Marijuana Law, Policy, and Authority

Marijuana Reforms Win Big at the Polls

Posted by on Wednesday, November 4, 2020 in News, Updates.

On November 3, five states had measures on the ballot to legalize recreational and / or medical marijuana: Arizona, Mississippi, Montana, New Jersey, and South Dakota. Voters in Mississippi, Montana, and South Dakota actually had more than one measure to consider.

Notably, all of proposed ballot measures passed, most by hefty margins. This is the first major election I can recall where every marijuana initiative under consideration passed.

As of Nov. 3, 2020, thirty-six (36) states (including DC) have adopted medical marijuana laws, and fifteen (15) of those states have adopted recreational marijuana laws.

Here is a quick rundown of the different measures, by state:

Arizona

Proposition 207, which legalizes recreational marijuana, got 59.8% support.

Prop 207 is similar to recreational marijuana laws previously adopted by other states. It permits possession and personal cultivation by adults (21 years and older); it authorizes and regulates the commercial cultivation and sale of recreational marijuana; it gives the state’s medical marijuana industry first dibs on getting licenses to serve the new recreational market; it enables individuals previously convicted of marijuana crimes to have their records expunged; and it creates social equity licenses for communities that historically bore the brunt of the war on marijuana. For the full text of the measure, see here.

Mississippi

Voters had two medical marijuana measures to consider: Initiative 65 and Alternative 65A. Voters overwhelmingly supported passing one of these measures: 68.2% voted to support either one, but they preferred Initiative 65 by a three to one (3 to 1) margin. (Mississippi used a two-step voting process.) News Mississippi breaks down the difference between the two measures here. Since Initiative 65 prevailed, the differences between the two measures (and the reasons why Alternative 65A was placed on the ballot) are moot now.

Proposition 65 is very similar to medical marijuana laws previously passed by other states. On one issue that has previously divided states, Proposition 65 follows the path of states that have legalized medical marijuana more recently – it does not authorize personal cultivation of medical marijuana, instead requiring qualifying patients to obtain their medical marijuana from a state-licensed dispensary (which Mississippi calls “medical marijuana treatment centers”). My book discusses the different supply models medical (and recreational) marijuana states have adopted, and their contrasting approaches to personal cultivation, on page 480.

For the full text of Proposition 65, see here.

Montana

Voters passed two measures: Initiative-190 got 56.6% support, and Constitutional Initiative-118 got 57.7% support.

Initiative 190 is the more important of the two measures. It legalizes and regulates recreational marijuana. It is similar to Arizona’s Proposition 207 (discussed above) and recreational marijuana laws previously passed by other states, though it does not (as far as I am aware) include any social equity provisions. For the full text of I-190, see here.

The second measure, Constitutional Initiative 118, complements I-190, rather than competes with it (as was the case with Mississippi’s two measures). before the election, Montana’s constitution effectively barred the state from discriminating against anyone 18 years of age or older, except when it comes to the purchase of alcohol (which the state, by statute, limits to persons 21 years and older). C-118 amends the state constitution to allow the legislature to raise the minimum age for the purchase / possession of marijuana (I-190 sets the age to 21 years, as every other recreational marijuana state has done). Pursuant to CI-118, Section 14 of the Montana constitution now provides (change is italicized):

“A person 18 years of age or older is an adult for all purposes, except that the legislature or the people by initiative may establish the legal age for purchasing, consuming, or possessing alcoholic beverages and marijuana.

New Jersey:

Voters overwhelmingly passed Public Question 1 with 66.9% support; the measure legalizes recreational marijuana.

Unlike many other ballot initiatives, Public Question 1 leaves it to the state legislature and a state commission to decide how to regulate recreational marijuana. I think leaving those details to lawmakers is a good idea, for a variety of reasons I discuss in my book (pages 290-295). The text of Public Question 1 is thus remarkably (and perhaps deceptively) simple:

“Do you approve amending the Constitution to legalize a controlled form of marijuana called ‘cannabis’? Only adults at least 21 years of age could use cannabis. The State commission created to oversee the State’s medical cannabis program would also oversee the new, personal use cannabis market. Cannabis products would be subject to the State sales tax. If authorized by the Legislature, a municipality may pass a local ordinance to charge a local tax on cannabis products.”

There is, however, one very notable feature of this measure – it appears to limit the state’s power to tax sales of the drug. As I read it, the measure only allows the state to impose the state sales tax on marijuana – that tax is currently 6.625%, which is far lower than the tax rate imposed by other recreational marijuana jurisdictions. For example, South Dakota’s Measure A imposes a tax of 15%. To be sure, Public Question 1 allows local jurisdictions to impose additional local taxes on marijuana sales. But for reasons I explain in my article on Marijuana Localism, there is a practical limit to the tax rate that any local jurisdiction can charge, given that residents can easily drive to stores in other towns to buy marijuana if their local jurisdiction imposes a comparatively high tax rate on marijuana sales.

South Dakota

Voters passed Amendment A, which legalizes recreational marijuana, giving it 53.4% support; they also, more handily passed Measure 26, which legalizes medical marijuana, giving it 69.2% support.

This is the first time a state has legalized recreational marijuana at the same time it has legalized medical marijuana. Every other recreational marijuana state legalized medical marijuana first – sometimes decades before legalizing recreational marijuana (e.g., in California, there was a 20 year gap between the adoption of Proposition 215 and Proposition 64).

Importantly, the passage of Amendment A did not moot Measure 26. In other words, adopting a recreational marijuana law does not make a medical marijuana law unnecessary. See my book, page 125 n.1, for a quick synopsis of the reasons (e.g., all medical marijuana states allow minors to use the drug).

Both Amendment A (recreational marijuana) and Measure 26 (medical marijuana) are similar to reforms adopted by other states. Unlike Mississippi’s new medical marijuana law, however, Measure 26 appears to authorize qualifying patients to cultivate their own marijuana. The full text of both of South Dakota’s new laws is available here.

That’s it for now!

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One Comment on “Marijuana Reforms Win Big at the Polls”

awaiting moderation.
2020 November 5 at 1:27 pm

agario on November 5th, 2020 at 2:27 pm

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