In the week since Proposition 19, the California marijuana legalization initiative, was defeated 46% to 54%, the post-mortem analyses have been coming down fast and furious. Even in defeat, Prop 19 continues to generate mountains of verbiage, and advocates will tell you that's just one of the positive outcomes generated by the initiative.
Harvard economist Jeffrey Miron, a libertarian and academic advocate for legalization, asks Why Did California Vote Down Pot? Miron answers that Prop 19 overreached with its arguments (on tax revenues and ending the Mexican drug war) and its provisions (limiting employers' rights). In Post-Prop 19, the Los Angeles Times, in a piece whose tone hints at support for legalization in principle, blames initiative organizers for presenting the public with "a badly drafted mess."
Steve DeAngelo of the Harborside Health Center in Oakland warns that Voters Won't Approve Legal Pot Until Advocates Earn Their Trust, and argues the movement should be concentrating on developing a well-regulated and demonstrably safe medical marijuana cultivation and distribution system to allay the fears of parents and others concerned about the Wild West aspects of California's dispensary system. Interestingly, the 11 counties surrounding San Francisco Bay, where local authorities have most promptly moved to put regulations in place, are the only counties where a majority of voters did vote yes on 19.
Pollwatcher Nate Silver wonders Are Parents Just Saying No to Marijuana Legalization?, pointing to national survey data suggesting that being a parent drops support for legalization by 10 to 15 percentage points. Atlantic magazine business and economics editor Megan McArdle reprises ongoing arguments in Will Pot Be Legal? and sides with Silver on the role of parents.
And that's just a representative sample of the debate over why Prop 19 lost. For Prop 19 supporters, that ongoing argument is just more evidence that the measure has caused a seismic shift in the political discourse on pot.
"We started putting out the message two months ago that Prop 19 is a winner," said Drug Policy Alliance head Ethan Nadelmann. "It transformed the debate. Compare where we are now to where we were two years ago. There is a consensus that between the messaging that came out, the positive impact on the public dialogue, the mainstream players coming out with endorsements, and getting more votes than Meg Whitman or Carly Fiorina, Prop 19 was a major step forward," he said.
"What was significant was George Soros coming in with that contribution and his op-ed," Nadelmann continued. "Soros has been a major supporter of marijuana decriminalization, but he was always ambivalent about legalization, in part because of concerns about the impact on young people. Prop 19 being on the ballot and his being asked by so many people what he was going to do encouraged him to think more deeply about it. That he decided to write that piece and make that contribution, even in late October, when he knew the odds of winning were not great, is important for the future."
Even though Soros didn't come through until the final week of the campaign, and the campaign struggled financially (even while outdistancing the opposition), Nadelmann didn't see that a reason the measure lost. "I'm skeptical that substantially more money earlier on would have clinched this," he Nadelmann. "What was really problematic was the turnout. Young people did not show up en masse."
He wasn't the only one looking at turnout. "In a midterm election year like this with a Republican sweep nationally, we didn’t see the types of voters who favor marijuana legalization coming to the polls," said Mike Meno, communications director for the Marijuana Policy Project.
"The only way to respond to a loss is to learn from it," said NORML founder Keith Stroup. "There were two or three specific areas where our opponents were effective, specifically on the employer-employee issue. You had the Chamber of Commerce saying employers couldn’t fire someone coming to work stoned, and some of the law enforcement folks got traction with the idea that roads would be filled with stoned drivers. We have to be clear that if someone is stopped for driving while impaired and they pass the alcohol test, that police have the right to take them in for a drug test," he said.
That position isn't likely to sit well with the veteran stoner demographic, who will argue that marijuana really doesn't impair driving ability that much among experienced tokers. Better to test for actual impairment than the presence of metabolites, especially if impairment is assumed under a "zero tolerance" DUID law, but that's going to be a hard sell for the general public.
"I am among those people who felt that even though we lost, Richard ended up doing a good thing for the movement," said Stroup. "I don't think legalization was ever taken seriously by politicians and the press until Prop 19 came along. It was probably worth the three or four million dollars spent to force marijuana legalization into the mainstream."
"One of the things that really caught on with the opposition and helped spread seeds of doubt in voters' minds was the local control aspect, allowing different counties to decide whether to regulate," said Meno. Ironically, that provision was a concession designed to blunt potential opposition by allowing more conservative areas to opt out.
"The polling shows that workplace concerns and fears of driving under the influence helped motivate the no vote," Meno added. "Those same concerns apply to alcohol, but they're not arguments for making alcohol illegal. With sensible public education, these issues can be addressed. We need to deal aggressively and proactively with the issues around driving while impaired so there isn't the really poor media coverage we saw this time. That gave people the ability to leap from legalization to impaired driving. We need to address these fear-based arguments," he said.
Even the Prop 19 campaign now says maybe the workplace language wasn't a good idea. "I remember having an uneasy feeling about the employment part, but one of our more conservative consultations was for it," said Richard Lee, the man behind Prop 19. "I should have listened to my gut, but it's hard not to want employees to be free from uncalled for drug testing."
"This result was predictable from the early polls," said Dale Gieringer, head of California NORML, which endorsed Prop 19 but was skeptical about its prospects from the beginning. "One of the problems was that legalization scores in the low fifties in the polls, and you need it in the sixties to pass. In any initiative, there are particulars that people object to, and support begins to erode, and this was criticized from all sides."
The California public is ready to go along with legalization if presented with a plan that makes sense and will actually do what it promises, but Prop 19 wasn't that plan, Gieringer said. "The closer you looked at Prop 19, the less it offered in immediate benefits to the state," he argued.
"As soon as any city or county tried to implement 19, they would get hit with a federal injunction, which the feds would certainly win," Gieringer said. "So, no tax and regulate, no tax revenues, and you get a bunch of lawsuits with the feds. It wasn't going to solve the drug war in Mexico, it wasn't going to save all that much in arrests, especially since Schwarzenegger signed that decriminalization bill, and a lot of marijuana offenses have to do with exporting out of state, and that would remain. Prop 19 would have been the first step in a much larger battle going on for years before you really get those benefits, and voters didn't trust that those benefits would actually come."
"We've lost a lot of battles at NORML," Stroup laughed wryly. "But what is important when you lose is what you learn. We came away from California knowing we can do it better, and we will do it better. I think in 2012, the whole West Coast will be proposing that we legalize marijuana."
Richard Lee and his crew are already making plans to put together a new initiative in 2012, but if California's recent history is any indicator, they are unlikely to be the only ones. If one or more of them make it to the ballot in 2012, they better have learned the lessons of 2010.