Voters Tuesday rejected Statutory Measure 2, which would have created a new chapter of the North Dakota Century Code legalizing the production, processing, and sale of cannabis. It would have also legalized the possession and use of various forms of cannabis by anyone 21 years of age or older.
It would have also tasked the state health department with setting up industry regulations by Oct. 1, 2023, and cap the number of cultivation facilities at seven and the number of retail dispensaries at no more than 18. Other details like taxation would be left to the state’s Legislature.
Under the bill, adults 21 and older would have been able to purchase and possess up to one ounce of cannabis, four grams of concentrate and flower produced from up to three plants grown at home for personal use.
The bill would have allowed for only a maximum of seven cultivation facilities and 18 cannabis retailers.
North Dakotans rejected an adult-use cannabis legalization measure also in 2018 by a vote of nearly 60%.
The measure was heavily based on language from a legislative cannabis proposal, House Bill 1420, which was approved by the North Dakota House of Representatives in 2021.
Last July, New Approach ND turned in enough signatures for the legalization measure to qualify, and Secretary of State Al Jaeger certified the initiative the next month.
North Dakota voted against legalization in the 2018 midterm elections, and the legislation ended up with the same fate this year.
Voters in five states will see recreational marijuana legalization proposals on their ballots for the November midterm elections, giving the cannabis community a chance to gain new ground in the movement to free the plant.
Activists in Arkansas, Missouri, North Dakota and South Dakota have successfully led campaigns to put an adult-use cannabis legalization initiative on the ballot in their states, while lawmakers in Maryland have turned to the voters for guidance with a referendum to legalize recreational marijuana. As the November election nears, the campaigns for reform are busy rallying the voters for support. And with the number of states that have legalized recreational marijuana approaching half the country, each new jurisdiction brings the country one step closer to comprehensive reform.
Brooke Butler, vice president of partnership at cannabis compliance tech company Simplifya, told Cannabis Now that in addition to giving voters a chance to weigh in on cannabis reform in their own states, the ballot measures in this year’s election can help inform policy and spur progress in other jurisdictions and at the national level.
“As we head into midterms, we’re going to see a number of cannabis ballot initiatives take center stage,” Butler said. “Ballot initiatives are one of the truest forms of democracy in action and a great barometer of where America stands on key issues. When it comes to cannabis, historically, Americans have said yes in overwhelming numbers.”
In Arkansas, voters will see Issue 4, a proposed initiative to amend the state’s constitution, on their ballots. If passed, the measure from Responsible Growth Arkansas would allow adults 21 and older to possess up to one ounce of cannabis and permit licensed dispensaries to sell recreational marijuana. Taxes raised on sales on adult-use cannabis would be used to fund hospitals and healthcare research, law enforcement and drug courts, which focus on reducing repeat offenses and substance abuse among nonviolent offenders with substance misuse disorders.
Polling by Talk Business & Politics-Hendrix College released last month showed that Arkansas’ legalization proposal was supported by 59% of likely voters, with just 29% opposed and 13% undecided. Brian Vicente, founding partner of the cannabis and psychedelics law firm Vicente Sederberg, said that the legalization of recreational marijuana in Arkansas would be a significant victory for the cannabis reform community. But provisions of the measure that favor the state’s existing medical marijuana industry have left segments of the movement unsatisfied with the legislation.
“A win for legalization in Arkansas would be seen as a major win for legalization advocates due to the fact that the current Governor Asa Hutchinson is a rabid prohibitionist who served as a chief architect of the nation’s Drug War when he was the head of the DEA,” Vicente noted. “However, this measure is the most controversial of the five ballot initiatives, since it provides a major benefit to the relatively small number of current medical marijuana business owners and only allows a very narrow path for new business entrants.”
Voters in Maryland will decide on Question 4, a referendum that would amend the state constitution to legalize marijuana for adults 21 years of age or older beginning in July 2023. The measure also directs the state legislature to pass laws for the use, distribution, regulation and taxation of marijuana. Currently, marijuana is legal for medicinal use in Maryland under a 2013 law, while possession of 10 grams or less of cannabis was decriminalized in 2014. Question 4 is overwhelmingly supported by Maryland voters, with a poll from The Washington Post and the University of Maryland showing 73% in favor of the proposal.
