How will the 2022 midterms affect the future of marijuana legalization?
Despite a fairly steady march towards decriminalization, medical legalization (which, in states like California, was a transparent joke), and recreational adult-use legalization, three of five marijuana legalization ballots failed. So what happened in each of these states, why, and where might it be heading?
What Happened?
Recreational use for adults passed in Maryland and Missouri but lost in Arkansas, North Dakota, and South Dakota. While this was a midterm, which has fewer voters and is thus a less representative sample than during general elections, it is a strong indicator of public sentiment in these states.
However, at the same election, several cities, i.e., five cities in Texas with more than 400,000 people, voted to decriminalize small amounts.
Arkansas
In Arkansas, where many hoped to become the first state in the Deep South region to offer adult recreational use, 56% voted against it. The Arkansas Family Council Action Committee argued that it would increase substance abuse and crime. Resistance to legalization was supported by several high-profile conservative political figures like former Vice President Mike Pence, former Governor Mike Huckabee, and Senator Tom Cotton.
Missouri
Missouri approved Amendment 3 to legalize marijuana for adult recreational use and expunge many records of arrests and convictions for possession. With 89% of the votes counted, the amendment has a healthy lead of 53.1% to 46.9%. Missouri was the only staunchly-conservative state that approved adult use on the ballot this election.
North Dakota
With almost all votes counted, around 55% of voters in North Dakota cast their ballot against Measure 2. This would have legalized possession of up to one ounce of marijuana for adults, and allowed them to cultivate three plants in their homes.
South Dakota
Similarly, South Dakota has counted nearly all ballots, and around 53% of voters cast ballots against Measure 27, another marijuana legalization motion for adult recreational use. A previous, similar measure to legalize adult use had passed, but was blocked and overturned in court by a group led by Gov. Kristi Noem. Although Gov. Noem stated in a town hall meeting that she would not challenge this ballot should it pass, after failing at the ballot, this became a non-issue.
Maryland
In Maryland, the constitutional amendment for Cannabis – Legalization of Adult Use and Possession passed by a nearly 2-1 margin. For those in MD, you can now be busted with up to 1.5 ounces and still be in the clear. As an added plus for the potheads, this legalization triggered another bill that expunges convictions for conduct legalized by the passage of this amendment.
What Does It Mean?
Currently, 19 states, plus the District of Colombia, allow recreational adult use; 13 states still have complete bans, and 18 states allow for medical use. For medical marijuana jurisdictions, this ranges from the highly permissive medical (such as that of California before recreational legalization, where offices were set up expressly to obtain doctor’s notes for marijuana) to other states where patients must have serious conditions and choose from a small number of products legally available.
This marks the first real setback in what has been building momentum towards legalization – although several ballots in 420-friendly jurisdictions have been defeated in recent memory, they were often giveaways to industries, including measures meant to give a few players a monopoly; this is different from the flat-out “no” weed received this week.
However, the fact that these questions could even get onto the ballot indicates that the change in attitudes, as most media has shown, is nationwide. While I have no doubt there are plenty of conservatives that still have the old drug war mentality of the Reagan years, this attitude has been on a steady and noticeable decline for decades, as “just say no” was repeatedly proven ineffective. Also proven ineffective were incarceration; no-knock raids in tactical gear that ended with the family dog being shot in front of children; and a plethora of other breathtakingly cruel, arbitrary, or just stupid actions that have proven expensive, ineffective, and highlight the problems with our legal and criminal justice system in general.
Looking at the issues of contention, the lefties were split on whether and which community should be given the business benefits of legalization. For example, in Missouri, the Missouri ACLU supported the measure, while the Missouri NAACP fought against the amendment. Here, the NAACP took issue with the fact that the amendment would not foster Black and Brown people owning these businesses. On the right, there are the same tried and true arguments – basically, people are going to smoke and commit a crime, or your kid will get high and do something stupid.
This has been a sharp point of contention as communities that have been disproportionately-harmed posture to capture the monetary benefits marijuana legalization will bring. On the one hand, how many African American and Latino households would benefit from being able to set up shop? On the other, how many will be devastated when a green card holder supporting their family is deported after being caught with a joint, or permanently marked by having a nasty run-in with the police after they smell pot?
This is a watered-down version of the complaints that killed an earlier California legalization ballot that would have given a state-wide, multi-billion dollar monopoly to a very small number of businesses.
The Momentum Moving Forward
All in all, while groups may divide themselves about how marijuana legalization should come about and which community should be able to claim exclusive benefits, states are falling one by one. With this in mind, we can see how the environment is changing as a nearby or neighboring state legalizing changes the law enforcement and tax cost-benefit-analysis. This can be seen in how New York was much faster to legalize after New Jersey positioned itself to become an East Coast California for marijuana, with who knows how many New Yorkers taking a day trip in and buying lunch at the Jersey boardwalk rather than in Midtown.
Considering how nearby New Jersey is set to become a hub for Northeast marijuana tourism, and Maryland would have had to spend police resources to deal with a flood of Jersey weed from which they would get no tax benefit, this is an unsurprising move. For any state that borders or is within a few-hour drive of a state with adult recreational use, it will become increasingly difficult to justify burning through tax dollars and chasing a booming industry into other states.
While there are many factors, from racial justice to criminal justice reform to progressive attitudes about drugs developing in the wake of the objective failure that the War on Drugs became, the turning tide of individual states will have knock-on effects nationally. For states that become surrounded by neighbors letting their citizens cross the border with a few ounces, what chance does Mike Pence have to continue to argue for a zero-tolerance law enforcement approach when you can practically smell it wafting in from just a few miles away?
As a journalist and an Attorney, Ryan speaks publicly regarding policy and legislation. To this date, he volunteers in legal aid clinics.
