We are three weeks from the election on Nov. 8, which may bring another wave of state-by-state cannabis legalization to the industry. Although President Joe Biden, on Oct. 6 , announced presidential pardons for those charged or convicted of federal, simple marijuana possession, the president’s proclamation is not legalization nor is it federal decriminalization of cannabis. The matter of cannabis reform remains largely in the hands of state officials—and voters.
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Cannabis in America is no longer simply partisan along major political party lines. Some in politically red (Republican) states support marijuana legalization and many politically red states have legalized medical marijuana to include some recent additions to the medical-state-roster such as Mississippi voting in medical legalization in 2020) and Alabama whose governor signed medical legalization into law in 2021.
Legalization has been more rapid in politically blue states than in politically red ones. Most start with baby steps. Some have a strict, exclusive-medical medical regime, while others have severely limited access to cannabis. After a number of years, eventually these states become more permissive and expand access.
The two exceptions to this medical-to-recreational progression are South Dakota (which legalized both recreational and medical at the same time with ballot measures on the November 2020 ballot, even though the South Dakota Supreme Court the following year invalidated the adult-use measure) and the American inhabited territory of the Commonwealth of the Northern Mariana Islands that legalized both by legislation signed by the territorial governor in 2018.
Many people who reside in politically red states, and support any degree of cannabis legalization, are often stopped by the very people they elect to appoint to judicial or political positions. As Jessica Piper, a Democratic state representative nominee in Missouri told reporters of the Northwest Missouri news in August 2022, “I wish we could do it legislatively, . . . [that we did not] have to petition our government all the time, but we have to do that because we have a Republican supermajority who doesn’t listen to constituents.”
To date, there are three degrees of cannabis legalization in the U.S. These are the regions in which the following are (state or territorially) legal:
(i) adult-use, 1st degree (reflected in green on the map below),
(ii) multi-condition medical treatment usage, 2nd degree (blue on the map), or
(iii) severely-limited access (SLA) treatment (those places that permit only severely limited medical-use access typically to treat a condition like epilepsy after other treatment modalities have failed), 3rd degree (yellow on map).
The federal prohibition on cannabis is in effect throughout the United States. There are currently 47 states and four U.S. territories that are inhabited. There are four inhabited U.S. states, 47 states, and four territories.
2022 was a year of failures (three) and successes (five) by pro-cannabis advocates seeking progression or development of some degree of cannabis legalization.
Cannabis supporters in some politically red states (to include Ohio and Oklahoma) sought to mirror Rhode Island’s recent “change of status.” Rhode Island became an adult-use state in May 2022 when the state’s governor signed into law a legalization bill.
Oklahoma and Ohio did not move beyond their medically-oriented systems to adult-use status. Nebraska, which does not have any degree of state legalization, is in the same boat. Nebraska was also unable transform itself from a state of total illegality to any degree legality. Each of these three politically-red states was thwarted by their own public officials.
Ohio’s Failure to Legalize in 2022
In Ohio, pro-reform Ohioans gathered the right number of signatures (over 132,000) to place cannabis on the November 2022 ballot. However, Republican state officials refused the November 2022 ballot to legalize marijuana. The case went to court in Ohio.
Republican Ohio state officials prevailed and, pursuant to negotiated settlement, agreed to permit the already gathered voter signatures to be considered for an initiative to be placed on some “future ballot,” but not in 2022.
Oklahoma’s Failure to Legalize in 2022
Like Ohio, Oklahoma’s adult-use advocates had enough signatures to allow recreational marijuana to be placed on the November 2022 ballot. Given previous initiatives, it should have taken no more than three weeks to collect enough signatures to allow adult-use to be placed on the November ballot. But Oklahoma officials, including judges and politicians, were not in hurry. They used an Oklahoma private company which bills itself as a “marketing research” firm to verify the signatures. The contract to verify the signatures was delayed many times by this first-time state vendor. They were compensated $300,000.
The initiative backers sued in state court to compel the state officials to place adult-use legalization before the voters in November.
However, while the Oklahoma Supreme Court agreed that there were sufficient valid signatures, the court said, “No,” to placing it on the ballot this fall.
The state’s highest court unanimously ruled Sept. 21 that Oklahoma’s Election Board must “one day” place the ballot initiative before Oklahoma voters but, that given the delays and the legal proceedings, Oklahoma officials were not required to place it on the upcoming November 2022 ballot.
(Editor’s note: Following publication of this article, Oklahoma Gov. Kevin Stitt ordered a special election be held March 7, 2023, to vote on State Question 820.)
