Every cannabis-related ballot initiative put in front of voters in 2020 passed with relative ease.
Arizona, Montana, and New Jersey voters approved statewide measures to legalize adult-use marijuana, residents in Mississippi passed legislation to legalize medical marijuana, and South Dakota voters approved initiatives for both adult-use and medical marijuana in a historic victory for cannabis law reform. In the following months, more states – including New York, New Mexico and Virginia – have gone on to approve adult-use marijuana bills by way of their state legislatures.
However, this massive shift toward a future with legal cannabis isn’t coming without resistance, as lawmakers in GOP-controlled states continue attempts to block or diminish measures approved by their constituents.
Medical Marijuana in Mississippi Shut Down by Supreme Court
Initiative Measure 65, a citizen-led ballot measure to legalize medical marijuana, was approved by Mississippi voters back in November – but not without struggle. Just eight months before, Republican lawmakers voted to place a competing measure, Initiative Measure 65A, on the November ballot as well.
In order for medical marijuana to be legalized, Mississippi voters had to jump through mental hoops, first answering a convoluted question determining whether or not they wanted “either measure” or “neither measure” to pass. Then, regardless of their answer to the first question, voters would have to answer if they supported Initiative 65, the activist-driven measure with a clear and credible framework for a medical marijuana program – or Initiative Measure 65A, the legislature-sponsored alternative that would limit marijuana consumption to terminally-ill patients and leave many other details to be decided later on by lawmakers.
|Provision||Initiative Measure 65||Initiative Measure 65A|
|Qualifying Conditions||22 Conditions Specified||Not Specified|
|Possession Limits||2.5 Ounces||Not Specified|
|Taxation||State Sales Tax (7%)||Not Specified|
Many advocates for marijuana legalization thought the inclusion of Initiative Measure 65A was a purposeful tactic by Mississippi lawmakers to confuse voters.
Jamie Grantham, the Communications Director for Mississippians for Compassionate Care, argued that the Mississippi State Legislature, “blocked more than 20 proposed bills over the last few decades. . . and then as soon as Initiative 65 [qualified], they put 65A on the ballot in order to confuse voters and dilute the vote so that neither measure [would] meet the required amount of votes to pass.”
Despite any confusion, 68% of Mississippi voters elected to approve “either measure,” and 73% of voters followed up by approving Initiative 65. It was a momentous victory for cannabis advocates in Mississippi, but the celebration was short-lived.
Earlier this month, the Mississippi Supreme Court killed the citizen-driven and voter-approved medical marijuana measure, concluding that the proposal was void due to the state’s outdated ballot initiative process.
The Mississippi Constitution requires initiative organizers to gather signatures from five congressional districts in order to get on the ballot – despite Mississippi only actually having four districts since the 2000 Census. The language in the constitution was never updated to account for the restructuring, leading the Supreme Court to use the outdated text to shut down plans for a medical marijuana program.
“It was not how I felt the decision would go,” said Ken Newburger, the Director of Field Outreach for Initiative 65, in the aftermath of the Supreme Court’s decision. “I didn’t even conceive of it because after the overwhelming support that we had last year – I didn’t think the court would throw out an election.”
Since Initiative 65 was overturned on May 14, hundreds have protested the Mississippi Supreme Court’s decision, organizing as a group called ‘We are the 74’ – representing the 74% of Mississippi voters that helped pass Initiative 65 back in November.
“We want the people’s will to be upheld,” said Donnie Collins, a member of the protest group. “People have spoken on these initiative processes; we want them upheld. We want Initiative 65 upheld.”
Florida Cannabis Legalization Efforts Blocked Early
For the past year, Make It Legal Florida has been working to gather the signatures needed to put the Florida Marijuana Legalization Initiative in front of voters on November 8, 2022.
The proposed constitutional amendment would permit, “adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason,” allowing the state of Florida to regulate and license a legal marijuana market.
The campaign had already collected over 550,000 signatures and $8.2 million worth of funding when the Florida Supreme Court ruled the proposed ballot initiative as “misleading,” sending any legalization efforts back to square one.
