5 States Poised To Legalize Pot At The Ballot

Law360 (October 21, 2020, 2:43 PM EDT) -- On Election Day, voters will have the opportunity to turn the most densely populated state in the U.S. into the next haven for adult-use cannabis, while deep-red Republican strongholds may make medical marijuana a reality.

New Jersey could become the first mid-Atlantic state to legalize recreational cannabis, while voters in Mississippi, Montana and South Dakota will have the opportunity to vote between multiple measures that could shift the national cannabis landscape.

In Arizona, where a recreational cannabis ballot measure was narrowly defeated four years ago, advocates buoyed by positive polling and the continuing success of the state's medical program are eyeing a win.

"I think the lesson we've understood is that it is easier to pass these reforms through the ballot," said Jared Moffat, campaigns coordinator at reform advocacy organization Marijuana Policy Project.

Vermont made history when it became the first state to legalize recreational cannabis through legislation, rather than a ballot question, in 2018. But the legalization bill alone did not provide for a legal cannabis marketplace, and a tax-and-regulate scheme did not become law until this month.

"When you talk about passing legislation, it brings up literally hundreds of questions when you're trying to find common ground on how to regulate marijuana — about home cultivation, will there be a limit on licenses, what types of social justice provisions will there be," Moffat said.

Cannabis ballot measures for 2020

Marijuana legalization measures, medical and recreational, are on the ballot in five states.

Garden State Sees Green

A thwarted effort in New Jersey to legalize adult use in the state legislature paved the way for a state ballot initiative that has received the enthusiastic support of the state's Democratic governor, Phil Murphy.

"Eleven states and Washington, D.C., are already reaping the benefits of the job creation, economic development and importantly, social justice reform that comes with legalization and regulation," Murphy said in a recent video released by the NJ CAN 2020 campaign. "It's time for us in New Jersey to join them."

The New Jersey proposal, Public Question 1, would give oversight of the recreational market to the state's Cannabis Regulatory Commission, which currently regulates the Garden State's medical cannabis program.

The question would allow local municipalities to levy their own tax on marijuana sales, up to 2%, on top of the state sales tax of 6.625%, pending approval by the state legislature. A bill to exempt medical cannabis from the state sales tax was introduced earlier this year, and is currently in committee.

If passed, the proposed amendment to the state's constitution will become effective in Jan. 1, and the legislature will be tasked with hammering out details about how the recreational market will be regulated. Two proposed resolutions about how to spend tax revenue from adult-use sales are pending in the state Assembly. One directs proceeds to property tax relief; the other toward mental health and drug treatment programs.

Meanwhile, two state Senate bills that would decriminalize possession of small amounts of marijuana — one of which passed the state Assembly in June — are stuck in committee.

Arizona Recreational Use Gets Second Chance

In Arizona, voters will have an opportunity to vote on a ballot initiative to legalize recreational marijuana, just four years after a similar measure was narrowly defeated.

Similar to New Jersey, the proposed recreational regime is designed to integrate with the state's existing medical cannabis program, which has been up and running in Arizona for eight years.

Proposition 207, or the Smart and Safe Act, would put the regulation of recreational marijuana under the authority of the state's Department of Health Services, and would levy a 16% tax on adult-use sales.

Jon Udell, an associate at Scottsdale-based Rose Law Group and communications director for the Arizona chapter of National Organization for the Reform of Marijuana Laws, credits the proposition's favorable polling compared with 2016 to Arizonans' familiarity with medical cannabis and Proposition 207's tacit promise to maintain continuity with that system.

"A big motivating factor, I think, is the length we've had medical marijuana," Udell said. "The arguments against Proposition 207 are the same tired arguments that we've seen trotted out about teen use and gateway drugs."

But with the medical program's success, "you're seeing a lot of the prohibitionist tropes go out the window," he added.

The proposition would require the DHS to create regulations which, among other provisions, would set the stage for marijuana deliveries to begin between 2023 and 2025, although local municipalities will have the power to ban them. It would also create a system whereby people convicted of lower-level marijuana offenses can seek expungements.

Like other recent adult-use initiatives, Proposition 207 also provides that the DHS' program would have a social equity component, allowing for ownership and operation of licensed cannabis businesses by people from communities that have been negatively affected by the drug war.