Nebraska’s Failure to Legalize in 2022
Nebraska cannabis legalization advocates have had similar experiences to those in Ohio and Oklahoma with political and judicial officials blocking their use of the state’s ballot initiative process. The Nebraskans for Medical Marijuana, a group of cannabis advocates, have played a multi-year ground race to get legalization on the Nebraskan ballot.
In 2020, Nebraskans for Medical Marijuana gathered and presented over 182,000 signatures to Nebraska state officials in support of an initiative to place medical marijuana on the November 2020 ballot.
Instead of the success they envisioned, the Nebraskans for Medical Marijuana faced a challenge from a Nebraska sheriff (discretely funded by anti-marijuana sources) who filed a lawsuit to stop the 2020 medical marijuana initiative.
The Nebraska Supreme Court, tossed the ballot initiative from the November 2020 ballot on a technicality – – “violation of the single-subject” rule – – for ballot questions. In essence, the court ruled that because each clause of the ballot questions (they identified eight) was an independent, single-subject presented in one ballot question, the initiative had to be removed from the 2020 ballot.
In 2022, Nebraska’s pro-marijuana advocates collected only 77,000 registered voter signatures, falling short by some 10,000 more required for the placement of an initiative on Nebraska’s November 2022 ballot.
FIVE STATES SUCEEDED AND HAVE CANNABIS ON THE NOVEMBER 2022 BALLOT:
The same fate of Ohio, Oklahoma and Nebraska almost befell Arkansas until the Arkansas Supreme Court on September 2022 ruled in favor of keeping Arkansas’ adult-use measure on the November 2022 ballot. Arkansas, a medically legal state since a 2016 ballot initiative, has had many in the state clamoring for recreational access. In 2022, Responsible Growth Arkansas gathered twice the number of required voter signatures for the inclusion on Arkansas’ November 2022 ballot for a measure to amend Arkansas’ constitution to legalize adult-use cannabis production and sales.
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If the constitutional amendment initiative is passed, Arkansas will create a co-existing adult use program, overseen at least initially by the Alcoholic Beverage Control Division, which will draft and implement adult-use regulations. Also, a 10% tax will be imposed on recreational sales.
Polling in mid-September 2022 of Arkansas voters by Talk Business & Politics-Hendrix College survey had 58% for legalization; 29% against and the remainder, 12.5%, undecided. This bodes well for Arkansas’ legalization efforts.
IN ADDITION TO ARKANSAS, VOTERS IN FOUR OTHER STATES ARE VOTING ON EXPANDING FROM MEDICAL-USE TO CO-EXISTING ADULT-USE
Maryland, which legalized medical cannabis through legislation in 2014, will also decide in November 2022 whether to amend its state constitution.
Maryland’s constitutional amendment initiative, Question 4 on the ballot, asks: “Do you favor the legalization of the use of cannabis by an individual who is at least 21years of age on or after July 1, 2023, in the state of Maryland?”
Voting yes would add a new section to Maryland’s constitution, (section “Article XX”) to the existing state constitution and would guarantee a state constitutional right for adults age 21 or older to use recreational marijuana.
Polling from late September 2022 in Maryland shows wide support for the measure with three in four voters inclined to vote yes for adult-recreational legalization.
Missouri has been a medical cannabis state since 2018, when 65% of the people voting in the state voted to amend the Missouri constitution to permit patients to use medical cannabis.
This year, the pro-cannabis advocacy group Legal Missouri 2022 (Legal MO) submitted over 400,000 signatures to election officials in support of placing recreational use on the November 2022 ballot. After local election officials had tossed swathes of signatures (making 2022 cannabis ballot placement unattainable by about 2,500 signatures), Legal MO sought intervention and review by Missouri’s Secretary of State.
Legal MO identified signatures and provided documentation where the group deduced that local election officials had wrongly removed signatures from the validation list.
The Secretary of State re-reviewed some of the local determinations and validated 214,535 voter signatures, (derived from Missouri’s eight congressional districts) thereby satisfying the state’s constitutional-amendment-for-ballot-placement signature threshold. Missouri’s Secretary of State certified the final tally, and the recreational use ballot initiative, Amendment 3, was approved for placement on the November 2022 Missouri midterm ballot.
A SurveyUSA poll from September 2022 shows that the majority of Missouri voters (62%) approve of Amendment 3, personal use of marijuana. With only 22% opposed and the remainder unsure of how they will vote, Missouri’s initiative is likely to succeed.
North Dakota, which legalized medical cannabis in 2016, has adult-use legalization on the ballot next month. New Approach North Dakota (NAND), a North Dakota pro-recreational use advocacy group, gathered and submitted over 26,00 registered voter signatures to North Dakota’s Secretary of State in support of an adult-recreational use initiative.
