The Election is Over, Cannabis Rights Win—Now What?By Philip Dawdy
Experts and advocates from the medical and adult-use world of marijuana say legalization and Obama’s re-election will bring good and bad–but stay tuned!
In what must count as the greatest single Election Night in the history of cannabis, voters in Colorado and Washington approved ballot measures legalizing and regulating cannabis for recreational use by adults 21 and older. Despite three other attempts including California’s failed Proposition 19 in 2010, this has not happened since the federal government enacted Marijuana Prohibition in 1937. Meanwhile voters in Massachusetts approved a medical cannabis initiative in the Bay State, making it the 18th medical cannabis state. In Oregon, an underfunded legalization initiative failed as did a medical cannabis initiative in Arkansas, which missed passage by 4 percent, a very narrow loss.
In other news, you may have heard President Barack Obama was elected to a second term.
So what does any of this mean for patients, regardless of what state you are in? It’s a bit early to be able to flesh out all the answers, but certainly Steph Sherer, executive director of Americans for Safe Access, says she expects more of the same federal heat on medical cannabis that the Department of Justice has thrown around the last two years.
“They’ve been acting aggressively on medical cannabis for two years and, actually longer, so there’s no expectation that will change,” Sherer says.
Much as when Proposition 19 was on the ballot in California in 2010, there were fears among some medical cannabis patients and providers in Colorado and Washington (OK, far more fear in the Evergreen State where I-502 is controversial for its THC DUI provision) that legalization would be very bad for them. That’s not how Brian Vicente, a co-author of Colorado’s Amendment 64 and a longtime medical cannabis advocate, sees things.
“I think it’s a positive thing for patients because a general mainstreaming of marijuana for folks using for medical and other purposes makes more people comfortable with marijuana and, then, they don’t discriminate against users of marijuana,” he says, “That’s better for patients.”
It’s worth pointing out that Colorado’s initiative did not contain a THC DUI limit and exempted medical cannabis patients from taxes imposed on recreational use. So medical cannabis patients will likely be mostly unaffected by Amendment 64′s provisions. But in Washington State I-502 imposed a fairly arbitrary DUI limit of 5 nanograms per milliliter of whole blood of active THC metabolite on any adult 21 or over, a zero nanogram limit for anyone under 21 operating a motor vehicle (including patients) and it did not exempt medical cannabis patients from paying a 50 percent to 75 percent tax on medical cannabis. That’s all going to cause big trouble and loads of THC DUI prosecutions, says Jeffrey Steinborn, a NORML board member and a longtime cannabis defense attorney.
“Washingtonians are going to be asked to suffer in the name of legalization, but the cause of legalization will move forward,” he says. He adds that 502′s DUI law, which takes effect Dec. 6, hardly changes life at all for drug reformers such as himself. “Now, we’ve got another bad drug law that we’ve got to fight. I guess I won’t get to retire.”
“There’s a lot of work to do there,” says Sherer.
Alison Holcomb, I-502′s main author, contends that her initiative’s controversial provisions affecting patients can be quickly fixed in the state Legislature by creating exemptions for patients under state law. If enacted by legislators, such fixes would not take effect until July 2012.
But the big question lingering over passage of two legalization initiatives—challenges to 75 years of cannabis prohibition—is what will the feds do? No one really knows for sure, because no state has passed a legalization initiative before. Holcomb notes that the feds have never before filed a federal preemption challenge to any state medical cannabis law and says she expects that the feds will treat state level recreational legalization the same. Holcomb is perhaps the only person in Washington State, or the nation. making such a prediction.
Both initiatives are widely expected to draw prompt legal challenges from the DOJ and could well be tied up in court injunctions for several years. In the meantime, their state-licensed cannabis shops and regulatory schemes would be frozen. There’s also word that some medical cannabis patients may try to get an injunction against 502′s implementation. In other words, stay tuned.
And also rest assured: the medical cannabis collectives and dispensaries in both states are not going anywhere soon. The Colorado initiative allows them to chose whether they want to serve medical cannabis patients or recreational users. In Washington, the Legislature will be left to sort out that such bifurcations.
Passage of Question 3 in Massachusetts clearly advances the medical cannabis cause, says ASA’s Sherer, and she says that she is not too discouraged by the close miss in Arkansas, MMJ’s first ever ballot try in the South.
“Even if we lose in Arkansas,” she says, “we’ve still built up a group of people who will go after it” next year in the Arkansas legislature and who’ve definitely sent a message to other states in the Deep South—such as Tennessee and Alabama, both with active medical cannabis bills—that medical cannabis is an issue that can no longer be ignored.
In Detroit, a majority of local voters approved Measure M, decriminalizing possession of up to one ounce of marijuana by an adult over the age of 21 on private property. While it isn’t a statewide measure, Measure M is certainly a step in the right direction for Michigan patients. Between this and the successes in Washington and Colorado last night, it’s clear that progress towards abolishing the prohibition on cannabis is being made nationwide, even though not all measures were successful. Sadly, in Arkansas, a statewide measure that could have decriminalized marijuana for medical use lost by a very small margin. In Oregon, Measure 80 attempted to legalize marijuana for adult use but only received 45 percent of the popular vote, causing it to fail as well. It was also unfortunate that Montana failed in its attempt to lower restrictions the state already has on medical marijuana. As a community, we must remain positive and proud that even though the measures did fail, it was only by a small percentage—hope remains for the legal future of marijuana.
And so went the greatest Night of Cannabis Politics Ever. Grandiose and a mixed-bag all at once.