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Sensi Magazine

VOTE: The Legalization Landscape

Sep 27, 2016 01:30PM ● By Leland Rucker
A record number of state measures asking voters to approve cannabis legalization and regulation have qualified for the ballot next month. Five states are considering whether to allow recreational adult use, and at least two others are considering seeking approval for medical cannabis in one form or another. 

None are guaranteed a victory, but should all pass, it would be a significant boost in the effort to end the cannabis portion of the inhumane War on Drugs the US has waged against millions of its own citizens with their own tax money over the last 50 years.

“One in five states will be able to go to the polls and vote for some level of legalization,” says Paul Armentano, deputy director of NORML, the nation’s oldest organization advocating for cannabis reform. “It’s important to emphasize that there are an unprecedented number of state initiatives. It’s a significant evolution and maturation of our issue and the way advocates campaign for marijuana reform.” 

Armentano notes that it is also another indication of the current disconnect between the views of constituents and their elected officials. “It’s not the way the democratic process is supposed to work. When there’s a change in opinion, they [ legislators] should be reflecting on and making that change,” he says. “But they aren’t, and people are taking it into their own hands.” 

The five states considering commercial legalization are Arizona, Nevada, Massachusetts, Maine, and California. The Golden State is the biggest question mark. California has a long history with the plant. It decriminalized possession in 1975 and was the first to approve medical marijuana with the Compassionate Use Act of 1996. Proposition 19, proposed in November 2010, would have made possession and cultivation legal for adults, but it was defeated 53.6 percent to 46.5 percent. 

Now, six years later, Proposition 64, the Adult Use of Marijuana Act, is on the ballot in California. It is being backed by a coalition of state and national organizations and leaders. Let’s Get It Right CA is the big local group, but Governor Gavin Newsom, the ACLU, NAACP, Drug Policy Alliance, Students for Sensible Drug Policy, NORML, and Marijuana Policy Project are all pushing the initiative. Tech entrepreneur Sean Parker has donated at least $2.5 million to the cause. Groups opposing the recreational measure include Citizens Against Legalizing Marijuana and the California Police Chiefs Association. 

“It’s one of the largest states in the country, and it’s also a very diverse state geographically, politically, and demographically,” says Mason Tvert of the Marijuana Policy Project. The passage of Proposition 64, Tvert says, “would reinforce the current sense that people are feeling, that the nation is ready to move beyond marijuana prohibition.”


Proposition 64 would allow adults to possess an ounce of flower and eight grams of concentrate and to grow up to six plants, and it would allow the state to license and tax sales. Counties and municipalities would have the ability to limit or ban commercial marijuana operations, as well as set local tax rates. There is no specific provision for public consumption, but there are restrictions on marketing to minors and allowances for resentencing and the expunging of records for prior marijuana convictions. 

The initial taxes would include a 15 percent state excise tax on retail sales, and cultivation taxes of $9.25 per ounce of flower and $2.75 per ounce of trim/ leaves. Backers estimate $1 billion annually in state tax revenue, a big number until you realize that it’s a minuscule portion of the state’s $252 billion budget. 

The demographic implications could be staggering. The combined populations of Oregon, Washington, Alaska, Colorado, and the District of Columbia, where recreational use is already legal, total about 17.8 million. There are 39.5 million people in California alone. 

The passage of Proposition 64 would more than triple the number of Americans with legal access to cannabis to 57 million, or 17 percent of 322 million Americans, in spite of it being illegal federally and internationally. 

The legislative numbers could come into play, too. California has 53 members in the US House of Representatives, and if the measure passed, many of them would then have legal industry constituents in their districts, which might make them more eager to join the bipartisan movement to improve banking and tax laws currently caught up in one committee or another. 

In Washington, the House has been the most active on the cannabis front during the last few years, and at present cannabis reformation bills generally draw bipartisan support, with member votes in the low to mid 200s. Fifty-three more seats could add considerable clout to efforts to get things going in the House. Moving cannabis out of Schedule I will require a congressional vote, and it’s more likely to happen if the House were to fall to Democrats. With the Senate up for grabs, who knows? 

In looking at a map of legalized states, it’s easy to see how heavily it skews to the West. That’s why initiatives in Massachusetts and Maine are being carefully watched by advocates and prohibitionists alike. 

