Election Night 2020 Could Be Momentous For Cannabis Reform In America

by Andrew Ward

Election Night 2020 will serve as a historic night in cannabis legislation. Several states will see their ballots ask where citizens stand on cannabis, including at least one question regarding the legalization of medical and adult use marijuana. 

Six states will see ballot initiatives included on their ballots. While still a substantial number, the figure was expected to be much larger. However, among many pain points, the COVID-19 pandemic and, in Nebraska’s case, the state Supreme Court presented hurdles that advocates in numerous jurisdictions couldn’t overcome in time. Sam D’Arcangelo, director of the Cannabis Voter Project, told Green Flower how several state efforts fell short due to unique circumstances. 

D’Arcangelo explained, “Cannabis reform activists in Missouri, North Dakota, and Oklahoma called off their efforts due to pandemic-related challenges.” He added, “Nebraska activists were able to overcome similar challenges, but their medical marijuana initiative was removed from the ballot by the state’s Supreme Court for unrelated reasons.”

The setback won’t damper a night that could still see five states advance cannabis access in the United States come November. Many of the ballot initiatives include quirks that could affect how the medical and adult use markets are structured. The following states will see ballot initiatives on Election Day:

  1. South Dakota: In a first in the U.S., South Dakota will include ballot questions for both medical and adult use laws. If both are approved, South Dakota will become the first state to develop simultaneous markets. In this scenario, the state would also become the first adult use marketplace to come online without establishing a medical framework beforehand. 
  2. New Jersey: After several attempts at passing through the state legislature, citizens will now vote on the matter.
  3. Montana: Two adult use ballot questions are to be determined in November. One question addresses legalization, while another would allow the market to recognize adults as 21-year-olds rather than the state-mandated 18 years old.
  4. Arizona: After voters rejected cannabis legalization in 2016, the state once again heads to the polls.
  5. Mississippi: The oft-conservative state has two ballot initiatives concerning medical marijuana. Initiative 65 is an advocate-supported bill establishing the medical market. The other ballot question, Initiative 65A, is supported by conservative lawmakers. Some say it is a bid to confuse voters and limit the medical market. 

In Oregon, a similar measure has citizens determining if the state should decriminalize low-level possession of cocaine, heroin, ecstasy, and methamphetamines.  

D’Arcangelo said that each ballot question presents interest-piquing aspects, noting that Arizona and Montana are notable due to their tight Senate races. “Arizona is interesting because voters narrowly rejected a legalization initiative there in 2016, so that fact is looming large over Prop 207,” he said. 

D’Arcangelo added that other states could produce noteworthy results as well. “Montana and South Dakota are solidly red states, and would be the most conservative states to legalize adult use if their initiatives are approved by voters.” The Cannabis Voter Project director also mentioned that Mississippi and New Jersey could serve as triggers for additional legislation in neighboring states. 

Michael McQueeny, Counsel for Foley Hoag LLP, delved into why his home state of New Jersey could face issues in the form of its ballot. 

McQueeny explained, “The way vote by mail ballots are currently constituted is that the front page [of the ballot] contains the candidates for elected office, and the back page contains the ballot questions.” The possible overlooking on voters’ parts could leave them without a say in the manner. However, the legal expert credited advocates for driving awareness on flipping the ballot over before submitting it. 

Most believe that the majority, if not all, of the ballot questions will pass on Election Night. That said, nothing is certain. “All of them could pass, and it’s likely that at least some of them will,” stated D’Arcangelo, adding, “However, no one should be certain that any of them will.”

What Happens After A Ballot Initiative Passes?

An approved ballot question finds itself facing various paths to implementation. According to Dentons’ Eric Berlin, approved ballot initiatives must go through a similar roadmap to coming online. However, the process can significantly vary in length. 

“State regulators need to draft, and allow comments on rules,” he said. “Then, the application process takes months, and the license awards are usually challenged by lawsuits. Finally, those who win licenses need time to build their facilities, permit inspections, and grow and process the cannabis,” said Berlin. He said the process can take one to several years before legal sales can occur.

D’Arcangelo of the Cannabis Voter Project highlighted examples of various outcomes. “Maine voted to legalize marijuana in 2016 and the legal adult-use marketplace is only just now beginning to come together.”

He added, “On the other end of the spectrum, Oklahoma was able to get its medical marijuana program up and running within a few months in large part because the initiative required the state to do so.”

Where Does The Cannabis Movement Go Post-Election Day?

If every ballot question were to pass, the United States would have 35 states with legalized medical markets. The total would include 15 states and Washington, D.C., to pass adult use laws. A scenario like this could create a domino effect on the state and federal level. 

Dentons’ Berlin delved into the importance of New Jersey’s possible passage. “Most likely, and most important, New York, Pennsylvania, and Connecticut will follow New Jersey with legalizing adult use.” He predicts that close to 40 states could legalize marijuana laws by 2022. If so, and the liberal-leaning Democrats regain federal legislative power, Berlin said that federal legalization could come in the next one to three years. 

D’Arcangelo said the results of 2020 alone could sway lawmakers, as a growing number of the population gains legal access. “A situation like that will probably increase the pressure to get something done at the federal level,” he posited. Like Berlin, D’Arcangelo is also concerned about the power in Congress, nothing that a shift toward the Democrats could also see the passage of pivotal pieces of legislation like the MORE Act or other noteworthy pieces of marijuana legislation. 

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