The focus of the upcoming election in November has been primarily on the presidential race and, to a lesser extent, the partisan control of Congress. While voters may weigh a number of issues, such as the economy, immigration, and housing, in deciding who will represent them, many will also have the opportunity to more directly weigh in on decisions about marijuana policy. Marijuana policy is a central part of the 2024 election, in that voters at all levels of government are being asked to decide if and how marijuana policies should be implemented. This blog will take a deeper dive into the marijuana-related decisions before voters at the state, local, and federal level on Election Day.
Presidential Policy
Marijuana policy has not traditionally been an issue in presidential campaigns but as more states continue to legalize the drug for medical and recreational use, candidates have felt the need to state their position on the issue. With this election taking place in the shadow of federal action to reschedule marijuana from a Schedule I to Schedule III drug, both candidates have clarified their position on marijuana legalization.
Former President Donald Trump has come out in support of the Biden Administration’s rescheduling efforts and has stated that as president he would encourage additional research into the medical uses of marijuana. “As President, we will continue to focus on research to unlock the medical uses of marijuana to [sic] a Schedule 3 drug, and work with Congress to pass common-sense laws, including safe banking for state-authorized companies, and supporting states [sic] rights to pass marijuana laws.” The states’ right position of candidate Trump is in keeping with his position during his previous administration. During his presidency, he was at odds with his first Attorney General, Jeff Sessions, who was hostile to marijuana legalization and repealed the Department of Justice’s Cole memo, which provided protection to state-legal marijuana businesses from federal interference and enforcement.
Vice President Kamala Harris, on the other hand, is in favor of federal legalization. In her prior role as a US Senator, she was a cosponsor of the Marijuana Justice Act, which would have made marijuana legal at the federal level by removing it from the federal list of controlled substances. During her current tenure as vice president, Harris has encouraged the administration’s push to federally reschedule marijuana as well as the pardoning of Americans convicted of federal marijuana possession. On a recent appearance on the All the Smoke podcast, however, Harris clarified that “I just feel strongly people should not be going to jail for smoking weed” and “I just think we have come to a point where we have to understand that we need to legalize it and stop criminalizing this behavior.” This marked the first time that Harris publicly commented on marijuana policy since becoming the Democratic presidential nominee. Earlier this week, she added creating opportunities for Black Americans in the marijuana industry to her policy agenda. These actions indicate that she would go further than the Biden Administration on this issue during her potential presidency.
Statewide Initiatives
Six states this Election Day will ask voters for their input on marijuana policy via citizen-initiated ballot measures. Four of those states will allow voters to decide whether to legalize either recreational or medicinal marijuana, while one state looks to expand its current medical marijuana program, and another state looks to address labor within the industry. The citizen initiative process bypasses the state legislature to put statutes and constitutional amendments directly to voters to decide on. To appear on the ballot, supporters of an initiative must collect a certain number of valid signatures via petition and the signatures and text of the ballot measure are approved by the secretary of state.
Florida voters will get to weigh in on Amendment 3, which would amend the state constitution to allow adults over the age of 21 to possess, purchase, or use marijuana for recreational purposes. Florida legalized marijuana for medical use via ballot measure in 2016. The recreational ballot measure has had to overcome a legal challenge by the state attorney general to appear on the ballot; the Florida Supreme Court ultimately, however, deemed that the amendment met the necessary requirements to be put before voters. Driven by a citizen initiative petition, the ballot measure does not have the support of Florida Governor Ron DeSantis, who is actively campaigning against its passage. However, as a Florida resident, former President Trump has indicated that he will vote in favor of the state’s Amendment 3. For the ballot measure to be successful, a supermajority of voters will need to support it. Florida increased the threshold for amendments to pass from 50.1 percent to 60 percent in 2006, making it more difficult for ballot measures to be successful. Passage of Amendment 3 would be significant given the potential market with respect to Florida’s population, as well as the fact that it would be the first Southern state to legalize recreational marijuana.
The citizen initiative process bypasses the state legislature to put statutes and constitutional amendments directly to voters to decide on.
Supporters of legalizing recreational marijuana are hoping that the third time is the charm in both South Dakota and North Dakota. Voters in North Dakota legalized medical marijuana in 2016 but rejected recreational ballot measures in 2018 and 2022. Voters in South Dakota approved ballot measures for both medical and recreational marijuana in 2020, but the recreational measure was eventually struck down by the state Supreme Court for violating the state’s single subject requirement for ballot measures. A subsequent attempt in 2022 was defeated at the polls. Success in either or both states could demonstrate the perseverance of pro-legalization advocates as well as expand the presence of recreational marijuana legalization in the Midwest.