In Maine, voters are being asked to legalize recreational marijuana and regulate it like alcohol. The measure is supported by the Legalize Maine group as well as all national legalization organizations. Both Governor Paul LePage and Attorney General Janet Mills have come out against the initiative, as has Smart Approaches to Marijuana. 

Petitioners submitted more than enough signatures to make the ballot, but the Maine secretary of state invalidated more than half of those. That led to a lawsuit by petitioners, and a court overruled the state, which meant that the measure qualified for the ballot on April 27. Though structurally similar to the others, this one would provide for licensed social clubs that will be allowed to sell cannabis. 

Massachusetts had approved replacing criminal penalties on adult possession in 2008 and legalized medical cannabis four years later. On the upcoming ballot, Question 4 would make it legal for adults to possess up to 10 ounces of cannabis at home and 1 ounce in public. State Governor Charlie Baker and Boston Mayor Marty Walsh are campaigning against the initiative, while former Governor Bill Weld and many state senators and representatives are backing it. 
Polls are equally divided for and against passage in both states. “The Northeast has been historically progressive in marijuana reform, but there is yet a state to take a step in that direction,” Armentano says. “It’s important that Maine or Massachusetts move forward beyond decriminalization and into actual regulation.” 

Two other western states, Arizona and Nevada, are also seeking recreational legalization. Arizona’s measure has an interesting history. Though there are almost 100,000 medical cardholders in the state, cannabis has not been decriminalized, which means that if you don’t have a card, you can be sentenced to several months in jail for simple possession. Early last year, Representative Mark Cardenas introduced Bill 2007, which he argued would legalize cannabis and get the state legislature ahead of the issue instead of having to deal retroactively with the passage of a ballot measure this year. He found no support among his colleagues, and the state now faces Proposition 205. A second legalization initiative did not get the required number of signatures to make the ballot, and its backers filed a failed lawsuit over ballot language. 

Nevada passed medical marijuana in 2000, and this year’s Question 2, which qualified in late 2014, seeks to legalize and regulate the sale of cannabis for adults. One interesting difference is that in order to qualify to grow your own plants in Nevada, you would have to live at least 25 miles from a licensed dispensary. Tax revenue would be earmarked to support K-12 education. 
Interestingly, the alcohol industry supports the Nevada measure but opposes the Arizona one. Nevada’s includes demands for a distributor between growers and retailers, and the early licenses for those positions can go to licensed liquor distributors. The industry has responded by vocally and financially supporting the legalization effort. In Arizona, liquor interests are giving money to groups fighting the legalization measure. 


At present, 196 million Americans, or 61 percent of us, now live in states where medical marijuana is legal in some way, and polls continue to indicate that about 8 of 10 Americans say cannabis should be available to medical patients. Still, only two more states have ballot measures: Florida and Arkansas. Medical initiatives in Montana and Missouri failed to get enough signatures to make the ballot. 

In Florida, a large East Coast state, Amendment 2 would allow higher-potency strains for patients and expand the short list of illnesses for which cannabis can be prescribed. A similar initiative two years ago got 57 percent of the popular vote but still fell short of the 60 percent required to pass in the state. Most polls are showing higher numbers of voters ready to vote “yes” this time around, although it is opposed by the Florida Medical Association. 

In Arkansas, two similar but competing proposed constitutional amendments have made the ballot. Both allow patients with certain medical conditions to purchase cannabis but differ in rules and regulations such as whether patients could grow their own. 

Tvert says that no matter what happens, it will be a victory for the legalization movement. “Whether they all win or lose, they are victorious in moving this issue forward,” he says. “Every time a state considers this, more people are getting involved. Look at Colorado. In 2006, we knew we would lose, but it furthered the dialogue. If an initiative were to repeal Colorado or Oregon laws, that would be a setback.” 

Armentano says that many are arguing that 2016 is different from past presidential elections because neither major party candidate is well liked. But, he says, it will be won the old-fashioned way. “Ultimately this is going to shake out like any. It will come down to voter turnout, to getting the message out and getting people to the polls.” 

Both Tvert and Armentano feel we’ve already passed the tipping point. “We’re well over 50 percent support regardless of what poll. That’s been the case for several years,” Armentano says. “The disagreement isn’t with the concept, it’s in the details. Moving forward, it’s going to come down to finding a consensus on how we regulate the best tax rate, the best regulations. That’s going to be an evolving process.”