Elections 2022: Cannabis Ballot Measures

By Vince Sliwoski, Attorney @ Harris Bricken

Election season is coming. This means that cannabis ballot measures, initiatives, initiated proposals, legislative proposals, etc. are moving to the fore.

I won’t set out to explain the differences among the several state protocols. You’d leave. In the cannabis context, suffice it to say that “ballot measures” are somehow convoluted and dramatic all at once. Most years, we have a bunch of them scattered nationwide.

This blog post explains what various, alphabetically-ordered states may get up to this November. Please note that I won’t canvas the local proposals, other than to point out where a city or county may be allowed to opt out of a new state program. But first:

A word on cannabis ballot measures

I’m a little sour on late-stage cannabis ballot measures. One reason is that most of the 21 states that allow citizen-initiated ballot initiatives already have made their runs at cannabis. What’s left is less impactful change in trailing jurisdictions. A second reason is that many cannabis initiatives are poorly designed, often due questionable motives (e.g. brought by for-profit actors, or to forestall meaningful reform). A third reason, and perhaps most significant, is the recent, anti-democratic spate of wins enjoyed by prohibitionist officials and special interest groups. These parties have templatized overturning successful cannabis (and other progressive initiative) votes via obscure “process”-type challenges. (See: “Cannabis Ballot Measures are a Sucker’s Game: Notes from South Dakota, Mississippi, Nebraska and Florida”). This sinister development, in turn, has placed constraints on what certain initiative sponsors even set out to achieve (see South Dakota, infra).

Despite it all, organizers continue to push forward. Some of the cannabis initiatives are on track for November votes, and some will find voter approval. You have to tip your hat. What happens once courts and legislatures get ahold of them –  before November or after the fact –  is anybody’s guess.

Arkansas

This one is a proposed state constitutional amendment that would allow adults 21 and older to purchase and possess up to an ounce of cannabis. No home grow; no expungement. All in all, a pretty lackluster effort. It’s getting the business regardless.

Here’s what happened: Organizers submitted 190,000 signatures to place the amendment on the November ballot. This was 100,000 signatures more than needed, and state officials verified the threshold was met. However, a few days later, the Board of Elections Commissioners denied the proposed ballot title. The Board rejected the measure as misleading and possibly confusing to voters.

Arkansas advocates sued, and they ended up with a half a loaf. The Court ruled that the Board must place the amendment on the ballot, but votes may not actually count (!). Marijuana Moment published a pretty good play-by-play a few weeks ago on what happens next in this imbroglio.

Maryland

Here we have another proposed constitutional amendment (HB 1), along with complementary legislative dressing (HB 837). The former provision simply asks voters if they “favor the legalization of adult-use cannabis in the State of Maryland.” The answer will be “yes”, consistent with most places nowadays.

Once HB 1 clears, HB 837 should take effect, allowing adults to possess up to 1.5 ounces of cannabis and/or 12 grams of cannabis concentrates as of July 2023. Unfortunately, possession of amounts between 1.5 and 2.5 ounces would trigger civil fines, and possession of more than that implicates criminal penalties.

This is not the most inspiring effort, but it has a clearer path than Arkansas. At some point, Maryland lawmakers would still need to enact further legislation to govern the legally regulated cannabis market. I’m sure they’d get there.

Missouri

Missouri has been futzing around with cannabis forever. (See our coverage of 2016 and 2018 efforts here and here). The most recent push, after barely clearing signature requirements, is to allow those 21 years and up to possess, purchase, consume and cultivate cannabis, while automatically expunging nonviolent cannabis-related offenses and clearing criminal records. There is a modest 6% statewide tax at retail. Not too shabby!

The omnibus measure would also expand industry participation to include small businesses and disadvantaged populations. And it would make certain improvements to the Missouri Medical Marijuana Program which appears to need some attention. This one does come with a lottery (not a fan) and cumbersome local control provisions (cities and counties can opt out). It’s not perfect, but it’s a cut above the rest.

Nebraska

Breaking news, and I’m sorry to relay it. This effort, which was already besieged with complications (including litigation) barely missed the signature threshold according to an official announcement yesterday, August 22. So nothing will be happening this fall in Nebraska, unfortunately.

North Dakota

I mentioned last week that we will see a North Dakota ballot measure this November. This one will legalize the adult use and sale of cannabis. It’s going to be one ounce in possession and three plants at home. (I’m guessing that squares, but I’m not sure how.) The measure also creates a system for licensing retail stores, product manufacturers, labs, etc. And it directs regulators to make rules for sales to commence October 1, 2023. Good luck guys!

Oklahoma

It’s fun to see Nebraska and Oklahoma on this list. Seven years ago, these states were terribly offended by Colorado legalization, filed suit in the U.S. Supreme Court and lost. These days, everyone and their mother is now growing medical marijuana in Oklahoma, and the state seems set for more. Life comes at you pretty fast.

Anyway, SQ 820 would allow adults 21 and older to purchase and possess up to one ounce of cannabis. Oklahomans would also be able to grow up to six mature plants and six seedlings for personal use. There are pathways for the resentencing and expunging criminal records, but nothing automatic unfortunately.

Assuming petitioners meet the signature requirements, it’s hard to know how this one will shake out. Republican Governor Kevin Stitt has claimed that voters were tricked into approving medical cannabis a few years back; then he signed a law limiting licenses. To the good, he has stated he would respect any vote for adult-use legalization. Let’s see.

South Dakota

The South Dakota governor has no respect for votes to legalize cannabis. Republican Governor Kristi Noem and her judicial appointee succeeded in throwing out the last successful voter initiative, so sponsors are at it again.

Initiated Measure 27 would allow adults to possess up to one ounce of cannabis, and provides for home grow up to three plants per person (with a cap at six per residence). The measure does not seek to establish a regulatory framework for the licensed production and retail sale of marijuana. It also lacks expungement or restorative justice provisions. Overall this is a constrained effort compared to what voters previously approved in the state. South Dakotans will likely approve it, and then the fun begins.

Re-published with the permission of Harris Bricken and The Canna Law Blog

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