In November 2016, nine statewide marijuana ballot initiatives went before voters, and eight were approved.
In 2018, voters in a number of additional states are likely to see cannabis questions when they go to their polling places.
Here’s an in-depth look at those states that have the best chance of qualifying marijuana initiatives, followed by some brief info on a few that seem like longer shots…
(Note: Additional states that don’t allow voter initiatives or referenda could see legalization or medical cannabis measures approved by legislatures. A future post will examine those opportunities.)
The Michigan Regulation and Taxation of Marihuana Act would allow adults over 21 to possess, grow and use small amounts of marijuana legally.
Specifically, they could grow up to 12 total marijuana plants in a single residence, possess 2.5 ounces outside their homes and store 10 ounces at home (in addition to what they grow legally).
State regulators would grant business licenses for cultivators, processors, testing facilities, secure transporters, retail stores and microbusinesses (i.e. small businesses cultivating a low number of plants from which they would sell product directly to consumers).
Municipalities would be empowered to regulate or ban cannabis businesses.
Retail sales would be subject to a 10 percent excise tax in addition to the state’s regular six percent sales tax. Revenues would cover the cost of regulation and additionally fund schools, roads, local governments and FDA-approved research on medical marijuana’s role in helping military veterans struggling with PTSD and other conditions.
Path to ballot: Organizers need to collect 252,523 valid signatures from registered voters to qualify the measure but, because voters sometimes sign petitions incorrectly and signatures are disqualified, organizers turned in more than 360,000 in late November. State officials will now verify that a sufficient number are valid.
Who is behind the campaign: The Coalition to Regulate Marijuana Like Alcohol is organized by Washington, D.C.-based Marijuana Policy Project (MPP), which has spearheaded many previously successful cannabis initiatives. MPP worked to garner buy-in for the effort from grassroots activists with MI Legalize who narrowly failed to qualify a legalization measure for the state’s 2016 ballot.
Polling: Several surveys have shown majority support for legalization, including one this May that found likely voters back ending prohibition by a margin of 58 percent to 36 percent.
Another Michigan measure: A second legalization campaign is also collecting signatures but the team behind it doesn’t appear to have the funding it will likely take to qualify their measure for the ballot.
A proposed constitutional amendment would allow doctors to recommend medical cannabis for any condition.
Qualified patients, after getting physician approval, would receive identification cards from the state that last for one year, subject to renewal. Patients and their primary caregivers would be allowed to cultivate up to six marijuana plants and purchase at least four ounces of cannabis from dispensaries on a monthly basis.
The state would issue licenses for medical cannabis cultivation, testing, infused products manufacturing and dispensing businesses.
The measure sets up a four percent retail tax on medical cannabis sales, with all revenue going toward services for military veterans after implementation and regulations costs are covered.
Path to ballot: Organizers need to collect 160,199 valid signatures from registered voters to qualify the measure. As of late September, the campaign had collected nearly 75,000 raw signatures.
Who is behind the campaign: New Approach Missouri is working to put the measure before voters. The organization narrowly failed to qualify a similar measure for 2016’s ballot.
Polling: A number of polls have found majority support for medical cannabis, including a July 2016 survey showing voters favored an earlier proposed ballot measure by a margin of 62 percent to 27 percent.
Other Missouri Measures: A second medical cannabis constitutional initiative being organized by physician, lawyer and former lieutenant governor candidate Brad Bradshaw appears that it may qualify as well. His campaign says that it has already collected nearly 150,000 signatures. A third measure, a statutory one involving former House Speaker Steve Tilley, is also in play. And there are also a number of other competing marijuana initiatives seeking ballot access, including several that would legalize recreational marijuana in addition to medical cannabis, but there is no indication that these measures have enough funding to qualify.
A proposed statutory initiative would allow would allow doctors to recommend medical cannabis for any condition.
Qualified patients, after getting physician approval, would receive identification cards from the state, and would be allowed to possess three ounces of marijuana on their person and eight ounces at home. They could also cultivate six mature plants and six seedlings. And they would be allowed to possess one ounce of cannabis concentrates and 72 ounces of marijuana edibles.
Homebound patients could designate a caregiver who could purchase, grow or possess marijuana for them.
People who are caught with 1.5 ounces or less of cannabis and who don’t have medical marijuana cards but can state a medical condition would be met with misdemeanor offenses punishable by no more than a $400 fine.
The state would issue licenses for medical cannabis cultivation, processing, transportation and dispensing businesses.
