For those who support ending marijuana prohibition, Nov. 8 was a day of celebration. Voters in Arizona, California, Nevada, Massachusetts and Maine had the opportunity to decide whether to legalize marijuana for adult use. All but Arizona passed their respective measures, raising the number of states with legalized marijuana to eight, plus the District of Columbia. Citizens in Arkansas, Florida, Montana and North Dakota approved referendums to expand existing medical marijuana programs.
The results on Tuesday are a sign that marijuana prohibition’s days are numbered, leaving only the question of when it will end completely. Chipping away at marijuana prohibition is also crucial to ending the war on drugs, which has had devastating consequences, not least of which are the racial disparities it has created in the criminal justice system. In order to address these disparities, states that legalize marijuana should also overturn marijuana convictions, expunge the records of those convicted under old laws and avoid excluding individuals with past marijuana law violations from entry as entrepreneurs into newly created marijuana markets.
Medical marijuana advocates also had decisive wins. In North Dakota, Measure 5 to extend its medical marijuana program passed with 63.7 percent of the vote. Montana’s initiative to expand the state’s medical marijuana program won 57.6 percent of citizen approval, and in Arkansas, a state where many drug reform advocates thought victory was unlikely, the medical marijuana amendment passed with 53.2 percent of the vote. Perhaps most notably, Florida’s Amendment 2 to expand medical marijuana, received 71.3 percent of the vote. The bill allows doctors to recommend marijuana for established conditions such as HIV and cancer, but also other comparable medical conditions, language that has potential to make that state’s medical marijuana program one of the most inclusive in the nation.
Florida is also the first southern state to allow access to whole-plant medical marijuana. This may encourage legislators in other states in the region to look more seriously at broader medical marijuana programs. So far, the most popular marijuana reforms in the South are Cannabidiol (CBD)-only bills, which authorize patients with a limited number of conditions to access a restricted form of cannabis that is very low in the plant’s psychoactive agent, THC. These laws are criticized by reform advocates as too limited and thus ineffective, and it is unclear whether they actually improve patients’ lives.
Many of the marijuana ballot wins were expected going into Election Day. Polling has consistently shown increasing public support for legalizing medical and adult-use marijuana, and many of the initiatives were well-funded. In California, pro-marijuana groups outspent the opposition $19.8 million to $2.4 million. In Massachusetts and Maine, pro-marijuana groups also outspent the opposition considerably, with much of that money coming from drug policy advocacy groups. But there is a growing concern, especially within the pro-marijuana camp, regarding the role of the marijuana industry. In Massachusetts, Question 4 (to legalize marijuana) has been criticized for too heavily favoring well-established players in the marijuana industry to the detriment of small and nascent entrepreneurs.
The tension between small businesses and larger companies, who have the deep pockets needed to finance successful state initiatives, will likely grow as marijuana legalization spreads across the country. Many marijuana industry representatives will also be more likely to oppose regulations on advertising, dispensary locations and other restrictions, possibly creating a situation in which the industry operates similarly to alcohol and tobacco. This may not be the best model for public health, as unrestricted advertising could encourage greater use. What often gets lost in the debate over legalization is that a for-profit market model is not the only option. Instead of waiting for ballot initiatives or industry pressure, legislatures could take a proactive approach and draft legislation that calls for a different kind of marijuana legalization — for example, by allowing citizens to grow their own but not approving dispensaries, or requiring dispensaries to be owned and operated by the state or nonprofit entities.
Another takeaway from Tuesday is that support for marijuana reform spans party lines. Eight of the nine marijuana initiatives passed despite significant Republican wins in several of these states, indicating that this is no longer a Democrat issue. That marijuana reform enjoys bipartisan support in a time where party divisions cut so deeply suggests that progress will likely continue. Still, this election leaves other uncertainties. It is not clear how a Trump administration will react to states contradicting federal law. While Donald Trump has expressed support for medical marijuana, he seems less enthusiastic about recreational use. At this point, it is nearly impossible to determine how he will feel about the issue when in office, but it will likely depend to some extent on his advisors and who he selects as attorney general, and whether this appointee chooses to prosecute people in legal marijuana states for violating federal laws.
What does all of this mean for Texas? Probably not very much, at least in the near term. The states that have made the most progress on marijuana reform have seen these changes occur in the voting booth. But Texas has some of the most severe restrictions on direct democracy in the country. Because Texans have no outlet to directly voice support or opposition for marijuana use (or any other issue), they must rely on the Texas Legislature to change the law. In 2017, the marijuana proposals that will have the greatest chances of success are decriminalization of marijuana possession in small amounts, and amendments to expand the 2015 Compassionate Use Act, which allows very limited access to CBD-only cannabis for epilepsy patients. But Gov. Greg Abbott has demonstrated an unwillingness to consider marijuana reforms beyond these small steps, and appears hostile to drug reform more generally. As long as the Republican leadership remains as is, Texans are unlikely to benefit from the changing tide in marijuana policy, even as they are increasingly surrounded by states who are embracing reform.
Katharine A. Neill is the Alfred C. Glassell, III Postdoctoral Fell0w in Drug Policy. Her current research focuses on state sentencing policies for drug offenders and the legalization of medical and recreational marijuana.