South Dakota Eyes End to Prohibition

South Dakota will make history as the first state to vote on ballot initiatives for both medical and adult-use cannabis at the same time. The medical question, Initiated Measure 26, would make cannabis available for "debilitating medical conditions," while the recreational initiative, Amendment A, would legalize it for anyone over the age of 21.

Amendment A would authorize the state's Department of Revenue to issue licenses to cannabis businesses and let local municipalities ban or cap the number of licensees within their borders. The recreational initiative would also require the GOP-controlled legislature to pass laws regulating medical cannabis by April 2021.

The initiative would also create a 15% tax on recreational cannabis, and would direct the Department of Revenue to issue rules regarding the regulation of adult-use cannabis by April 2022.

The medical marijuana initiative would assign cannabis regulation to the state's Department of Health, and allow medical cardholders to possess up to three ounces of cannabis. The initiative would also recognize out-of-state cards for non-residents.

Dueling Measures in Mississippi

In Mississippi, there are two competing medical marijuana initiatives on the ballot. The first, Initiative 65, was spearheaded by Mississippians for Compassionate Care. It lays out qualifying medical conditions, sets a 2.5-ounce cap on the amount of cannabis patients and caregivers can possess, establishes a timetable for the program's rollout and levies a 7% tax.

The second, Alternative 65A, was put on the ballot by the state's Republican-controlled legislature after Initiative 65 was approved. It is much sparser on details. It would add text to the Mississippi constitution about a medical marijuana program, though it lacks definitions about how the program would be enacted. The proposed text includes provisions that the "program shall be based on sound medical principles" and "shall be administered by an appropriate state agency."

In addition to making accusations that Alternative 65A sows confusion on the ballot — voters must choose first whether to approve either initiative, then cast a second vote for which one they support — Mississippians for Compassionate Care has said the legislature-led alternative does not include the specifics and safeguards necessary to create an effective medical cannabis program.

Initiative 65 would put regulation in the hands of the Mississippi State Department of Health, which "may establish an advisory committee to assist the department in the promulgation of rules and regulations and the regulation and enforcement of the provisions of this article," according to the proposed text of the amendment.

The language also directs the health department to begin issuing licenses and medical cards by mid-August 2021, and authorizes the department to set its own fees to help implement the program.

"We think the legislature put this alternative on as a way to confuse voters to make them think they have to pick one or the other," Moffat of the Marijuana Policy Project said. "I think the campaign is doing a good job of showing supporters what they need to do on their ballot and how to vote."

What's at Stake in the Big Sky State

Finally, Montana residents will vote on two measures regarding the legalization of adult-use cannabis use.

The first, Constitutional Initiative 118, would only pave the way for legalization, by allowing either the legislature or another ballot initiative to set a legal age limit for recreational marijuana use different from the state constitution's current adulthood age of 18.

The second, and more substantial question, is Constitutional Initiative 119, which would legalize recreational marijuana for Montanans 21 or older, levy a 20% tax on marijuana sales and assign the state's Department of Revenue to regulate the legal cannabis market. Supporters of the bill point to conditions in the initiative which require tax revenue to be directed toward conservation efforts in Big Sky.

No Vote in Nebraska

One state that will not be voting on marijuana reform this November is Nebraska, after the state Supreme Court ruled in September that the question violated the state constitution's "single subject clause" by asking voters to consider multiple proposals that should rightly appear as separate propositions.

Specifically, the court found that the amendment sought to create a constitutional right to grow and sell medical cannabis, and that this was distinct from the ballot measure's primary purpose of allowing patients access to the drug.

Moffat said the high court's decision was "heartbreaking," adding that the signature drive, which took place during the early months of the coronavirus pandemic, "overcame a lot of odds."

Nebraska is one of 16 states that does not have a medical marijuana program, and one of only two states that does not allow patients to use low-THC cannabis oil for medical purposes. A limited, four-year trial program allowing researchers to investigate CBD seizure treatments ended in October 2019

Nebraskans for Medical Marijuana, the campaign behind the initiative, says it has regrouped and vowed to accomplish medical legalization through legislation during the 2021 session.

--Editing by Rebecca Flanagan.

For a reprint of this article, please contact reprints@law360.com.

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