Why four marijuana initiatives might face trouble on Nov. 4

In an effort to build on the legalization of marijuana for recreational use in Colorado and Washington in 2012, pot proponents have placed legalization initiatives on next Tuesday’s ballot in Alaska; Oregon; Washington, D.C.; and Florida.

Win or lose, they say, legalization has become a mainstream issue across the country in part because of what happened last election.

It’s way too early to draw any broad conclusions, but the early indicators are good and the sky hasn’t fallen” in Colorado and Washington, says Steven Gutwillig, deputy executive director of Drug Policy Alliance, a pro-legalization advocacy group.

But even with momentum running in favor of legalization, a midterm vote has special challenges for drug ballot initiatives, since the electorate in nonpresidential elections is typically smaller, older, and more conservative.

“People need to realize that, win or lose, all these laws are going to morph in different states for different reasons over time,” says Nathan Tvert, director of communications for the Marijuana Policy Project in Washington, which backs legalization.

Though often similar, new laws could bring a variety of approaches to cultivation, possession, marketing/advertising, and taxing that will be key for other states contemplating legalization in coming years. Here are the four: 

• Florida's Amendment 2, would legalize medical marijuana, with new protections for patients, doctors, caregivers and dispensaries. Twenty-three states now allow medical use of marijuana, following the first-of-its-kind California law in 1996. Florida would be the first Southern state. Proponents say they are trying to ensure patients who smoke medical marijuana would not lose rights to children in custody fights and doctors would not face lawsuits just for authorizing pot use. Opponents say these protections are too broad. If adopted, stoned patients could cause accidents and not face consequences, and doctors could authorize pot use frivolously with no fear of penalty.

• Oregon Measure 91 would legalize recreational marijuana for people age 21 and older, allowing them to possess up to eight ounces of "dried" marijuana and up to four plants. Additionally, the measure would task the Oregon Liquor Control Commission with regulating sales of the drug. An Oct. 26-27 survey by The Oregonian and KGW radio found that 44 percent backed the legalization measure while 46 percent were opposed. An earlier poll by Oregon Public Broadcasting and Fox 12 showed 52 percent supported Measure 91 and 41 percent opposed.

• Alaska Measure 2 would allow people age 21 and older to possess up to one ounce of marijuana and up to six plants. It would also make the manufacture, sale, and possession of marijuana paraphernalia legal. These changes would be implemented at the state level; however, these acts would still remain illegal under federal law. Opinion polling on Alaska’s Ballot Measure 2 shows a close race, with the initiative losing in the most recent survey.

• Washington, D.C.’s Initiative 71 would would fully decriminalize marijuana in the district, following a law passed earlier this year making possession of one ounce or less a ticketable infraction with a fine of $25. The ballot measure removes any penalty for possession or non-commercial transfers. A recent poll signals nearly 2-to-1 support for the measure.

What makes the D.C. initiative compelling is that it is the first reform campaign being fought especially on issues of racial justice and that it is happening in the nation’s capital, Mr. Gutwillig says. 

Nine out of 10 people arrested for drugs in Washington are black, and most of those arrests were for marijuana, according to the Washington Lawyers' Committee. Yet evidence suggests that blacks are no more likely than whites to use marijuana. 

“Because the campaign and debate is happening in Congress’s backyard, it will be very noticeable if the residents say, ‘enough is enough.’ ” he adds.

Florida’s legalization measure may have the most uphill battle, because although polls show says 80 percent of voters approve of medical marijuana, billionaire casino magnate Sheldon Adelson has reportedly donated $4 million to oppose the measure.

“Four million is an awful lot of money in a situation like this,” says Gutwillig. “Never in 20 years of statewide marijuana initiatives has there ever been big money on the no side.”  The money is, in effect, a proxy vote against the Democratic gubernatorial candidate, former Republican Charlie Crist, he says. The Florida measure needs a 60 percent supermajority of voters for approval.

Meanwhile, Florida trial lawyer John Morgan, a law partner of Mr. Crist, has contributed about $4 million into support of the measure – a move that GOP critics say is aimed to motivate young Democrats to vote in the midterm election.

Should the Alaska and Oregon measure pass, their experiences leading up to a new round ballot initiatives in 2016 will be scrutinized for what they say about different approaches to regulation. Oregon is proposing a fairly robust regulatory system but relatively low taxes, $35 per ounce. Alaska's ballot measure has less regulations but a higher tax, $50 per ounce.

“We have a lot to learn about how to tax marijuana,” says Beau Kilmer, co-director of the RAND Drug Policy Research Center. “The initiatives in Oregon and Alaska propose to tax marijuana as a function of its weight, which is different from the value-based taxes levied in Colorado and Washington. So if either of these initiatives pass, analysts will want to pay close attention to the pros and cons of this alternative tax regime.”

With activists in California preparing an initiative for the 2016 ballot, analysts say that how these laws – or their failures – play out will be grist for what comes next.

“There is a lot of policy space between prohibition and the commercial legalization approach,” adds Mr. Kilmer. For example, he says jurisdictions considering alternatives to prohibition could allow home production, co-ops, or even limit the industry to nonprofit organizations.

“Another option is a state monopoly," he says, "But that does not get much attention in the US, since states can’t force their employees to violate federal law.”