Ten years ago, Washington and Colorado became the first states to legalize marijuana for adult use when voters approved ballot measures in 2012. Since then, a total of 19 states and the District of Columbia have legalized recreational marijuana. And while federal marijuana legalization is seemingly stopped in its tracks, another five states are poised to change cannabis policy in the midterm elections next week, potentially making adult-use marijuana legal for more than half of the nation.
According to an April 2021 Pew Research Center survey, 91 percent of US adults favor some form of marijuana legalization. Forty-three percent of US adults currently live in a jurisdiction that has legalized marijuana for adults over 21; sales of adult-use and medical marijuana products hit $25 billion in 2021 and, by one Wall Street estimate, could reach $100 billion by 2030. And last month, President Joe Biden announced that he’s taking steps to overhaul America’s federal cannabis laws, starting by pardoning everyone convicted of simple marijuana possession at the federal level.
Notably, four states with legal marijuana on next week’s ballot are traditionally conservative: Arkansas, Missouri, North Dakota, and South Dakota voters will all consider measures legalizing cannabis, while Maryland voters are widely expected to approve legalization.
“Four of the five states voting have two Republican senators and either completely or majority Republican congressional delegations in the house,” says BOWL PAC founder Justin Strekal, a longtime cannabis lobbyist in Washington, DC, and the former political director for the National Organization for the Reform of Marijuana Laws (NORML). “Voters deciding on adult use could significantly change the calculus for their federal representatives as to how to approach cannabis at the national level.”
Here’s a quick overview of the measures that voters will decide on at the ballot box.
Arkansas: Issue 4
Arkansas voters approved medical marijuana in 2016. Now they’ll consider legalizing cannabis for adult use with Issue 4, which would modify the state’s existing medical program.
The Responsible Growth Arkansas campaign turned in over 192,000 signatures in July to qualify for the November ballot. Following an attempt by the state Board of Elections to deny certification to the measure by declaring its wording insufficient, the campaign filed a lawsuit with the Arkansas Supreme Court in August. After weeks of uncertainty, the court ruled in favor of Responsible Growth Arkansas on September 22, clearing the way for the vote.
A September survey by Talk Business and Politics and Hendrix College found that 58.5 percent of Arkansas voters are in favor of the ballot measure, with 29 percent opposed and 13 percent undecided. However, an alliance of progressive cannabis advocates, religious leaders, and pro-Trump politicians — including Republican Arkansas Sen. Tom Cotton — is staunchly opposed to legalization. Pro-cannabis critics claim that the measure, which is largely funded by the medical cannabis industry, would allow existing medical marijuana businesses to dominate the adult-use market, and reward industry backers of the measure by limiting new competitors.
The proposed law would allow adults 21 and over to purchase and possess up to one ounce of cannabis from licensed retailers. It would also repeal residency requirements to qualify for the state’s medical marijuana program. Home cultivation would not be permitted.
The Arkansas Alcoholic Beverage Control Division would oversee regulation of the program and issuing licenses; the state’s existing 40 medical cannabis dispensaries would be permitted to serve adult consumers starting on March 8, 2023. Each would also be allowed to open another retail location for recreational marijuana sales, and 40 more adult-use retailers would be awarded new licenses through a lottery system.
Criminal background checks would no longer be required for people who own less than 5 percent of a cannabis business, but there are no social justice provisions attached related to expungement or social equity.
The amendment would repeal taxes on medical marijuana while allowing the state to charge a 10 percent sales tax on non-medical sales at dispensaries. Thirty percent of tax revenues would be divided between law enforcement, university research, and state drug court programs, with the remainder going to the state general fund.
A recent analysis shows Arkansas could see nearly $1 billion in annual sales and more than $460 million in tax revenue over five years if voters approve cannabis legalization.
Maryland: Question 4
Earlier this year, Maryland legislators voted to put a marijuana legalization referendum on the November ballot. Question 4 asks: “Do you favor the legalization of the use of cannabis by an individual who is at least 21 years of age on or after July 1, 2023, in the State of Maryland?”
A yes on Question 4 would make recreational cannabis legal in Maryland, where medical marijuana has been legal since 2013, by amending the state constitution. The legislation would make the purchase and possession of up to 1.5 ounces of cannabis legal for adults 21 and older, and would remove criminal penalties for possession of up to 2.5 ounces. In addition, adults would be allowed to grow up to two plants for personal use and gift cannabis legally.
Past convictions for conduct made legal under the proposed law would be expunged, and people currently serving time for cannabis offenses would be eligible for resentencing, while those with convictions for possession with intent to distribute would be able to petition to have their records expunged three years after serving their time.
