Yesterday, voters in two more states legalized marijuana for the first time, bringing the total number of states defying federal cannabis prohibition to 36, while voters approved recreational legalization in a number of states, bringing the total that have done so to 15.

Last month, Virginia became the 34th state with legal marijuana when its first dispensary opened. Virginia’s medical marijuana program slowly evolved with incremental regulatory change. Over time, the state broadened the definition of products cannabis patients can obtain and possess. According to Marijuana Moment, “Organizations like NORML and the Marijuana Policy Project now consider the state to be the 34th in the U.S. to meet its definition for having an effective medical marijuana system.”

Today, Mississippi and South Dakota became the 35th and 36th states to legalize marijuana.

South Dakota

South Dakota voters overwhelmingly approved Measure 26 legalizing medical marijuana by a 69.2-38.8 margin. The ballot measure establishes a medical marijuana program for patients with qualifying conditions. Patients will be able to possess up to three ounces of marijuana and can grow up to three plants. The measure also establishes a licensing program for commercial production of medical marijuana and sales through licensed dispensaries.

Voters also approved Amendment A 53.4-46.6 to legalize marijuana for adult use. The measure amends the state constitution to “legalize regulate and tax marijuana, and to require the legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use.”

South Dakota is the first state to legalize medical and recreational marijuana at the same time.

Mississippi

Mississippi had a choice between two competing ballot measures. Voters approved Initiative 65 by a 68-32 margin.  A citizen initiative led by Mississippians for Compassionate Care put the measure on the ballot. Activists turned in more than 214,000 signatures. The measure allows patients suffering from 22 qualifying conditions to access medical marijuana with the recommendation of a physician. Patients will be allowed to possess up to 2.5 ounces of cannabis per 14-day period.

Initiative 65 was in competition with Alternative 65A. The state legislature put the constitutional amendment on the ballot with the passage of HC39. It had far less detail and has more restrictions than the citizen initiative. The legislature’s passage of a competing ballot initiative was widely seen as an attempt to prevent the legalization of medical marijuana in Mississippi. According to Forbes, Gov. Phil Bryant (R) voiced opposition and suggested that the legislature propose an alternative.

OTHER STATES

Three other states expanded marijuana legalization through ballot measures.

Arizona

Arizona voters passed Prop. 207 to legalize cannabis for adult use by a 59.8-40.2 margin. The new law allows limited marijuana possession, use, and cultivation by adults 21 or older. It also sets up a tax and regulatory structure for the cultivation and sale of cannabis. The ballot measure includes a provision to allow the expungement of marijuana offenses.

Arizona voters legalized medical marijuana in 2010.

Montana 

Montana voters approved Ballot issue I-190 by a 56.6-43.4 margin. The statutory measure legalizes the possession and use of limited amounts of marijuana by people 21 and older. It also establishes a licensing, taxation and regulatory scheme for cannabis sales and cultivation. I-190 includes a process for resentencing and records expungement for past marijuana offenses.

Voters also approved a separate measure, CI-118, by a 57.7- 42.3 vote. The initiative amends the state constitution to allow the legislature or a citizen initiative to establish the legal age of purchasing, consuming, or possessing marijuana. In effect, it will set the legal age for recreational marijuana at 21.

Montana legalized medical marijuana in 2004 through a ballot initiative.

New Jersey

New Jersey voters said “yes” to  Public Question No. 1 by a 66.9-33.1 margin. The ballot measure legalizes the possession, use and cultivation of marijuana by persons 21 and older, along with the manufacture and retail sales of cannabis products. The Cannabis Regulatory Commission that currently oversees the state’s medical-marijuana program will manage the regulatory scheme.

Public Question 1 was passed and place on the ballot by the New Jersey legislature.

New Jersey legalized medical marijuana in 2010. The program languished under Gov. Chris Christie, a staunch opponent of cannabis. When Gov. Phil Murphy took office, he loosened requirements and expanded the number of qualifying medical conditions. The New Jersey legislature expanded the program further in 2019.

NEXT UP?

New Hampshire took a small step toward legalizing recreational marijuana during the 2020 legislative session. The House considered HB1663, a bill that would have legalized cannabis and created a regulatory scheme. The House  Criminal Justice and Public Safety didn’t approve the measure, but it voted 7-4 to form an interim study committee to produce a report on future legislation. This could create a foundation for the legalization of marijuana in a future legislative session.

Meanwhile, New York Gov. Andrew Cuomo (D) recently said legalizing marijuana represents a key way the state can recover economically from the coronavirus pandemic. During a virtual event, Cuomo said that the state will soon legalize marijuana for adult use.

“Soon, because now we need the money,” he said, according to a recording that was obtained by USA Today Network. “I’ve tried to get it done the last couple years. There are a lot of reasons to get it done, but one of the benefits is it also brings in revenue, and all states—but especially this state—we need revenue and we’re going to be searching the cupboards for revenue. And I think that is going to put marijuana over the top.”

Legislative efforts to legalize medical marijuana in Tennessee continue. Two bills (SB2441/HB2741) were introduced in February 2020 and will be taken up again later this year.

EFFECT ON FEDERAL PROHIBITION

State efforts to legalize cannabis continue despite federal prohibition.

Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains the complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

The legalization of marijuana for medical or recreational use removes a layer of laws prohibiting the possession and use of marijuana. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By legalizing cannabis, these states can essentially sweep away at least some of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

A GROWING MOVEMENT

These five states join a growing number of states simply ignoring and defying federal prohibition – nullifying it in practice.

Washington, Colorado, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019.

With 36 states allowing cannabis for medical use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.

 


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