Nebraska voters will consider two medical marijuana-related ballot measures in November: Initiative 437 would legalize the use of up to five ounces of medical marijuana for patients, while Initiative 438 would establish the Nebraska Medical Cannabis Commission to regulate the production and sale of medical marijuana. While both initiatives were permitted to appear on the ballot, they do face an uncertain future even if approved by voters. A lawsuit has been filed challenging the petition signatures collected to get the initiatives on the ballot. Each initiative required 86,499 valid signatures to be certified; nearly 90,000 signatures were submitted for each initiative. The lawsuit alleges that at least 17,000 of these signatures should have been invalidated as the signers were not registered voters, duplicative signatures, or incomplete voter information. A petition collector also has been charged separately with allegedly falsifying petition signatures. The initiatives were allowed on the ballot as the case is working its way through the legal system, but the results may not be certified pending the decision of the court. A previous attempt in 2020 to legalize medical marijuana in the state was also enveloped in a legal challenge; in that case the Nebraska Supreme Court prevented the measure from appearing on the ballot, citing a violation of the state’s single-subject rule for initiatives.
Also in limbo is Arkansas’ marijuana ballot measure. Unlike the measures in Florida, South Dakota, North Dakota, and Nebraska, Arkansas’ Issue 3 would be an expansion of the state’s existing medical marijuana program, allowing patients to now grow marijuana plants at home, permitting telemedicine appointments for patient certification, expanding the medical professionals that can certify patients for the medical marijuana program, and eliminating the application and renewal fees for medical marijuana cards. The measure was provisionally placed on the ballot to meet printing deadlines, but the Arkansas secretary of state has since ruled that the total number of valid signatures submitted failed to meet the required threshold and votes on Issue 3 will not be counted. Supporters of the initiative have appealed to the state Supreme Court.
Finally, in Oregon voters will be asked to decide on Measure 119, which decides whether cannabis businesses will be required to submit a signed labor peace agreement to the state, affirming that management will remain neutral if labor organizations communicate with employees about collective bargaining. Failure to submit the labor peace agreement would result in automatic denial of licensure or renewal. Several other states, including California, Connecticut, New York, and Rhode Island currently require labor peace agreements in the marijuana industry. These requirements, however, have faced legal challenges.
Local Initiatives
On the local government front, many municipalities across the country also have marijuana-related ballot measures for voters to consider. Most states that have legalized marijuana have allowed for local decisions to opt-in or opt-out. Whether a given municipality will opt-out, or prohibit marijuana businesses from their jurisdiction, is often an issue that is left to direct democracy via the initiative process. That is the case in Kentucky, where more than 100 cities and counties have measures on the ballot this November to determine if they should opt out of the state’s medical marijuana program that was enacted in 2023. While Kentucky contains the largest slate of municipalities asking voters to determine whether to opt in or out of the marijuana business, this question is also being asked across the country in places like Colorado Springs, Colorado, and Howell, Michigan. The decision of municipalities to opt-out can have an impact on a state’s marijuana program by potentially creating “marijuana deserts” if most municipalities in a region choose to prohibit dispensaries, making it harder for people to legally access marijuana and, in the case of recreational marijuana, limit the potential tax revenue generated from state-licensed sales.
Decriminalization is often the first step taken by activists when working toward the ultimate goal of legalization and, while incremental, decreases the criminal justice consequences for those who use marijuana.
In Texas, three municipalities—Dallas, Bastrop, and Lockhart—will ask voters to decide whether marijuana should be decriminalized in their jurisdiction. Decriminalization would not make marijuana legal but would prohibit local law enforcement from arresting people for simple low-level marijuana possession unless it is part of a high-priority felony investigation for violent crimes or narcotics. If enacted, Dallas would be the largest city in Texas to decriminalize. While the state has not legalized marijuana for medical or recreational purposes, there has been a recent push in some Texas municipalities to decriminalize the drug. Voters in Austin, Denton, Elgin, Harker Heights, Killeen, and San Marcos all supported decriminalization in their respective jurisdictions in the recent elections, while San Antonio voters rejected a similar initiative in 2023. The decision to decriminalize has not been without repercussions, however, as this has set these municipalities on a collision course with the state government. Texas Attorney General Ken Paxton sued all five cities to block the implementation of their decriminalization measures, claiming a violation of state law. County district judges dismissed the lawsuits against Austin and San Marcos, while the lawsuits against Denton, Elgin, and Harker Heights are still working their way through the legal system. Decriminalization is often the first step taken by activists when working toward the ultimate goal of legalization and, while incremental, decreases the criminal justice consequences for those who use marijuana.
Finally, in Littleton, Colorado, voters will be asked to approve or deny a proposed increase in the special sales tax on marijuana. If implemented, the special sales tax on marijuana and marijuana products would increase by 4 percent, from 3 percent to 7 percent. Purchasers would still also pay the regular sales tax of 5.25 percent, bringing the combined tax rate to 12.25 percent. While municipalities are interested in generating more revenue from marijuana sales, they must also weigh whether increasing taxes will incentivize customers to go to neighboring communities for cheaper marijuana.
Conclusion
While marijuana was a relatively taboo political topic in the past, as legalization and consumption have become more mainstream voters have increasingly been asked to weigh in on the expansion and implementation of marijuana policy. This is now an issue that touches all levels of government, from federal policy, to state laws and constitutions, to local economies and criminal justice. The 2024 election provides a snapshot of many of the issues at play today in marijuana policy and puts voters front and center in making these decisions.
ABOUT THE AUTHOR
Heather Trela is director of operations and a fellow at the Rockefeller Institute of Government.