A seven percent retail tax on medical cannabis sales would be levied. After covering implementation and regulation costs, additional revenue would fund education and drug and alcohol rehabilitation programs.
Path to ballot: The measure has already qualified. There was a chance it could have appeared before voters in 2016 but, because a dispute over the measure’s official ballot title with then-Attorney General Scott Pruitt (now U.S. Environmental Protection Agency administrator) was not resolved by the state Supreme Court in time, its consideration was delayed until the next election. It is expected that the measure will go before voters in November, but there is a chance it could be moved to the June primary ballot instead.
Who is behind the campaign: Oklahomans for Health qualified the measure and is running the campaign to pass it.
Polling: A 2013 poll found that 71 percent of the state’s likely voters support medical cannabis.
The Utah Medical Cannabis Act would allow doctors to recommend medical marijuana to patients with cancer, HIV/AIDS, multiple sclerosis, PTSD, chronic pain and other specifically enumerated conditions.
Qualified patients, after getting physician approval, would be issued state identification cards and be allowed to purchase two ounces of cannabis or products containing 10 grams of cannabidiol or tetrahydrocannabinol from a dispensary during any 14-day period. Patients who do not live within 100 miles of a dispensary would be allowed to grow six plants. The measure would create an affirmative defense that could be used by patients before identification cards become available.
Smoking medical cannabis would not be allowed. Patients could designate caregivers who would help grow, obtain and administer cannabis.
The state would issue licenses for medical cannabis cultivation, processing, testing and dispensing businesses.
Municipalities would be allowed to regulate, but not ban, marijuana businesses.
Medical cannabis would be exempt from sales taxes. Revenues generated by licensing fees are expected to offset implementation and regulation costs.
Path to ballot: Organizers need to collect 113,143 valid signatures from registered voters to qualify the measure. As of October, they had turned in roughly 20,000 signatures.
Who is behind the campaign: The Utah Patients Coalition is the driving force behind the measure, and is primarily funded by the Marijuana Policy Project.
Polling: Numerous polls have shown strong majority support for medical cannabis. An October Salt Lake Tribune survey found that 75 percent of the state’s registered voters back medical marijuana.
Commonwealth of the Northern Mariana Islands: Lawmakers in the U.S territory are considering legislation that would place a measure legalizing marijuana and allowing medical cannabis before voters in 2018.
Maryland: State legislators are considering putting a marijuana referendum on the ballot so that voters can decide to enact legalization.
Rhode Island: Some lawmakers in the state have in years past floated the idea of placing a nonbinding legalization referendum on the state ballot so that voters could weigh in on the issue. Activists prefer for the legislature to simply pass a bill to end prohibition, but if that doesn’t seem possible as the 2018 session goes on, they may pursue the referendum approach. If a referendum were to pass, lawmakers would likely feel increased pressure to enact a bill in 2019.
South Dakota: Activists with New Approach South Dakota are circulating petitions for two ballot measures: One to allow medical cannabis and one to legalize recreational marijuana.
Photo courtesy of Democracy Chronicles.
Top GOP Senator’s Bill Lets DC Legalize Marijuana Sales
Washington, D.C. would finally be allowed to legalize marijuana sales under a new bill authored by a powerful Republican senator.
Voters in the nation’s capital approved a ballot initiative that legalized cannabis possession and home cultivation in 2014. But under a current annual budget rider, the city is not allowed to spend its own money setting up a legal regulatory system for marijuana sales. As such, the city can’t earn tax revenue on recreational marijuana like Colorado and seven other states that have ended prohibition are.
That would change under legislation released on Monday by Sen. Thad Cochran (R-MS), chairman of the powerful Appropriations Committee.
The new bill, which funds various federal agencies and concerns appropriations covering the District of Columbia government, is totally silent on the matter of D.C. marijuana sales. That means that if its language is enacted as part of a Fiscal Year 2018 spending agreement, the ban in current law will disappear.
But, unfortunately for marijuana legalization advocates, it’s not that easy. The version of 2018 spending legislation approved by the House in September not only continues the current ban but actually broadens its language to close a potential loophole that advocates had urged D.C. officials to pursue in order to fund regulation of legal cannabis sales.
As a result, if the language in the new bill released by Cochran on Monday is approved by the Senate, the differences will need to be reconciled by a conference committee made up of a handful of members from either chamber. And at that stage, behind closed doors, anything could happen.
