Marijuana Law, Policy, and Authority

Four Marijuana Measures on the Ballot in November 2018

Posted by on Monday, October 29, 2018 in News, Updates.

Voters will decide the fate of marijuana legalization measures in four states next week. Michigan and North Dakota voters will decide whether to legalize recreational marijuana (both states already have medical marijuana laws), and Missouri and Utah voters will decide whether to legalize medical marijuana (both states already have CBD laws). The Washington Post has a good, short description of each state’s measure(s) here.

For the most part, these proposals fit the mold of laws already adopted elsewhere and discussed throughout my book. However, there are a few ways in which they bend (not break) the mold. Let me discuss each in turn, starting with the most noteworthy.

  • North Dakota Measure 3 (full text here).

North Dakota’s recreational marijuana law is notable for at least three reasons. First, arguably, it would be the most permissive recreational measure in the entire nation. That’s because unlike every other recreational marijuana law now on the books (see book pages 127, 416-417), Measure 3 imposes no limits on the quantity of marijuana that individuals may possess or cultivate for their own use. It also imposes no special tax on marijuana sales by commercial vendors, giving North Dakota the lowest recreational marijuana tax rate in the nation. (To be sure, those sales would still be subject to the state’s general sales tax—as they are in other states, and the legislature could impose a special tax on marijuana sales later, if it so chooses.)

Second, in comparison to other recreational marijuana states, North Dakota would grant much more generous retroactive relief to persons convicted of past marijuana crimes. In particular, Measure 3 would automatically expunge all past convictions for marijuana offenses. See Sec. 25-03.1-45. By comparison, most other states require past offenders to apply for expungement (or other relief), and states commonly reserve relief for those convicted only of relatively minor offenses, like simple possession. (I discuss California’s and Colorado’s approaches to retroactive relief in Do (Should) Marijuana Reforms Apply Retroactively?).

Third, if Measure 3 passes, North Dakota would be the fastest state to expand from medical to recreational legalization. Each of the 10 other states (including D.C.) that has already legalized recreational marijuana legalized medical marijuana first.  But on average, it took those states more than 13 years to expand from medical to recreational. Massachusetts and D.C. were the fastest to expand, moving from purely medical to recreational legalization in just 4 years. California took the longest—20 years. However, if Measure 3 passes, North Dakota would go from medical to recreational legalization in just 2 years (voters passed the state’s medical marijuana law, Measure 5, back in 2016).

  • Michigan Proposal 1 (full text here).

Michigan’s proposal is not quite as permissive as North Dakota’s, but it would still impose relatively generous quantity limits (12 plants and 10 ounces of marijuana) for personal use, and it would impose a relatively low excise tax on the drug (10%). To put those numbers in perspective, most recreational marijuana states limit possession to just 6 plants and 1 ounce of marijuana (see book page 127), and most states impose special taxes in excess of 20% on recreational marijuana sales (see pages 489-491).

Importantly, if adopted, the Michigan and / or North Dakota measures could set an effective ceiling on the tax rate that neighboring jurisdictions (e.g., Ohio, Illinois, and Minnesota) could expect to impose on recreational marijuana sales. As I discuss in the book (pages 495-498) and in State Taxation of Marijuana Distribution, and Other Federal Crimes, if a state imposes a relatively high tax on a portable commodity like marijuana, consumers and smugglers will seek to avoid the tax, e.g., by buying the drug in states with lower taxes.

  • Missouri Amendment 2, Amendment 3, and Proposition C (full text here, here, and here).

Missouri voters will actually consider 3 different proposals this November (if more than 1 passes, the one with the higher / highest number of votes will become law). Amendment 3 and Proposition C would each require qualified patients to buy marijuana from a licensed commercial vendor. This is what the book labels the “commercial only” approach to marijuana supply (see page 480). This approach has been very popular among states that have legalized medical marijuana since 2009 (see Figure 10.1 on page 532). These two proposals appear to differ mainly in the tax they would impose on medical marijuana: 15% (for Amendment 3) vs. 2% (Proposition C). Amendment 2 would license commercial suppliers (and tax sales at 4%), but it would also permit personal cultivation (what the book labels the “Mixed” approach to marijuana supply (see page 480)).

  • Utah Proposition 2.

I blogged about Proposition 2 (and the legislative compromise that would likely displace it) in Observations on Utah’s Proposed State Distribution System. As I mention in that post, Proposition 2 is a fairly standard medical marijuana law.

That’s it for now. It will be interesting to watch how all of these proposals fare at the ballot box on November 6.

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