dealer triggered the state's three-strike drug policy. Despite having only non-violent marijuana offenses on his record, Mizanskey was sentenced to life in prison without parole.

It took concerted effort by Show-Me Cannabis — and a Riverfront Times cover story — to turn Mizanskey into a priority for Missouri drug reformers. Public outcry persuaded Governor Jay Nixon to commute Mizanskey's sentence in September 2015. Mizanskey stood before a parole board for the first time in more than twenty years of imprisonment, and a month later he walked free.

For Mizanskey, now 63, being a free man meant speaking out against drug prohibition. He's criss-crossed the country, attending cannabis conventions and advocating for sentencing reform. And in Missouri, he took up New Approach's ballot initiative as his own personal mission.

Granted, the proposal didn't go nearly as far as Mizanskey would have liked. New Approach Missouri's initiative would allow doctors to recommend cannabis to patients suffering from diagnosed terminal illnesses and serious ailments such as cancer, epilepsy, chronic pain and PTSD. While the initiative would put limits — and yearly fees — on grow operations and dispensaries, it put no restrictions on the amount of the individual licenses available to patients. The retail tax was set at four percent, with the funds going to operation costs and veteran support programs.

It wasn't perfect, but Mizanskey and others believed it was Missouri's best shot at legalization. New Approach hired Mizanskey as an independent signature-collector around the state. With time running out, he'd joined the emergency rush in District 2.

But Mizanskey and the other collectors were already running into the same county-specific quirks that worried Payne. It was maddeningly difficult to find public locations with foot traffic in St. Louis County. Several New Approach volunteer collectors suggest that a noticeable contingent of PCI's paid collectors (mostly out-of-towners, paid per-signature) were more concerned with the quantity of their haul than elucidating the difference between St. Louis city and St. Louis County.

It wasn't like collection was a cake-walk in other parts of the state. Rural districts tend to be more conservative and overall more hesitant to embrace legalizing drugs. On April 28 (the same day Payne received the bummer email from PCI), three signature collectors were arrested in Joplin and cited for trespassing. The collectors, believing they were on public property, had staked out a DMV in an outdoor strip mall. Joplin police disagreed, although criminal charges were ultimately never filed.

Under pressure in District 2, the confusion over the city-county line snarled even the most experienced signature collectors. That included Trish Bertrand, who spent most of the campaign coordinating volunteers in District 7, in the southwest corner of the state.

"I can see why the actual signature collectors over-collected in District 1, because the first time I was in St. Louis I accidentally went to a DMV in St. Louis city," says Bertrand, the executive director of the Springfield chapter of the National Organization for the Reform of Marijuana Laws, or NORML. "Once I figured out I was in the wrong place, I went to a place in District 2, a south county DMV. It was much, much harder to collect there."

And even putting aside the design of Missouri's congressional districts, a host of technical reasons can invalidate a signature, ranging from a voter not being registered at the time of signing, being registered in the wrong district or just signing on the wrong county form. That's why New Approach needed as many signatures as possible. The assumption was that at least half would be eliminated one way or another.

By the May 8 drop-dead deadline, the rush was over. Payne says the collectors turned in 20,000 more signatures, hitting the campaign's goal for District 2. New Approach submitted its petitions to the local election authorities, who would spend the next three months pouring over the signatures.

On August 9, 2016, after months of painstaking review, Secretary of State Jason Kander announced the results. Although New Approach had submitted 40,745 signatures in District 2, the various local election boards wiped out 10,000, deeming them invalid. The campaign had come up short 2,242 valid signatures.

Absent legal intervention, the pot initiative was screwed.

New Approach immediately sued Kander's office, challenging the Secretary of State's declaration and arguing that more than 2,000 so-called "invalid" signatures had been wrongfully thrown out by overworked election officials in District 2, mostly in St. Louis County. A trial date was set for late September in Cole County.

If New Approach's volunteer army thought the ten-day crunch back in May was tough, the next month would push them even harder. PCI staffers in California combed the petitions to identify signatures that appeared valid, and then transmitted spreadsheets of data to Missouri. Local volunteers essentially lived in the Secretary of State's office in Jefferson City. They worked long hours, meticulously matching petition signatures with state voter records. The volunteers searched for signatures invalidated due to sloppy handwriting; those were sent to the lawyers in St. Louis to analyze.

Mizanskey, the ex-con who had spent 22 years of his life in a series of small rooms, now willingly confined himself to computer-strewn conference rooms in Jefferson City and St. Louis. Along with other volunteers, he cross-checked the spreadsheets coming from PCI with the official state voter rolls. They looked for signatures marked by local election officials as "not registered," identifying the ones that appeared to be registered properly in District 2.

