Voters in five states will consider ballot measures to legalize marijuana in November despite federal prohibition.

Voters in Arizona, Montana, New Jersey and South Dakota will consider ballot measures to legalize marijuana for adult use. Mississippians and South Dakotans will have the opportunity to legalize medicinal cannabis.

Arizona

Arizona voters legalized medical marijuana in 2010, passing Proposition 203 by a razor-thin margin. In 2016, a ballot measure to legalize marijuana for recreational use narrowly failed by a 51.3-48.7 margin.

Voters will get a second chance to legalize cannabis for adult use in November. Prop. 207 would allow limited marijuana possession, use, and cultivation by adults 21 or older. It would also set up a tax and regulatory structure for the cultivation and sale of cannabis. The ballot measure includes a provision to allow the expungement of marijuana offenses.

New Jersey

New Jersey legalized medical marijuana in 2010. The program languished under Gov. Chris Christie, a staunch opponent of cannabis. When Gov. Phil Murphy took office, he loosened requirements and expanded the number of qualifying medical conditions. The New Jersey legislature expanded the program further in 2019.

In November, voters will consider Public Question No. 1. It was passed and place on the ballot by the New Jersey legislature. The ballot measure would legalize the possession, use and cultivation of marijuana by persons 21 and older, along with the manufacture and retail sales of cannabis products. The Cannabis Regulatory Commission that currently oversees the state’s medical-marijuana program would manage the regulatory scheme.

South Dakota

South Dakota voters could legalize both medical and recreational marijuana in November.

Measure 26 would establish a medical marijuana program for patients with qualifying conditions. Patients could possess up to three ounces of marijuana and could grow up to three plants. The measure would also establish a licensing program for commercial production of medical marijuana and sales through licensed dispensaries.

Amendment A would amend the state constitution to “legalize regulate and tax marijuana; and to require the legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use.”

Mississippi

Mississippi voters will consider two competing ballot measures to legalize medical marijuana.

Initiative 65 was put on the ballot through a citizen initiative by Mississippians for Compassionate Care. Activists turned in more than 214,000 signatures to put the proposal on the ballot. The measure would allow patients suffering from 22 qualifying conditions to access medical marijuana with the recommendation of a physician. Patients would be allowed to possess up to 2.5 ounces of cannabis per 14-day period.

With the passage of HC39, the Mississippi legislature put the competing medical marijuana legalization measure (Initiative 65A) on the ballot. It has far less detail and has more restrictions than the citizen initiative.

The legislature’s passage of a competing ballot initiative is widely seen as an attempt to prevent the legalization of medical marijuana in Mississippi. According to Forbes, Gov. Phil Bryant (R) voiced opposition and suggested that the legislature propose an alternative. According to Marijuana Moment, the competing measure could split votes and prevent either measure from passing.

“Mississippi’s ballot initiative process allows the legislature to put an alternative resolution on the ballot if they don’t like what’s being offered,” Medical Marijuana 2020 Campaign communications director Jaime Grantham told Marijuana Moment. “The only reason to do that is that it’s very convoluted and it confuses the process for voters and it ultimately kills it. That’s really where we’re at right now.”

Grantham also pointed out that the legislature could have legalized medical marijuana at any time and failed to do so. She told Marijuana Moment that legislators are suddenly tackling the issue now because their hands have been forced by the qualified ballot measure and called it disingenuous.

“The reason that some people in the legislature are doing this is to kill the initiative before it even has a chance,” she said. “They’re unwilling to let Mississippi voters have a fair up-or-down vote on the initiative. It’s wrong.”

Nevertheless, the fact that the voters will have an opportunity to vote on medical marijuana in Mississipi is a step forward and gives the people an opportunity to be heard on the issue. It’s also important to note that all of this political maneuvering is happening in Mississippi despite federal prohibition.

Montana

Montana legalized medical marijuana in 2004 through a ballot initiative. In November, Montana voters will consider Ballot issue I-190. The measure would legalize the possession and use of limited amounts of marijuana by people 21 and older. It would also establish a licensing, taxation and regulatory scheme for cannabis sales and cultivation. I-190 includes a process for resentencing and records expungement for past marijuana offenses.

A separate initiative, CI-118, would amend the state constitution to allow the legislature or a citizen initiative to establish the legal age of purchasing, consuming, or possessing marijuana.

EFFECT ON FEDERAL PROHIBITION

Voters in these states will consider legalizing cannabis despite federal prohibition.

Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains the complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

The legalization of marijuana for medical or recreational use removes a layer of laws prohibiting the possession and use of marijuana. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By legalizing cannabis, these states can essentially sweep away at least some of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

A GROWING MOVEMENT

These five states could join a growing number of states simply ignoring federal prohibition, and nullifying it in practice.

Washington, Colorado, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019.

With 33 states including allowing cannabis for medical use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.


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