Prospects for the referendum passing look good, with a recent Washington Post and University of Maryland poll showing that 73 percent of registered voters support legalization. If the amendment passes, Maryland will join neighboring Washington, DC, as a legal adult-use jurisdiction; cannabis possession and home growing have been legal for adult DC residents since 2015, although Congress has blocked retail sales.
Missouri: Amendment 3
Missouri passed legislation decriminalizing cannabis for personal use in 2014, and voters approved a medical marijuana program four years later. Now full legalization is on the ballot in Missouri with Amendment 3 — but after little public resistance for months, the proposal faces criticism from several factions as a coalition of officials and organizations have banded together to urge voters to reject the initiative.
The group Legal Missouri 2022, which is behind the proposed constitutional amendment, says it was written to provide a “level playing field” for the industry while promoting social equity, Marijuana Moment reported. The initiative is endorsed by advocacy organizations including the ACLU of Missouri and all six chapters of Missouri NORML.
Opposition to the measure includes false claims from a conservative PAC that it’s an attempt to insert critical race theory into the constitution by creating a position of “chief equity officer,” and the Missouri Democratic Party alleging that it “may negatively impact minorities, people of color and low-income earning Missourians.”
Amendment 3 would make it legal for adults 21 and older to purchase and possess up to three ounces of non-medical cannabis. It would also allow registered home cultivation. Existing medical dispensaries would be licensed to serve adult consumers with a dual license.
Tax revenue from recreational cannabis sales would be used to expunge the records of people convicted of nonviolent cannabis offenses; it would also subsidize veterans’ health care, drug treatment, and state public defender programs.
Regulation would be overseen by the Department of Health and Senior Services, with microbusiness licenses issued through a lottery system. Priority for those licenses would be given to low-income applicants and people disproportionately harmed by the war on drugs.
North Dakota: Measure 2
A marijuana legalization measure in North Dakota would allow adults 21 and older to purchase and possess up to one ounce of cannabis and four grams of cannabis concentrate, as well as cultivate up to three plants for personal use, as long as the product from those plants is stored in the same location.
A coalition called New Approach ND collected signatures for Measure 2, which would require the state to create a regulatory program by October 1, 2023. The agency would also oversee cannabis business licensing for a maximum of seven cultivation facilities and 18 retailers. The initiative stipulates that no individual or entity would be permitted to own more than one cultivation facility or four retail locations to mitigate the risk of large companies monopolizing the cannabis market.
Measure 2 would put child custody protections into place for parents who use cannabis in compliance with state law, meaning they would not lose parental rights due to cannabis consumption. It would not provide a pathway to record expungements for marijuana convictions.
The state’s 5 percent sales tax would apply to cannabis products; no additional tax would specifically be imposed. Manufacturers would pay a $110,000 registration fee every two years, while retailers would pay $90,000; those funds would support the implementation and administration of the adult-use program.
Polling data on cannabis reform is scarce in North Dakota, but a 2018 survey found that 51 percent of residents backed legalization.
South Dakota: Measure 27
South Dakota voters approved cannabis legalization for adult use in 2020; however, the state Supreme Court invalidated the initiative. This year, voters have another opportunity to weigh in on legalization, but a recent poll shows that public opinion may have shifted on the issue, with a majority of respondents now opposed to cannabis reform.
In 2020, 54 percent of South Dakotan voters approved legalizing cannabis. However, following a legal challenge led by Republican Gov. Kristi Noem, the state Supreme Court invalidated the vote on procedural grounds, upholding a ruling that found the ballot measure violated the state’s single-subject rule for constitutional amendments, meaning it was not narrowly focused enough to meet the electoral standard.
This time, the initiative has omitted provisions around taxes and regulations; those decisions would be up to the legislature. The advocacy group South Dakotans for Better Marijuana Laws turned in more than 20,000 signatures to qualify Measure 27 for the November ballot.
If approved by voters, Measure 27 would allow adults 21 and older to purchase and possess up to an ounce of cannabis, as well as grow up to three plants for personal use. It doesn’t touch on regulatory policies concerning taxing cannabis sales, licensing, or social equity.
The measure includes civil penalties for violating provisions related to public consumption or growing more plants than permitted. Employers would be allowed to prohibit cannabis use by workers, and state and local governments could continue to ban marijuana-related activities made legal under the initiative.
All in all, it’s impossible to forecast what voters will decide this week, but the conversation about legalizing marijuana has come a long way in 10 years. “It’s remarkable,” says Strekal, the cannabis lobbyist. “Should two or more of the states that have it on the ballot pass, then we will have more than 50 percent of Americans living in a state that has legalized adult-use cannabis.”