The volunteers went through thousands of names, checking for signatures, addresses and registration cards. The documents were bundled and printed by the thousands, rising in paper towers across a conference table in the Secretary of State's office. At day's end, a courier would deliver the stacks of evidence to the lawyers' office in St. Louis, where records were analyzed and processed by a separate team of volunteers. Then the courier would drive back to Jefferson City for more. This went on for weeks.

"It was amazing how many signatures we found that should never have been thrown out to begin with," says Chris Chesley, a St. Louis volunteer who estimates he put 150 hours into New Approach's pre-trial efforts. He acknowledges that other factors were at play in St. Louis County, and that no evidence suggests that election officials maliciously struck signatures. Still, "no other county threw out more signatures than St. Louis County," he says. "It just seemed that it was out to get us from the very beginning."

Eric Fey, director of elections for St. Louis County, doesn't see a conspiracy in how his department handled New Approach's petitions. He notes that four other initiative campaigns managed to assemble enough signatures to make the ballot.

"What it really comes down to is that they collected fewer signatures than the other petitions," Fey says. "I think if they're being honest, that's probably the heart of the matter here. They didn't collect enough signatures."

But there was an unambiguously hostile force opposing New Approach's legal case, and it wasn't within the Secretary of State's office or the county elections board. It was a collection of Missouri prosecutors.

An August 18 affidavit signed by twelve Missouri prosecuting attorneys, including Jennifer Joyce of St. Louis city and Bob McCulloch of St. Louis county, argued that it didn't matter one whit if New Approach's initiative had enough signatures.

Weed, they argued, was illegal under federal law. Legalizing it would violate the Missouri and U.S. Constitution.

Marijuana, the affidavit stated, is "a destructive drug, with no benefits (medical or otherwise)." Access even to medical marijuana "would be a devastating mistake for millions of Missourians." The affidavit requested that the prosecutors' attorney be allowed to take part in the trial, arguing that local election officials properly invalidated the signatures. And if New Approach could convince a judge that its initiative successfully crossed the signature threshold, the prosecutors wanted to challenge the basic legitimacy of legalizing drugs on the state level.

Despite its retrograde pearl-clutching, the affidavit was enough to sway the judge. He allowed the prosecutors' group to join the case. New Approach's legal team suddenly found itself preparing for a mismatched battle against both attorneys representing the Secretary of State and an outside counsel representing the prosecutors.

The trial began September 19. Fittingly, it took place on East High Street, in a courthouse presided over by Cole County Circuit Judge Daniel Green.

John Payne took the stand for eight hours over the course of two days, contending with dual legal teams bent on cross-examining him into the ground. But he managed to hold his own on the minutiae of signature collection.

New Approach entered its evidence: 2,246 signatures that it believed had been wrongly invalidated — providing enough of a margin to squeak by the 2,242-signature shortfall in District 2. But the opposing attorneys gradually whittled away at New Approach's evidence. Some signatures turned out to be duplicates, reducing the number to 2,219. That left New Approach Missouri short 23 signatures.

The two sides volleyed back and forth. Even during the trial, as New Approach's volunteers continued to search the petitions in the hope of uncovering more valid signatures, the attorneys for the Secretary of State tag-teamed with the attorney representing the prosecutors; they were able to cut 200 more signatures from New Approach's evidence.

By the second day, New Approach's attorneys were desperate. Their last hope was to convince Judge Green to accept 500 invalidated signatures from registered voters who had mistakenly signed the wrong county form.

The Missouri constitution gives registered voters the right to support ballot initiatives, New Approach's lawyers argued. The mere use of a different county's form shouldn't strip them of that right.

The lawyers cited a 2010 case in which Judge Green's predecessor on the Cole County bench, Paul Wilson, ruled that state laws disqualifying the signatures of properly registered voters placed an "unconstitutional burden" on the initiative process, and violated the constitutional rights of those signing petitions. However, that ruling was limited to a single case, and so getting Judge Green to apply it here would take some persuasion.

The group was confident, says Bertrand. Along with Mizanskey and other volunteers who filled the courtroom, she'd watched the trial and Payne's testimony with bated breath.

"I think our luck just ran out," she says.

In the end, Judge Green rejected New Approach's arguments about the "wrong county" signatures. And that was it. There was no time to appeal, because absentee voting had to begin in just seven days.

With the trial concluded, it was truly over for medical marijuana in Missouri in 2016. After all the time and money, the only thing left for the local activists was heartbreak — and questions both about what went wrong in the past and the way forward in the future.

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