Experts say efforts to crack down on voter-approved marijuana legalization in Mississippi, Montana and South Dakota reflect new legal strategies and a greater willingness by local authorities to overturn election results.
These efforts, led by politicians and other opponents of marijuana, threaten to halt or delay the establishment of new markets for medicinal and recreational cannabis that will generate hundreds of millions of dollars annually.
In Idaho, some legislators are even trying to ban marijuana legalization in advance by amending the state’s constitution.
Challenging ballot initiatives, especially in conservative states, could cost more in the future. They can also discourage new, voter-oriented policies.
Industry leaders hope that public opinion will ultimately prevail: The vote on marijuana in the third grade. In November, five states showed that Americans strongly support legal marijuana, even in the most conservative states.
We have to recognize that we are in red territory, and that is part of it, said Matt Schweich, deputy director of the Marijuana Policy Project (MPP), about the recent lawsuits. The MPP ran election campaigns in Montana and South Dakota.
At the same time, we live in a time when democratic norms are under threat. Politicians no longer feel obliged to support the vote.
Paul Armentano, deputy director of NORML in Washington, D.C., noted that in the past, when there have been legal challenges, they have generally preceded the receipt of marijuana on the ballot.
For example, the Secretary of State may reject the language of an initiative or the number of valid signatures.
Moreover, Armentano said, marijuana officials have had enough influence in the past to control the message and encourage voters to reject the initiatives.
But it is a relatively new phenomenon, he said, to have such problems after a vote and to cancel a successful vote.
He agreed that changing political norms could be a factor.
Of course, (former President) Trump has determined that you can lose the election and still pretend to be different, Armentano said.
Of course, it’s a play that’s been shown to the whole world.
But even before the November election, there was a reluctance in some states to go against the will of the people.
For example, the former governor of Maine. Paul LePage kept the state from introducing adult legalization for a few years.
And recently, the Utah legislature approved a much more limited medical cannabis program than the voter-approved ballot initiative called for.
In a landmark decision, the Utah Supreme Court ruled that the governor and legislature had the right to approve a more restrictive program, and DOJ attorneys decided not to file a second lawsuit.
Tasks based on a single-subject rule
Legal strategies have clearly changed.
The Nebraska Supreme Court in November rejected a medical marijuana initiative that predated the Third Circuit, saying it would violate the state’s One-Stop-Shopping rule. This rule combines several questions into one yes or no question.
Mr. Armentano noted that many states, including Colorado, have uniform rules and this is not a problem.
The electoral system is set up so, he said, that state officials can review and approve the language of the initiative before the election, so there are no incidents after the judge has ruled and said your vote doesn’t matter.
But the single-purpose rule became the model for South Dakota Governor Christie Noem, who sought to undo the state’s voter-approved adult initiative.
In South Dakota, medical marijuana has gone from a majority of 68% to 32%. The surprise was recreational marijuana: It has gone from a 54% margin to 46%.
After the election, Noem, a Republican and fierce opponent of marijuana, took the stage.
He directed a state highway police officer to take legal action against a recreational marijuana initiative, largely on the grounds that the initiative violated a uniform rule.
A district judge recently agreed that the initiative is unconstitutional, and South Dakotans for Better Marijuana Laws, which supported the initiative, is now preparing to appeal to the state Supreme Court.
I cannot imagine our opponents not pursuing similar goals, regardless of the language of the initiative, Mr. Armentano said. It would be a standard part of the play.
Noem didn’t stop there. It also decided to postpone the initiative on medical cannabis, which was so strongly supported by voters.
Gov. Noem has no respect for the will of the people, Schweich said. I have yet to see an initiative to medically treat marijuana in this way.
Schweich said he thinks Noem’s decision is a plan to repeal and permanently replace the voter-approved initiative.
In Mississippi, Armentano says, a constitutional challenge to voter-approved medical marijuana is particularly egregious.
The lawsuit, filed by a state official, argues that the medical marijuana initiative should be declared invalid because it does not meet the state standard that requires an equal number of signatures from five former Mississippi congressional districts. The state lost the congressional district after the 2000 census.
According to Armentano, this challenge, which will be heard by the state Supreme Court in April, is based on a technical approach to signature gathering that has derailed all initiatives of the past two decades.
So it’s clear that Mississippi is selective (against marijuana), he said.
Despite the objections of many lawmakers and government officials to the legalization of marijuana, the National Health Council is moving ahead with the regulation of July.
Then there’s Idaho, where the state Senate recently passed a constitutional amendment banning the legalization of all psychoactive drugs, including marijuana. The bill will now go through the House of Representatives.
Schweich called this legislative attempt to permanently block the legalization of the DOJ an obscene power grab.
Montana’s moving forward
Montana, which also faced legal challenges with its voter-approved recreational marijuana initiative, shows the importance of the governor’s commitment to supporting voters.
It seemed erratic when lawmakers turned down a request for a $1.35 million budget to fund the state’s recreational cannabis program.
But the Montana Department of Revenue has set up a website for adult marijuana use and says the state will proceed as planned on the 1st. Permit applications begin in the month of October.
So far, the implementation is going well, Schweich said. There is some filibustering by legislators, but not by the governor.
In fact, Montana’s Republican governor in his recent state of the state speech. Greg Gianforte spoke about using tax revenue from recreational marijuana to help fund a program to combat addiction to methamphetamine and opiates.
According to Mr. Armentano, a new guide aimed at denouncing initiatives will have a negative effect on the willingness of donors and funders to support them.
Historically, battles are fought before elections, and that will certainly increase the overall cost and resources not only to win these campaigns, but also to ensure that the law is effectively enforced, he said.
But there is also a positive side: public support for legalization will make it increasingly difficult for governors and legislators to ignore the will of their constituents.
In a sense, Armentano said, the current effort is a sort of Hail Mary, a last-minute attempt to prevent the legalization of marijuana.
Jeff Smith can be reached at [email protected].
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