In July, California firm The Parent Company, home of Jay-Z’s Monogram brand, announced that it would be entering Maryland’s medical marijuana market through a partnership with Curio Wellness. TPCO CEO Troy Datcher said that if Question 4 succeeds, the company will be well-positioned to grow with the state’s newly legal market for adult-use cannabis. As might be expected, Datcher told Cannabis Now in an email that “TPCO is in favor of passage of Question 4.”
“Cannabis criminalization in Maryland has been a major public policy failure and has resulted in the disproportionate incarceration of communities of color,” said Datcher. “It is critical that the state take a new direction, particularly as many of its neighboring states begin adopting adult-use programs. In addition, legalizing cannabis in Maryland would stimulate the state’s economy and create tens of thousands of new jobs for locals.”
Midterm election ballots in Missouri will include Amendment 3, which would change the state constitution to legalize the possession, use, sale and delivery of marijuana for personal use and sets a 6% tax on commercial cannabis sales. The proposal, advanced by Legal Missouri 2022, also includes provisions for the expungement of certain marijuana-related convictions. Polling on Amendment 3 is mixed, with a survey commissioned by the Missouri Scout in early September finding only 43% of respondents in support of Amendment 3, compared to 47% against and 10% undecided. However, a SurveyUSA poll conducted only days later found that 62% of voters were “certain to vote yes” on Amendment 3.
Mark Toigo, CEO of Organic Remedies Missouri (ORMO), said that his company supports the ballot measure, noting that polling has shown that a significant majority of the state’s residents support legalizing adult-use cannabis. But the state legislature has failed to act in accordance with the will of the people. Noting that the initiative campaign collected more than 400,000 signatures from supporters, Toigo believes the whole state will benefit if the measure is approved.
“If the ballot question receives a majority vote it will transform the Missouri cannabis industry into one of the strongest in the country. With existing infrastructure, a well-trained workforce, and some of the best brands in cannabis already established in the Missouri Medical Marijuana program, Missouri will be positioned to no longer lose its tax revenue to states like Illinois and Oklahoma,” Toigo explained in an email. “Legal Mo 22 ensures sustained job creation, economic development and revenue flow to Missouri, while also righting the wrongs of cannabis’ past prohibition and providing ample opportunities for those most harmed by the failed war on drugs.”
Statutory Measure 2 in North Dakota would legalize recreational marijuana for adults 21 and older and permit the home cultivation of up to three cannabis plants. Retail sales of marijuana would be permitted by the measure, although the initiative includes a cap of 18 dispensaries and seven production facilities. The measure also requires the state Department of Health and Human Services to enact regulations governing commercial cannabis cultivation, manufacturing and sales by October 1, 2023. Although statewide polling data is not available, a poll of southwestern North Dakota residents in July found that only 39% supported the marijuana legalization initiative from New Approach North Dakota, while 43% were opposed and 18% were indifferent. A similar effort in 2018 failed at the polls, with 59% voting against the measure and 41% in favor. But the campaign manager for both efforts, David Owen, believes this year might be different.
Voters in neighboring South Dakota will also have the opportunity to legalize recreational marijuana in November. If they vote in favor of the measure, it wouldn’t be the first time. A 2020 ballot measure to legalize adult-use cannabis passed with 54% of the vote, but a legal challenge supported by Gov. Kristi Noem led to the state Supreme Court invalidating the measure on procedural grounds. The vote on this year’s proposal, Initiated Measure 27, could be closer than two years ago, with the results uncertain as election day approaches. A South Dakota State University poll released on October 14 showed that 45% were in favor of the legalization bid and 47% against, with 8% undecided.
If Measure 27 prevails on election day, possession and use of cannabis and marijuana paraphernalia will be legalized. Adults 21 and older would be permitted to possess or distribute up to one ounce of marijuana. Those living in a jurisdiction without a licensed marijuana retailer would be allowed to grow up to three cannabis plants in a secure location. Attorney Vicente says legalization in the Dakotas could put additional pressure on lawmakers in Congress to finally achieve national marijuana reform.