In 2015, Cochran made a similar move by excluding the D.C marijuana sales ban language in a chairman’s mark. But the House-passed ban was included in that year’s version of final spending legislation anyway.
New Sessions Memo: Does It Impact Marijuana?
Cannabis industry insiders are wondering how a new memo issued late last week by U.S. Attorney General Jeff Sessions could impact marijuana enforcement.
Under an Obama-era directive to federal prosecutors that Sessions himself recently said remains in effect, states can generally implement their own cannabis law without much federal interference, as long as they abide by certain guidelines set out by the Department of Justice.
But in a new document released on Friday, Sessions is asking Associate Attorney General Rachel Brand to review existing department guidance that “effectively bind[s] private parties without undergoing the rulemaking process.”
It’s unclear whether the new move puts the so-called “Cole memo” (named for the then-deputy U.S. attorney general who authored it in 2013) at risk.
“Guidance documents can be used to explain existing law,” Brand said in a press release issued along with Sessions’s new memo. “But they should not be used to change the law or to impose new standards to determine compliance with the law… This Department of Justice will not use guidance documents to circumvent the rulemaking process, and we will proactively work to rescind existing guidance documents that go too far.”
Could that apply to the Cole memo, which some critics have viewed as an inappropriate unilateral workaround of federal prohibition without actually changing federal law?
On the one hand, the new Sessions directive seems mostly aimed at preventing federal agencies from issuing memos that directly tell entities outside the government what to do, rather than internal guidance about how Justice Department personnel should enforce the law.
The new memo “does not address documents informing the public of the Department’s enforcement priorities or factors the Department considers in exercising its prosecutorial discretion,” Sessions writes. “Nor does it address internal directives, memoranda, or training materials for Department personnel directing them on how to carry out their duties…”
But the wording of a few provisions of Sessions’s new directive seems to leave its potential effects for the Cole memo within reach.
“To the extent guidance documents set out voluntary standards (e.g., recommended practices), they should clearly state that compliance with those standards is voluntary and that noncompliance will not, in itself, result in any enforcement action,” one of its bullet points reads.
The Cole memo says states that don’t effectively prevent impaired driving, youth access to cannabis or interstate diversion of marijuana, among other criteria, are at risk of federal interference.
While the directive was addressed to federal prosecutors, its language sends a clear warning to local officials that they’d better follow the letter of the memo lest they be invited to federal court by the Department of Justice.
“The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems,” it read.
“Jurisdictions that have implemented systems that provide for regulation of marijuana activity must provide the necessary resources and demonstrate the willingness to enforce their law and regulations in a manner that ensures they do not undermine federal enforcement priorities,” Cole warned. “If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.”
That passage could also implicate two other bullet points in Sessions’s new directive.
- “Guidance documents should not be used for the purpose of coercing persons or entities outside the federal government into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or regulation.”
- “Guidance documents should not use mandatory language such as ‘shall,’ ‘must,’
‘required,’ or ‘requirement’ to direct parties outside the federal government to take or
refrain from taking action, except when restating—with citations to statutes, regulations,
or binding judicial precedent—clear mandates contained in a statute or regulation.”
There is nothing in the Controlled Substances Act or any other federal law that requires states to enact or spend resources to enforce bans on cannabis use or distribution.
The Drug Enforcement Administration remains free to go after people for violating federal marijuana prohibition regardless of state law, but federal authorities cannot force local officials to assist them in those actions.
But an argument could be made that the not-strictly-binding Cole memo effectively “coerces” them into doing so by making federal cannabis actions contingent on local officials’ efforts to cut down on certain federal enforcement priority areas.
It is unclear if Sessions intends for the new memo to flag the Obama-era marijuana policy, but that could be one implication of a process that will not take place outside of his office.
“I direct the Associate Attorney General, as Chair of the Department’s Regulatory Reform Task Force, to work with components to identify existing guidance documents that should be repealed, replaced, or modified in light of these principles,” Sessions writes in the new document.
Of course, as attorney general, Sessions could rescind the Cole memo himself at any time, or direct a subordinate to replace it with a new policy. He doesn’t need the new review process created by Friday’s document to justify its deletion.
But by directing Brand to lead a review of existing guidance, Sessions could put a layer of political insulation between himself and an eventual flagging and rescinding of Obama-era cannabis enforcement policy that remains popular among voters and lawmakers of both parties.
Last week, Sessions testified at a House hearing that the Trump administration’s cannabis policy “is the same, really, fundamentally as the Holder-Lynch policy, which is that the federal law remains in effect and a state can legalize marijuana for its law enforcement purposes but it still remains illegal with regard to federal purposes.”
