State Drug Reform Initiatives on the Ballot Tomorrow [FEATURE]

The battle for the presidency is dominating the headlines, but there are other reasons to get to the polls, too. 

With Election Day less than 24 hours away, all eyes are on the tightly contested presidential race, but drug reforms of various stripes are on the ballot in several states, including marijuana legalization in three states, a marijuana union initiative in one state, a paired set of medical marijuana initiatives in another, and a psychedelic decriminalization initiative in yet another. And in one state, we will see an effort to roll back criminal justice and drug policy reforms approved by voters a decade ago.

Let's take a look at what the various initiatives would do, how the campaigns are shaking out, and what their prospects are now that the election is nigh:

Marijuana Legalization

Florida

Organized by Smart & Safe Florida and largely financed to the tune of tens of millions of dollars by current multi-state medical marijuana operators Trulieve, Amendment 3 would legalize marijuana via a constitutional amendment. Under Florida law, that means the initiative needs 60 percent of the vote to win on Election Day.

According to the Florida Division of Elections, Trulieve alone has contributed $142 million for the campaign. That makes the Florida campaign the most well-funded marijuana ballot measure in US history. Meanwhile, two political action committees aligned with Florida Gov. Ron DeSantis (R), Keep Florida Clean and the Florida Freedom Fund, have raised only $14.5 million.

Trulieve, which itself is poised to benefit hugely from a legalization plan that positions it to move into the adult-use market immediately is responsible for $65 million of the nearly $72 million raised by the campaign. That makes the Florida campaign the most well-funded marijuana ballot measure in US history.

The initiative would legalize the possession of up to three ounces of pot by people 21 and over, as well as up to five grams of concentrates. There is no provision for home cultivation. Existing medical marijuana operations, e.g. Trulieve, could sell to adults for personal use. It would be up to the legislature to allow anyone other than existing medical marijuana dispensaries to get licensed for adult sales.

The most recent polling suggests the initiative will win. A September Emerson College/The Hill poll had support at 63.6 percent, while an October University of North Florida poll had support at 66 percent.  

Most earlier polls have shown Amendment 3 winning in November, and the initiative campaign has far exceeded any organized opposition in terms of funding. Still, this is going to be a nail-biter.

North Dakota

A marijuana legalization initiative known officially as Question 5 qualified for the November ballot earlier this month. It would legalize the possession of up to an ounce of marijuana by people 21 and over. The measure also legalizes the possession of up to four grams of concentrate and 1500 milligrams of "cannabinoid products," and allows for the home cultivation of up to three plants.

It contains no provision for a legal marijuana marketplace, the creation of which would be up to the state legislature if it so chooses. Nor does it contain any social equity provisions common in other legal marijuana states.

Voters in the state have twice defeated previous legalization efforts, in 2018 and 2022. The Republican-led House passed a legalization bill in 2021, but that was killed in the Senate.

The possession of up to a half ounce of marijuana is already decriminalized, but the state still had more than 4,400 marijuana possession arrests last year.

The sole recent survey of voter sentiment, a North Dakota Monitor poll, had decent but not great news for the campaign. It showed the measure with 45 percent support, with 40 opposed, and 15 percent undecided. If those numbers are accurate, the measure could win if the undecideds break two-to-one in its favor. Another unquantifiable factor is that this is the first time a North Dakota legalization initiative has come in a presidential election year, which could goose turnout and boost the measure's prospects.

South Dakota

South Dakotans for Better Marijuana Laws hopes the third time is the charm for its Measure 29 marijuana legalization initiative. Activists saw a 2020 legalization initiative win at the polls, only to be thrown out by the state Supreme Court acting at the best of MAGA Gov. Kristi Noem (R). They tried again in 2022 but lost in that off-year election.

The initiative would legalize the possession of up to two ounces of marijuana and the home cultivation of up to six plants but, in a bid to avoid the kind of constitutional complications that undid the 2020 initiative, does not address legal marijuana commerce. That would be up to the legislature.

It also contains protections for employers, allowing them to discriminate against legal marijuana users, and for property owners, allowing them to forbid marijuana use or possession on their premises. The bare-bones initiative contains no social equity provisions.

The limited polling available suggests the initiative campaign is in for an uphill fight, with a fall 2023 poll finding 45 percent in favor, 42 percent opposed, and 13 percent undecided. But with the state Republican Party this year loudly opposing the initiative, a June poll showed only 42 percent support, with 52 percent opposed. The most recent polling, an October Emerson College/The Hill poll still had the measure losing, but the gap was narrowing. It had support at 45 percent and opposition at 50 percent. Campaigners would need every undecided voter to break for legalization to win on Tuesday. 

Organizers hope a turnout boost from the presidential election and an abortion rights initiative also on the state ballot will get them over the top.

Marijuana and Unions

Oregon

United Food & Commercial Workers (UFCW) Local 555 spent $2 million to ensure that its Measure 119 initiative making it easier for marijuana industry workers to organize got on the ballot.

Similar to "labor peace" laws for the marijuana industry in California, Connecticut, New Jersey, New York, and Virginia, Measure 119 would require pot shops and processors to sign labor peace agreements with labor unions representing or attempting to organize their workers. Such agreements mean that the business agrees to remain neutral concerning the labor organization's representatives communicating with the employees of the applicant or the licensee about the employees' rights.

If marijuana business applicants or licensees fail to submit a signed labor peace agreement, the Oregon Liquor and Cannabis Commission can deny the application for licensing. Similarly, if a labor peace agreement is ended, licensees would have to submit a new agreement within 30 days or face a license suspension and/or fine.