“Despite their small populations (both Dakotas have more cows than people), legalization votes in these states could move the needle in a profound way at the federal level,” Vicente wrote in an email. “Upon their states’ voting to legalize, the four U.S. Senators representing the Dakotas would be faced with an important decision—do they continue to vote to uphold federal prohibition and criminalize their own constituents, or do they join the growing number of voices in the Senate who are looking to legalize.”
How Will Legalization Efforts Fare in 2022?
With just weeks to go before the midterm elections on November 8, pollsters and pundits are closely watching the marijuana legalization proposals in Arkansas, Maryland, Missouri, North Dakota and South Dakota. Beyond their intended effect on each state’s respective cannabis policy, the ballot measures could also affect other races on those ballots. Ellen Mellody, vice president at cannabis public relations firm Mattio Communications and a former spokesperson for the Obama-Biden campaigns, said that the marijuana legalization measures on the ballot this year are likely to spur turnout among prospective voters who support cannabis legalization efforts. Additionally, she noted that President Joseph Biden’s recent announcement that he would pardon federal convictions for marijuana possession, which she termed a “brilliant move” that is “likely to pay out dividends,” could also boost turnout and encourage voters to support Democratic candidates and bolster efforts to legalize cannabis at the federal level.
“These ballot initiatives will absolutely swing results in certain states and districts, and the pollsters are finally catching on. At the federal level, it’s unlikely the timing of Biden’s announcement last week was an accident,” Mellody wrote in an email to Cannabis Now. “Even in red states Arkansas, Missouri and South Dakota, you’re seeing numbers come in at over 50 percent. It’s no wonder why more electeds at the federal level are hopping on the legalization bus. At a minimum, the results of these initiatives should solidify that the dam is breaking.”
With polling showing that at least three of the cannabis policy reform measures on the ballot are likely to succeed, it’s becoming clear that this year’s election will make new strides in the efforts to end the prohibition of marijuana in the United States. A clean sweep similar to 2020, when voters in all five states deciding on cannabis legalization measures approved the efforts, would be a significant victory for the movement. Datcher of TPCO said that if cannabis policy reform measures post a strong showing next month, it would reenergize efforts to pass comprehensive national marijuana legalization.
“If all five measures pass, the number of states that have legalized adult-use cannabis will increase from 19 to 24, nearly half of the states in the country,” he said. “We are thus getting increasingly close to a ‘tipping point’ where we will hopefully see meaningful movement at the federal level.”
But even if all five states are added to the recreational marijuana fold, activists warn the progress won’t necessarily be the end of story in those states. In addition to South Dakota’s invalidation of the successful 2020 measure, the Mississippi Supreme Court also struck down a medical marijuana legalization initiative that passed the same year. And Paul Armentano, the deputy director National Organization for the Reform of Marijuana Laws, noted that several of this year’s ballot measures faced opposition and efforts to keep them off the ballot. The tactic worked in Oklahoma, where voters will have to wait until 2024 to decide on State Question 820. In September, the state Supreme Court ruled that the recreational marijuana legalization measure would not appear on the November ballot, despite the campaign’s adherence to the state’s regulatory guidance and deadlines.
“With public support for marijuana policy reform reaching super-majority status in recent years, prohibitionists and other political opponents have largely abandoned efforts to try and influence public opinion,” Armentano said in a statement from the agency. “Rather, they are now relying on anti-democratic gamesmanship to prevent voters from weighing in on the issue.”
On November 9, the day after this year’s midterm elections, the cannabis community is sure to have new wins to celebrate. But the parties should be tempered with a realization that the job is not yet done. More than half the states in the nation will still have bans on adult-use cannabis, and prohibitionists will regroup to stand their ground, dwindling as it is. To maintain progress once the ballots are counted, the cannabis community must celebrate the victories, assess the failures and stay vigilant for the fight ahead.