The Supreme Court’s primary concern was the use of the word “permit” in the proposal’s ballot summary. Justices argued that the language didn’t properly convey, despite the potential of legal marijuana in Florida, that cannabis would remain illegal federally.
“A constitutional amendment cannot unequivocally ‘permit’ or authorize conduct that is criminalized under federal law,” wrote Chief Justice Charles Candy. “A ballot summary suggesting otherwise is affirmatively misleading.”
The issue with the court’s ruling lies in the fact that, according to Florida law, ballot summaries of proposed constitutional amendments can’t be longer than 75 words. By that standard, Make It Legal Florida would somehow have to summarize the content of the initiative along with the federal impact of the proposal – all within a paragraph or two.
“I almost gagged reading [the decision],” said Juan-Carlos Planas, a Miami attorney who specializes in constitutional ballot language. “I don’t care about the marijuana, per se. My issue is, how the hell do you craft a constitutional amendment now?”
That’s the question facing campaign leaders at Make It Legal Florida, who will need to redraft the proposal and start from scratch with signature collecting to have any hope of putting a constitutional ballot initiative in front of voters come 2022.
“It’s unfortunate because I think Floridians would legalize marijuana for adult use tomorrow if given the opportunity,” said Ben Pollara, a political consultant involved with Florida’s 2016 medical marijuana ballot initiative. “But the reality is that with this decision . . . the chances of seeing something on the 2022 ballot are basically zero. And the chances of seeing something on a future ballot are also pretty damn close to zero.”
Marijuana Legalization Deemed Unconstitutional in South Dakota
In the 2020 election, South Dakota voters passed Initiated Measure 26 and Constitutional Amendment A – making South Dakota the first state to go from marijuana prohibition to full legalization in one fell swoop.
Despite South Dakota Governor Kristi Noem participating in a campaign that opposed Constitutional Amendment A, over 225,000 South Dakotans – nearly 55% of the total vote – approved the adult-use marijuana legalization initiative. The approved measure would legalize adult-use marijuana for individuals aged 21 years and older, creating a legal cannabis market with sales taxed at 15%. Once implementation costs were covered, 50% of marijuana tax revenue would be allocated to public school funding and 50% would be directed to South Dakota’s general fund.
Then, less than a month following the vote, South Dakota Highway Patrol Superintendent Rick Miller filed a lawsuit seeking to invalidate Constitutional Amendment A and the will of the voters. It was later revealed that he did so under the direction of Governor Noem.
The lawsuit alleged that the ballot initiative addressed more than a single subject and had, “far-reaching effects on the basic nature of South Dakota’s governmental system.”
Miller argued that Constitutional Amendment A didn’t act as an amendment, but rather as a revision to the constitution – requiring a constitutional convention called for by a vote of both the South Dakota House and Senate. Sixth Circuit Judge Christina Klinger, who was appointed to her position by Governor Noem back in 2019, sided with Miller and declared the measure invalid.
Advocacy groups South Dakotans for Better Laws and New Approach South Dakota quickly appealed to the state’s Supreme Court, where representation for the groups warned of the, “damage that could be done if, for the first time in [South Dakota] history, we have a court that literally throws out 417,000 votes that were cast on a piece of legislation.”
The GOP-controlled Supreme Court heard final arguments for the case at the end of April and has yet to provide a ruling. The threat of yet another citizen-driven ballot initiative being discarded by state officials has pro-cannabis advocates throughout the U.S. noticing a worrisome trend.
“The anti-ballot initiative assault we’re seeing across the country right now is a reaction to not only cannabis reform. But also minimum wage efforts, Medicaid expansion, and other progressive issues these legislators don’t like,” said Matthew Schweich, Deputy Director of the Marijuana Policy Project. “They want to retain control. They want to take power back.”
Lawmakers in Montana echo the anti-ballot measure sentiments seen in Mississippi, Florida, and South Dakota legislatures – adding THC potency limits and overhauling the allocation of tax revenue on the adult-use marijuana measure passed by voters last year.
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