On the campaign trail, then-candidate Donald Trump repeatedly pledged to respect state marijuana laws.
But in April, Sessions directed a Justice Department task force to review the Obama administration memo and make recommendations for possible changes.
However, that panel did not provide Sessions with any ammunition to support a crackdown on states, according to the Associated Press, which reviewed excerpts of the task force’s report to the attorney general.
It remains to be seen whether the Cole memo will be flagged during the new review.
Republicans Block Marijuana Banking Measure
Republican congressional leadership is blocking consideration of a measure to allow marijuana businesses to deposit their profits in banks.
Many financial institutions are currently afraid to serve cannabis businesses that are legal in a growing number of states because of ongoing federal prohibition and the associated risk of running afoul of money laundering and drug laws.
As a result, many marijuana growing, processing and retail operations carry out business on a cash-only basis, making them targets for robberies.
Congressman Ed Perlmutter (D-CO) wants to solve this problem. Last Wednesday, at a meeting of the House Financial Services Committee, he offered an amendment that would have prevented federal authorities for punishing banks just for working with legal marijuana businesses.
“The regulatory confusion around marijuana and banking needs to be resolved,” Perlmutter said during the markup. “Prohibition is over. This committee has a responsibility to align the laws of the United States with those of the states so that there isn’t confusion. Public safety is at risk.”
Perlmutter referred to the case of an Iraq War veteran who was killed during a robbery while working as a security guard at a marijuana retail operation in Colorado.
“This is a real issue that this committee must deal with and confront and cannot overlook any more,” he said.
“I don’t think there’s a single person on this committee that is in a state that doesn’t allow some level of marijuana use,” Perlmutter noted, referring to the 46 states that either have comprehensive medical cannabis laws or allow limited uses of low-THC marijuana extracts.
Nonetheless, Republicans on the committee used procedural moves to block the banking measure from even being voted on.
Congressman Blaine Luetkemeyer (R-MO) reserved a point of order against the measure, claiming it was not germane to the overall bill on stress testing for financial institutions. (As an aside, the GOP lawmaker did mention that his daughter resides in Colorado and that they talk about marijuana issues “a lot”).
Committee Chairman Jeb Hensarling (R-TX) ruled to uphold Luetkemeyer’s point or order. Perlmutter then made a motion to appeal the ruling of the chair, but Luetkemeyer motioned to table consideration of Perlmutter’s move.
Congresswoman Maxine Waters (D-CA) spoke in support of Perlmutter’s amendment.
“Someday we will realize that this is a federal issue that must be dealt with,” she said.
Congressman David Scott (D-GA) also argued that the panel needs to address the cannabis banking issue at some point.
“If…his amendment is not germane, I still believe that this whole burgeoning issue certainly falls in the bosom of the Financial Services Committee as we move forward,” he said.
But the vote on Luetkemeyer’s motion was approved on a strictly party-line vote of 28 to 14, effectively blocking the cannabis banking measure from being considered.
This week, I tried yet again to offer a solution to the marijuana banking crisis. Unfortunately, my amendment was not included in the final bill. This is an issue of public safety and I will continue to press the issue at every opportunity.https://t.co/0xUJB1srDy
— Rep. Ed Perlmutter (@RepPerlmutter) November 18, 2017
In 2014, the Obama administration released guidance intended to give banks some comfort in working with the marijuana industry. But, because the memos provided no permanent or assured protection from continuing federal prohibition laws that remain on the books, many financial services providers have remained wary.
Also in 2014, the U.S. House voted 231 to 192 in favor of an amendment to prevent federal authorities from punishing banks for working with the legal marijuana industry. But the language was not included in the final version of annual appropriations legislation that year and was not enacted into law. GOP leaders have since blocked similar measures from even being considered for attachment to subsequent spending bills.
The new banking measure’s fate marks the second time in recent days that House Republican leaders have prevented cannabis-related financial measures from even being voted on.
Also last week, GOP leaders blocked consideration of amendments concerning taxation of marijuana businesses that supporters wanted to attached a broader GOP tax reform plan moving through Congress.
Over the course of the past year, congressional leaders have consistently prevented marijuana measures from coming to the House floor. Aside from banking and tax amendments, proposals to protect state laws from federal interference, allow industrial hemp and increase military veterans’ access to medical cannabis have all been shut down by the House Rules Committee.
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