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Cannabis Ballot Measures Are a Sucker’s Game: Notes from South Dakota, Mississippi, Nebraska and Florida

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Last week, the Supreme Court of South Dakota overturned a voter-approved, constitutional amendment to legalize adult use cannabis statewide. Governor Kristi Noem instigated the anti-democratic fight on social welfare grounds, although the court made its ruling on technical grounds, finding that Amendment A violated a “single-issue” initiative subject requirement. If that’s true, you’d have to wonder why Noem et al. waited until after the election results to challenge the structure of the initiative. You might also wonder how Amendment A found itself onto the ballot in the first place. Presumably, the Secretary of State had approved this submission.

This is the second time in 2021 that a state supreme court has struck down a voter-approved initiative to legalize cannabis use. In May, the Mississippi Supreme Court abolished Initiative 65 (regulating medical cannabis), even though a whopping 73% of voters had backed the measure. In that case, the Court cited a constitutional requirement that signatures be collected equally across five Congressional districts. Since the instatement of that requirement, however, the state had dropped from five districts to four, and the standard was therefore impossible to meet. (Yes, you read that right.)

These outcomes are discouraging but not surprising: the South Dakota judge who first ruled against local voters was a very recent Noem appointee, and the Mississippi judiciary is a national embarrassment when it comes to cannabis. Anyway, here we are.

Something important to understand about cannabis legalization is that only 21 states allow citizen-approved ballot initiatives. The manner in which Colorado, Washington, Oregon, California, etc., first legalized cannabis for medical or adult use simply isn’t available in a majority of states. Another important thing to understand is that legal challenges to cannabis ballot measures have been around for a long time. They just haven’t succeeded until recently, and most of them have received less attention in the media than in the courts. Historically, courts have looked at requests to overturn the will of the voters with strong skepticism.

Based on my research, there are nine states where voters may have the opportunity to approve cannabis ballot measures in 2022. Those states are: Arkansas, Idaho, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota (try again) and Wyoming. The initiatives range from decriminalizing certain amounts of cannabis, to creating programs for medical use and adult use. Most of these states already have some form of cannabis “legality” on the books, and citizens of some of these states have approved earlier cannabis ballot measures. You can assume several of the 2022 initiatives will pass, and you can also assume that most or all of them will be challenged– using a familiar playbook.

Signature Collection Challenges

These challenges are generally broken into two prongs. The first is a challenge to the validity of signatures gathered, and the second is a challenge to the qualifications of the signature collectors themselves. The Mississippi litigation referenced above succeeded on the first prong, but both can be problematic.

In all states, a complex overlay of constitutional provisions, statutes and administrative rules regulate signature collection, verification and counting. During COVID, the requirements have become even more challenging. Canvassers in all states are advised to pay very careful attention to process strictures here; and to expect challenges to requests for electronic signature gathering or other accommodations.

Initiative or Ballot Language Challenges

This category of challenge can sink an initiative prior to ballot placement, or after voter approval. Earlier this year, the Florida Supreme Court ruled that an adult use marijuana initiative was “misleading” after the sponsors had expended tremendous time and resources gathering 556,000 signatures. A few months later, the court ruled against the activists’ second attempt, again calling the ballot title “misleading” and conclusively barring it from statewide ballot consideration. Brutal.

Single-Subject Rule Challenges

Many states have rules that an initiative or ballot measure can address only a “single subject.” And South Dakota organizers aren’t the only ones who have felt the sting of a challenge on these grounds.

In December of 2020, the Nebraska Supreme Court ruled that the Nebraska Secretary of State had wrongly allowed a medical marijuana initiative to qualify for the ballot. This ruling came one day before the legal deadline to certify the measure for the general ballot, and after 180,000 signatures had been gathered. In an exceedingly technical opinion, the court found that that a provision allowing for both the use and production of medical marijuana products in Nebraska were two different subjects. The result here would be funny if it weren’t true.

Big Picture: The Political Thicket

Ultimately, most legal challenges to cannabis ballot measures and initiatives occur in conservative states, which have undertaken an “assault” on ballot initiatives more generally over the past few years. The attempt to impede initiative lawmaking is an extension of voter suppression strategies. It utilizes many tools, including:

  • inflating signature collection requirements;
  • compressing collection timelines;
  • enacting single-subject rules that leave measures open for conservative judicial interpretation;
  • increasing voter thresholds beyond a simple majority to 60% or more; and
  • capping the extent to which private parties can donate to initiative campaigns.

Conclusion

Unfortunately, the foreseeable trend in many states is that ballot initiatives will be harder to move through the system than ever before. That’s a problem not just for advocates of ending cannabis prohibition, but for advocates on a broad spectrum of social and political issues. With cannabis, however, the problem feels particularly acute: Gallup’s most recent polling shows that 68% of Americans support legalizing cannabis, with no qualification related to medical use.

We will continue to track federal and state legislative efforts to end cannabis prohibition. In the meantime, it seems grass roots organizers have their work cut out for them.

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