An October Public Policy Polling survey had the measure on the cusp of victory, with support at 49 percent, opposition at 29 percent, and a large number of undecideds—23 percent. While campaigners much prefer to be above 50 percent as Election Day approaches, in this case, they will need only a tiny fraction of the undecideds to eke out a victory.

Medical Marijuana

Nebraska

It isn't quite official yet, but Secretary of State Bob Evnen’s (R) office announced Friday that a paired set of medical marijuana initiatives have enough signatures to appear on the November election ballot. However, the initiatives are not officially certified until county officials statewide complete the signature verification and certification process. 

The group behind the effort, Nebraskans for Medical Marijuana, went for the bifurcated approach in a bid to avoid constitutional challenges at the state Supreme Court that derailed earlier initiative efforts. 

The first measure, the Nebraska Medical Cannabis Patient Protection initiative, would create a doctor-patient system for medical marijuana to protect patients from arrest. It would allow patients to possess up to five ounces of medicine.  

The second measure, the Nebraska Medical Cannabis Regulation initiative, would create a framework for a regulated medical marijuana industry in the state. The plan envisions a commission to create rules and regulations for a commercial marketplace, with licensed businesses before October 1, 2025. 

Psychedelics

Massachusetts

After a two-part signature-gathering drive, with the legislature given (and refusing) a chance to act in the interim, a psychedelic legalization initiative, the Natural Psychedelic Substances Act, has qualified for the November ballot. It will appear on the ballot as Question 4.

While the measure envisions the therapeutic administration of psychedelics, as has been approved by voters in Colorado and Oregon, it also allows for the home cultivation and use of psychedelics. According to the state attorney general's summary of the measure:

"This proposed law would allow persons aged 21 and older to grow, possess, and use certain natural psychedelic substances in certain circumstances. The psychedelic substances allowed would be two substances found in mushrooms (psilocybin and psilocyn) and three substances found in plants (dimethyltryptamine, mescaline, and ibogaine). These substances could be purchased at an approved location for use under the supervision of a licensed facilitator. This proposed law would otherwise prohibit any retail sale of natural psychedelic substances. This proposed law would also provide for the regulation and taxation of these psychedelic substances."

"This proposed law would license and regulate facilities offering supervised use of these psychedelic substances and provide for the taxation of proceeds from those facilities' sales of psychedelic substances. It would also allow persons aged 21 and older to grow these psychedelic substances in a 12-foot by 12-foot area at their home and use these psychedelic substances at their home. This proposed law would authorize persons aged 21 or older to possess up to one gram of psilocybin, one gram of psilocyn, one gram of dimethyltryptamine, 18 grams of mescaline, and 30 grams of ibogaine ("personal use amount"), in addition to whatever they might grow at their home, and to give away up to the personal use amount to a person aged 21 or over."

Massachusetts for Mental Health Options, the campaign committee behind the initiative, has raised nearly $4 million, with contributions from Dr. Bronner's Magic Soaps and the New Approach Advocacy Fund, and spent most of it on getting on the ballot. 

An October Emerson College/WHDH-TV poll had the measure at 50 percent, with 44 opposed and 6 percent undecided, while a September WBUR/Commonwealth Beacon poll had 42 percent in favor and 40 percent opposed. This initiative could be poised for victory, but it will be a nail-biter. 

Criminal Justice

California

A decade ago, state voters approved Proposition 47, which reduced penalties for some drug and other criminal offenses. Now, the Republican-backed Homelessness, Drug Addiction, and Retail Theft initiative -- on the ballot as Proposition 36, will try to roll that by making some drug possession and theft charges felonies.

Prop 47 reduced most drug possession charges to misdemeanors and raised the threshold for property crimes to $950 for them to be charged as felonies. With a new category of crime, "treatment-mandated felony," Prop 36 would mandate drug treatment or prison for people with repeated drug possession convictions for certain drugs, including fentanyl and methamphetamine, and make third-offense theft a felony regardless of the amount. If those people who opt for treatment instead of prison fail to finish treatment, they could face up to three years in prison.

In the decade since Prop 47, prosecutors, police, and big box retailers have blamed Prop 47 for increased property crimes and homelessness (which is much more convenient than blaming housing shortages and high rental prices). Supporters say that drug dependence pushes people to the street, and increasing the penalties for drug possession is the only way to force people into treatment.

Those supporters include Walmart, Target, Home Depot, the California District Attorneys Association, the California Correctional Peace Officers Association, and the California Republican Party. They have raised more than $11 million for the campaign.

The opposition includes Gov. Gavin Newsom (D), the state Democratic Party, the Alliance for Safety and Justice, and the ACLU of Northern California. The opposition has raised $1.3 million. Newsom and the Democrats briefly toyed with running an opposing initiative and are currently working on action in the legislature in a bid to blunt Prop 36's prospects.

They say that no studies on criminal justice or homelessness support the idea that harsher punishment -- or the threat of harsher punishment -- prevents crime or gets people off the street. They also argue that it will cost hundreds of millions of dollars in court and prison costs without measurably reducing crime or poverty. In the meantime, schools, health care, and other essential services will suffer.

Newsom and the rest of the opposition have their work cut out for them: A September Los Angeles Times poll this month had support for Prop 36 at 56 percent, and it's only gotten worse since then. An October Berkeley IGS poll had 60 percent in favor and 25 percent opposed, while an October Public Policy Institute of California poll has a whopping 73 percent supporting Prop. 36.