Nothing in 2020 has gone according to plan, and cannabis legalization is no exception. According to Vox's criminal justice and public health reporter German Lopez, at least 18 states were predicted to legalize cannabis to some degree this year, either through their legislatures or via ballot measure. 2020 was supposed to be a big year for cannabis legalization.
And then COVID-19 happened.
Across the country, ballot measure campaigns reliant on gathering signatures were forced to shut down operations due to health concerns and social distancing guidelines. Campaigns in a handful of states aiming to put cannabis legalization on the ballot, including Arkansas, Missouri, and North Dakota, are now on hold for this election cycle, and activists are already gearing up for 2022. In Oklahoma, a combination of both a legal challenge to a proposed adult-use initiative and COVID-19 has made it nearly impossible to gather enough signatures to qualify for the November ballot.
If unable to meet the upcoming deadline, the campaign will likely try to put legalization up to a vote in a special election in 2021, or they will have to wait until the 2022 election. Meanwhile, previous legislative priorities, including cannabis, fell by the wayside as local, state, and federal legislatures pivoted to address the public health crisis.
The global pandemic cannot entirely account for why certain legalization movements failed to cross the finish line, as that is the nature of politics and governance, but there is no doubt that COVID-19 has greatly impacted the cannabis policy landscape.
However, up to seven states will have the opportunity to vote for medical or adult-use legalization this November. If all seven ballot measures pass, it will be the second biggest year for cannabis legalization, falling just short of the nine states that legalized medical or adult-use cannabis in 2016.
Despite all of the uncertainty and disruption caused by the pandemic, it's looking like 2020 could still be a pivotal year for cannabis.
Cannabis legalization will be on the ballot in multiple states
Unless something extraordinary happens in the next few months, federal legalization is very likely off the table for 2020. Despite some recent movement on the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, legalization has gained little momentum in Congress. President Trump also appears to have no plans to move on legalization and is facing little to no pressure on the matter from his political opponent, Joe Biden. So once again, the states are moving forward on cannabis legalization with or without the federal government. As is true with much of the history of cannabis in the United States, the fate of legalization lies in the hands of the voters.
At the time of writing this article, seven states are expected to have legalization initiatives on their November ballots. Arizona, Montana, New Jersey, and South Dakota have ballot measures that would legalize cannabis for adults over 21, and Idaho, Mississippi, Nebraska, and South Dakota have ballot measures that would establish a medical cannabis program.
Idaho is still in the signature-gathering phase, however, activists are in the middle of a legal battle to win the right to collect signatures electronically. The Idaho Cannabis Coalition claims they have around 45,000 unverified signatures, and they will need 55,057 valid signatures to qualify for the ballot.
Montana, South Dakota, and Mississippi will vote on multiple cannabis-related ballot measures. South Dakota will be the first state to vote on separate medical and adult-use legalization initiatives in the same election year. Montana residents will vote on one measure to legalize adult-use cannabis, and a separate measure to add a constitutional amendment that would set the legal age for cannabis at 21.
In Mississippi, voters will have the chance to vote for two separate legalization initiatives, Initiative 65 and Alternative 65A. Both would legalize medical cannabis, however there are significant disparities in the level of detail between the two measures.
Initiative 65, led by the Medical Marijuana 2020 campaign, includes specific information on qualifying conditions, possession limits, license fees, tax rates, which state department would oversee the program, and deadlines for program implementation. Alternative 65A, which was placed on the ballot by the Mississippi State Legislature as an alternative to Initiative 65, provides minimal details on the proposed medical program.
Campaigning in the era of COVID-19
COVID-19 has dramatically impacted how both signature gathering and campaigning are being carried out due to health concerns and social distancing mandates. Signature gathering typically involves people going door-to-door or visiting busy locations. It often requires close contact with others and the sharing of materials, including clipboards, petition forms, and pens. Many campaigns had to make the decision to either suspend their operations or make significant changes to protect the health and safety of both the campaigners and the general public.