North Dakota’s Secretary of State confirmed in mid-August 2022 that over 23,000 signatures were verified. Since only 15,582 are required in the state, the adult-use marijuana petition , North Dakota’s 2022 Measure 2, made the cut.
Despite the fact that North Dakota’s Measure 2 will not permit public consumption of marijuana, and driving under the influence will remain illegal and that providing marijuana to minors will remain a state crime and there is no provision for expungements, recreational legalization is no sure thing. Even though, like in practically all state-legalization regimes, North Dakota cities and towns can opt-out of having adult-recreational businesses in their borders, many in North Dakota do not support the legalization measure.
In early October 2022, a North Dakota group with ties to substance abuse counselors, operating as “Healthy and Productive North Dakota,” issued a press release objecting to recreational legalization in the state. “The self-interested marijuana industry is hell bent on taking root in North Dakota, no matter the consequences for public health and public safety.”
NAND, the pro-legalization group, countered with commentary pointing out that “Measure 2 opponents [are] resorting to fear tactics . . . rather than engaging in an intellectually honest debate.” NAND took to its website to confront those against legalization head-on with a screen that states: “Don’t buy into the prohibitionist scare campaign against legalizing marijuana” referring to the anti-cannabis advocates as the “Reefer Madness” crowd.
Recent polling in parts of North Dakota suggests that support for adult recreational legalization is waning.
In November 2020, South Dakota voted to legalize both medical and adult recreational use. But at the urging of politicians, law enforcement, and anti-cannabis supporters, a South Dakota trial court and the state’s highest court, in 2021, invalidated adult-recreational use.
In 2021, the South Dakota Supreme Court held 4-to-1 that the 2020 constitutional amendment ballot language violated the state’s single subject requirement as the measure had provisions concerning adult-recreational use, medical-use and hemp provisions.
This left South Dakota with just medical legalization (which officials still opposed but could not stop, given the state’s short legislative session).
South Dakota advocates for recreational legalization are making another pass at adult-recreational legalization this year. Unlike in 2020, the ballot measure will not be an attempt at modify or add to the state constitution a “voter-approved” amendment. Rather, Measure 27 is “a statutory initiative,” meaning it is voter-driven legislation.
This time, the measure is only two double-spaced pages in length, with six sections for definitions and a disclaimer that adult recreation is not carte blanche for any adult to use cannabis anywhere and at any time.
In 2020, when South Dakota voters first approved the legalization of adult recreational use, they did so with a margin of some 54% for legalization versus to almost 46% against, a difference of about 35,000 votes.
However, two years later, polling in South Dakota (like that of North Dakota) shows a lessening of public support for adult-use legalization.
This past summer, a South Dakota group called Protecting South Dakota’s Kids, registered as a state “political committee” and took aim at South Dakota’s recreational legalization movement. Led by a mental health counselor, who commented on the polling conclusions, the anti-recreation supporter, who has called marijuana supporters “drug pushers” told the local press, “South Dakota is coming to our senses. We’re starting to see that this isn’t going to make us free and happy.”
With South Dakota’s strident anti-cannabis Republican Gov. Kristi Noem up for reelection this November, South Dakotans for marijuana reform are not betting on success. Unless South Dakotans marshal all pro-legalization advocates across the state in this election year, adult-use legalization’s passage chances do not look promising.
Now, in the run-up to November 2022, there are 18 exclusively-medical states, 19 adult-use states with co-existing medical legalization, 10 states with severely limited medical-type access for a restricted oft-single condition medical issue, and three states with total federal illegality (Idaho, Nebraska, and Kansas).
This author predicts that by Wednesday morning, on Nov. 9, election result tallies for the number of states in the adult-use column will increase. Three states will surely be added to the adult recreational use column: Arkansas, Maryland, and Missouri, while adult-use success in North Dakota and South Dakota remain uncertain.
If any of the five states in play on Nov. 8 say “yes” to the ballot and transform themselves from exclusively-medical (2nd-degree) regions to states with co-existing recreational and medical legalization (1st degree), that will still be a remarkable feat.
It was only 10 years ago (almost to the day, in November 2012), when Colorado and Washington had their own ballot initiatives and became the first states in America to legalize adult recreational use.
Ultimately, like dominoes, other states will follow suit. It’s just a matter of time.
Julie Werner-Simon is a law professor (adjunct) at Drexel University’s Kline School of Law, Univ. of Southern California Gould School of Law, legal analyst at Lebow’s School of Business and former federal prosecutor.