The only significant marijuana legalization initiative on the ballot this November is in Ohio.
Issue 3 is a first in many respects: the first marijuana reform campaign funded almost entirely by “investors” who would benefit financially from the initiative, the first initiative to restrict commercial production to a limited number of sites owned by the major investors in the ballot initiative, and the first to appear simultaneously on the ballot with another initiative — Issue 2 — that seeks to nullify the legalization initiative. If Issue 3 wins, it would make Ohio the first state to legalize marijuana without first legalizing it only for medical purposes.
Polling for Issue 3 shows a dead heat, but public opinion polls are notoriously unreliable in such low-turnout elections, so no one really has a good sense of what will happen on Election Day.
As executive director of the Drug Policy Alliance, or DPA, which has played leadership or support roles in most medical and nonmedical marijuana legalization initiatives over the past two decades, I’ve been urged by diverse allies, both within Ohio and nationally, to endorse the initiative, and by others to oppose it. I’ve chosen to do neither, not just because my colleagues and I are torn, but also because I think DPA’s optimal role is to offer a well-reasoned assessment of what’s at stake with this initiative.
Inside Issue 3
Most of Issue 3 is in fact a very good marijuana legalization initiative — and, full disclosure, DPA provided modest input into the drafting, at the request of the Issue 3 campaign, with the understanding that our assistance would not represent an endorsement of the initiative.
Issue 3 would allow adults 21 and older to grow up to four marijuana plants at home, buy up to an ounce at retail outlets around the state, provide special protections for medical patients, and significantly reduce the number of people being arrested for marijuana possession (who, in Ohio as elsewhere, are disproportionally African-American). Thousands, possibly tens of thousands, of legal jobs would be created — and tax revenues would total tens, possibly hundreds, of millions of dollars annually.
The one big problem with the initiative, however, is that it restricts commercial marijuana production to the 10 properties owned by the principal investors in the initiative. That provision has some similarity to restrictions found in other states; to take just one example, the medical marijuana law approved last year in New York initially restricts, at Gov. Andrew Cuomo’s insistence, all production of marijuana to five licensees and no more than 20 dispensaries, an absurd restriction in a state with almost 20 million people. While other states have given medical marijuana providers a head start on securing licenses to sell to nonmedical consumers, they still allow others to compete in the market.
Ohio’s initiative, however, is unprecedented, and profoundly problematic, in creating a constitutionally mandated oligopoly — modeled after a successful casino legalization initiative in 2009 — for the specific benefit of the 10 major investors.
That means that — unlike in New York, where the five licensees were selected through a competitive process — the restriction can only be modified by a subsequent amendment to the state constitution (with the caveat that Issue 3 allows new competition if the 10 properties fail to satisfy the market).
It’s the sort of overreach that sticks in the craws of both liberals and conservatives; government-approved oligopolies may make sense with respect to public utilities and national security but marijuana? There’s something about a constitutionally mandated oligopoly for an agricultural product that just seems un-American.
With that said, I must admit that I’m rooting for Issue 3 to win, mostly because a victory on Election Day 2015 would significantly accelerate the momentum toward ending marijuana prohibition nationwide.
Given Ohio’s historic prominence in presidential elections, its somewhat conservative reputation and Republicans’ domination of state government, a majority vote to legalize marijuana would catapult the issue into mainstream national politics.
With marijuana legalization initiatives on the ballot in roughly half a dozen states in 2016, and medical marijuana on the ballot in two or three more, the issue will surely be a part of presidential candidate debates over the coming year, but a win in Ohio next week would raise eyebrows and focus attention like nothing else.
Potential outcomes
Frankly it doesn’t even matter, from a national perspective, if voters approve both Issue 3 and Issue 2 — the competing constitutional amendment that the Legislature put on the ballot to try to nullify the legalization measure if it passes.
Legislators framed their initiative as an anti-oligopoly measure but designed it to undermine all of Issue 3, not just the oligopoly provision. No one knows what will happen if both initiatives win next week, and some experts think the conflict will ultimately be addressed by the Ohio Supreme Court. But what will matter most from a national political perspective is not whether Issue 3 is ever implemented but the simple fact that Ohio voters approved the legalization of marijuana.
The principal concern raised by allies outside Ohio is that a victory for Issue 3, especially if Issue 2 loses, would encourage the filing of similar measures around the country. I think that’s a modest risk at best. None of the legalization initiatives enacted to date — in Colorado, Washington, Oregon and Alaska — contains such a provision nor do any of the initiatives headed to the ballot in 2016 — in California, Nevada, Arizona, Maine, Massachusetts and possibly Michigan.
Within Ohio, it’s not clear how the provision will fare in the courts, and the Legislature can always try to undercut the oligopoly provision in subsequent years. Outside Ohio, any copycat effect will likely be trumped by a sense of distaste and outrage regarding that provision.
We’re entering a new era of marijuana law reform in which the influence of funders and organizations driven primarily by concerns for civil rights and personal liberties, and not by any financial interest in legalizing marijuana, will be superseded by people and corporations driven largely by their pursuit of legal profits.
Ohio’s initiative foreshadows what lies ahead, not in 2016 but years thereafter. That’s a wonderful development insofar as it means that legal profit seekers will play a leading role in ending the pervasive and racially disproportionate arrests, illegal markets and many other harms of marijuana prohibition. But legislators, citizens and advocates for civil rights and liberties as well as public health and equitable economic development will need to do all we can to ensure that post-prohibition policies reflect the values that have driven marijuana reform until now.
