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MARTINSBURG, W.Va. — A state lawmaker said the Berkeley County Council’s move to exclude residents of Martinsburg and Hedgesville from voting on the medical cannabis referendum in Tuesday’s primary election amounts to a “disenfranchisement of voters” and their exclusion could trigger a legal challenge.

On nonpartisan ballots in the election, voters who don’t live in either of Berkeley County’s two incorporated municipalities are asked whether medical cannabis organizations, as defined by state law, should be permitted and allowed to operate in the county.

If a majority of the voters answer “yes” to the ballot question, state-licensed medical cannabis organizations, including dispensaries, growers and processors, would be allowed to operate in Berkeley County. 

If rejected, medical cannabis organizations would be prohibited in the county outside of the municipal limits of Martinsburg and Hedgesville.

In a letter Friday to the Berkeley County Council, Del. Jason Barrett, D-Berkeley, wrote that he believes the voter exclusion is improper and he asked the county not to certify the election results. The county council convenes as the county’s election canvassing board to inspect vote tallies and declare and certify election results.

In response to Barrett, council Attorney Norwood Bentley wrote Saturday morning in an email that he wouldn’t recommend the council refuse to certify the election results, noting the county also sought assistance from West Virginia Secretary of State Mac Warner concerning the medical cannabis issue.

“The circuit court of Berkeley County is available, if you or others wish to challenge the vote,” Bentley wrote.

The council voted 4-0 in February to place the medical cannabis question on the ballot. Council Vice President Dan Dulyea abstained from the vote because he said at the time that his company has been in contact with parties interested in engaging in the medical cannabis business in the area.

Bentley wrote in his email to Barrett that Warner’s office concurred with the county that the West Virginia Legislature provided “no real guidance” in the medical cannabis law that lawmakers passed in 2017.

“The (medical cannabis) statute, itself, makes a distinction between the handling of the matter by counties and cities,” Bentley wrote in the email. “Cities may control (medical cannabis organizations) through zoning, which is what Martinsburg preferred when consulted. Counties have no control mechanism other than by prohibition (of the organizations) or acceptance of the default position.”

Bentley said any possible flaw in the process of taking up the medical cannabis issue “was invited by the failure of the Legislature to write the legislation clearly and unambiguously.”

The council was advised in February that the “default position” in state law is that medical cannabis organizations are permitted in counties, unless voters decide otherwise, but that the statute doesn’t provide a procedure.

Council members also were told that the “silence” on how to proceed also is contrary to specific instructions that have been given for other referendums, including the Sunday Brunch issue, a local option to allow Sunday hunting and excess levies or bond issues.

In his letter, Barrett wrote he believes that voters in the county’s two incorporated municipalities should be entitled to vote on the medical cannabis question, citing the county’s past practice in deciding referendums, as well as state law and the West Virginia Constitution.

“When the Legislature writes a law that states ‘by a vote of the residents of the county’ and is silent on municipalities, they chose that language because they intended for every voter of a given county to have the opportunity to vote on the referendum,” Barrett wrote.

Barrett, who is opposed for reelection by Republican Kim Mongan-Saladini this year but is running unopposd in Tuesday’s primary, also wrote that the exclusion of municipal residents in the election deviates from how past referendums concerning Sunday hunting and “Sunday brunch” alcohol sales were decided.

When Sunday hunting was put on the ballot, Barrett noted that the referendum also was put to residents of Martinsburg and Hedgesville, where hunting generally is prohibited within municipal limits.

Regarding the Sunday brunch issue, the question also was decided by all county residents despite the fact that Martinsburg already had authorized earlier alcohol sales on Sundays via the state’s municipal home rule program.

Barrett also cited Putnam County’s handling of the medical cannabis issue in the primary election, but noted that voters in all seven of that county’s municipalities were given the right to vote on three ballot referendums regarding medical cannabis organizations on their primary ballots.

In addition to state law, Barrett also noted that the state constitution provides that state residents “shall be entitled to vote at all elections held within the counties in which they respectively reside.”

“If the election is certified without municipal residents being permitted to participate, I fully anticipate a legal challenge,” Barrett concluded in his letter.

Regardless of Tuesday’s vote, Barrett said he doesn’t believe that medical cannabis will be available to patients anywhere in West Virginia until 2021 due to the ongoing implementation of the state medical cannabis law.

The county-adopted ordinance placing the medical cannabis issue on the ballot states that the move is justified, at least in part, “given the heated public debate as to whether marijuana and cannabis are ‘gateway’ drugs that lead to other drug addictions that the public should have the right to decide whether it wants to welcome medical cannabis organizations to the unincorporated areas of Berkeley County and whether the existence of such medical cannabis organizations could negatively impact the efforts of Berkeley County and its partners to continue the fight of drug and opioid addiction.”

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