“It was decided that it was reasonable and prudent to gather signatures if we made major changes to the process. So we pretty much reinvented signature gathering … We ordered 150,000 pens so each signer could have their own ink pen….There were handwashing stations and social distancing regulations. And then Montanans showed up. Every time we set up a signature gathering table, people would stop their cars, get out, get a pen and sign. 130,000 people did that,” said Pepper Petersen, the political director for New Approach Montana.
In addition to preventing signature gathering, COVID-19 has also impacted campaign strategies leading up to the election. Once an initiative receives enough signatures to qualify for the ballot, campaigns typically employ a voter education and advertising strategy to ensure the success of a ballot measure. This includes television and digital advertising, printed educational materials, and door-to-door canvassing. This year, however, campaigns must focus almost entirely on reaching voters remotely.
According to Axel Owen, the campaign manager of NJ Can 2020, a coalition supporting the legalization efforts in New Jersey, “[COVID-19] forced us in the beginning stages to take a look at the way campaigns are done. Normally we go hire organizers. We get people out knocking on doors. We do the standard things. But because of COVID, we had to make an educated decision early in the campaign to focus more on digital and new ways of approaching voters on this issue.”
On top of educating people on what to vote for, COVID-19 has presented a new challenge for campaigns- educating people on how to vote. With all of the uncertainty surrounding the upcoming election, particularly whether voting will be done entirely by mail or not, campaigns are preparing to educate voters on how to mail in their ballots.
“The most dangerous thing in our mind is somebody who votes for marijuana legalization but doesn't do the ballot right. They don't sign the outside envelope and their vote gets thrown out,” Owen explains. “What we've been doing is making sure that our communication is focused on both the education around the issue ... but also educating voters on how to properly vote by mail. Making sure they know what they're doing and making sure that their vote is actually counted.”
Impacting the future (and past) of cannabis in America
One of the most important components of cannabis legalization is the opportunity to address the harms caused by the War on Drugs. Of the seven states with legalization ballot measures this year, only Nebraska and Mississippi have taken steps in the past to decriminalize cannabis. In the other five states, a person can still be arrested and receive jail time for simple possession.
Arizona, Montana, and South Dakota all have decriminalization provisions in their ballot measures; and Arizona and Montana's ballot measures would allow those with certain cannabis-related charges to expunge their records.
“We had so many people participate in the drafting. We had a statewide tour where we collected information ... and 100% of the time, [people] said expungement was the one thing that they all wanted to see in the law no matter what,” said Pepper Petersen. “To be out here campaigning for this and to see that 100% support, it galvanizes your personal commitment to making sure that this thing passes.”
Legalization on its own will not automatically repair the harms of cannabis criminalization, but it is often a step in the right direction.
Even though seven states have the opportunity to legalize medical or adult-use cannabis this November, the different ballot measures vary in both their scope and level of detail. Some initiatives are more robust and provide a clear roadmap for what the cannabis market will look like, whereas others provide a skeletal framework that will rely on the legislative and regulatory processes to hash out the details of the future cannabis market in that state.
Cannabis on the local level
Beyond ballot measures, other electoral races have the potential to impact the future cannabis market. Governors, local and state representatives, and city councils all play an important role in shaping the cannabis industry. For example, many ballot measures include provisions that would allow local governments to ban commercial cannabis activity in their jurisdiction, highlighting the importance of local elections.
The work is not over after the passage of a ballot measure. The quality of a cannabis market relies on those in government tasked with the implementation and oversight of the newly legalized cannabis industry. Voters in favor of cannabis legalization should take the time to research the different candidates running for office in their state to determine whether they would support or hinder cannabis legalization and access.
This November, up to seven states could legalize medical or adult-use cannabis. Idaho and South Dakota, both notorious for having some of the strictest cannabis laws in the United States, could finally join the majority of the country in legalization. States could generate millions of dollars in much-needed tax revenue during a time when public funds are drying up due to COVID-19, patients across the country could soon have access to crucial medicine, and thousands of people could have their previous cannabis records expunged.
2020 could still be a big year for cannabis legalization.
Featured image by Ted Dick