It is just a little over two months until Election Day, and the picture around marijuana legalization in the states is becoming clear. Six states -- Arkansas, Maryland, Missouri, North Dakota, Oklahoma, and South Dakota -- have seen initiative campaigns came up with sufficient signatures to qualify for the ballot, and if all of them succeed, that would bring the number of states where marijuana is legal to 25 -- half the states in the country.
But a couple of those states should come with asterisks: The Arkansas initiative will be voted on, but
the votes may not count as the state Supreme Court weighs whether to uphold the state election commission's decision not to certify the ballot title and popular names on the grounds that they are "misleading." And the Oklahoma initiative may be pushed back to a later special election or the next general election after delays in signature counting by a state contractor left it unable to be certified by the official deadline for the November ballot. The state Supreme Court is
currently considering whether to allow the initiative onto the ballot.
The Missouri initiative is also facing a legal challenge from prohibitionists, but that initiative is still on the ballot at this point, so no asterisk here.
Those caveats aside, here is a rundown of the legalization initiatives in the six states that could free the weed in November:
Arkansas
The Arkansas Adult Use Cannabis Amendment from Responsible Growth Arkansas would legalize the possession of up to an ounce of marijuana by people 21 and over and create a system of licensed marijuana cultivation, processing, distribution, and retail sales. It would also allow existing medical marijuana infrastructure (dispensaries, grow operations, etc.) to be integrated into the new adult use market. The Arkansas Beverage Control Board would be the regulatory agency.
Retail sales would face normal sales taxes plus an additional 10 percent tax. Fifteen percent of tax revenues would go to law enforcement, 10 percent to the University of Arkansas for Medical Sciences, five percent to fund drug courts, and the remainder to go into the general fund. There are no provisions for home cultivation or to promote social equity, although there is language deferring a criminal background check for people owning less than five percent of a marijuana business.
The most recent poll, from February, had support for legalization at 53.5%. That is a majority, but not a comfortable one.
Maryland
Question 4 would amend the state constitution by adding an article that allows people 21 and over to use and possess marijuana and providing that the General Assembly "shall provide for the use, distribution, possession, regulation and taxation of cannabis within the state."
This is an amendment that came not from the people but from the legislature, which passed it as House Bill 1 in April. The legislature that same month also passed implementing legislation to go into effect if the measure passes. The legislation, House Bill 837, which would set legal possession limits at 1.5 ounces and allow for the home cultivation of two plants. The bill would also automatically expunge convictions for conduct that would be legal if the measure passes.
The amendment contains no language about regulation or taxation. That will be left up to the legislature.
A March poll had support for legalization at a healthy 62 percent.
Missouri
Sponsored by Legalize Missouri 2022, Amendment 3 would allow people 21 and over to possess up to three ounces of marijuana and grow up to six flowering plants, as well as six immature plants and six clones. The measure also provides for the automatic expungement of nonviolent marijuana-related offenses.
The initiative also "seeks to broaden industry participation by small business owners and among disadvantaged populations, including those with limited capital, residents of high-poverty communities, service-disabled veterans, and those previously convicted of nonviolent marijuana offenses," according to Legalize Missouri 2022.
The initiative would tax retail sales at 6 percent, with localities allowed to add a 3 percent sales tax. It also gives cities and counties the option of disallowing retail sales via a popular vote.
It would also allow existing medical marijuana operations to seek recreational sales licenses beginning December 8, with regulators allowed up to 60 days to approve them, giving them an effective head-start on newcomer competitors.
The measure had drawn organized opposition from within the cannabis community, with critics saying it does not do enough to promote social equity, that it favors existing operators, and that because it is a constitutional amendment, the legislature would have little say. Still, despite the dissension, a July poll has support for legalization at a healthy 62 percent.
North Dakota
Sponsored by New Approach North Dakota, Initiated Statutory Measure No. 1 would allow people 21 and over to possess up to an ounce of marijuana, four grams of concentrates and infused products, and grow up to three plants at home, but not to consume it in public.
The measure includes specific child custody protections for parents who use marijuana in accord with state law, but employers could continue to prohibit marijuana use and there is no provision for expungement. New Approach North Dakota says it intends to address that in the legislature next year. The measure would also allow cities and counties to opt out of allowing marijuana businesses.
The initiative also creates a regulatory framework for commercial production and sales of marijuana with the Department of Health and Human Services (or a different agency designated by the legislature) developing rules and regulations and overseeing licensing of marijuana businesses. Regulators would have until October 1, 2023, to come up with rules for advertising, labeling, packaging, security, and testing standards.
There would be no new tax for marijuana, but the state's 5 percent retail sales tax would apply to marijuana sales. Those tax revenues are not designated for any particular fund. Commercial cultivators would have to pay an annual $110,000 registration fee and retailers would have to pay an annual $90,000 fee.
The number of retailers would be limited to 18 and the number of grow facilities limited to seven. In a bid to reduce monopolistic tendencies in the industry, no one person or entity could own more than one grow facility or four retail stores.
Just four years ago, state voters rejected a marijuana legalization initiative by a margin of 59 percent to 41 percent, but that was a more wide-open measure. There is no recent polling data for this measure.
Oklahoma
State Question 820 would legalize the possession, transport, and distribution of up to an ounce of marijuana, eight grams of concentrate, or eight grams of marijuana-infused products for people 21 and over. People would be allowed to grow up to six mature plants and six seedlings.
The Oklahoma Medical Marijuana Authority would be the regulatory agency for legal marijuana commerce, and retail marijuana sales would be taxed at 15 percent. Tax proceeds would go to the general fund (30 percent), public school programs (30 percent), drug treatment and overdose prevention programs (20 percent), the judicial revolving fund (10 percent), and municipalities or counties where marijuana is sold (10 percent).
The measure also would create a process for people to seek expungement of certain marijuana-related conviction or modification of sentences currently being served.
There is no recent polling on SQ 820.
South Dakota
Two years ago, voters approved a marijuana legalization initiative with 54 percent of the vote, only to see it thrown out in the state Supreme Court for violating the state's one-subject rule for initiatives. (It legalized marijuana and contained tax and regulatory provisions). Initiated Measure 27 seeks to get past that hurdle by not establishing a tax or regulatory structure for commercial sales. Instead, it would those issues for the legislature to decide.
It would legalize the possession, transport, and distribution of up to an ounce of marijuana by people 21 and over. It would also legalize the home cultivation of up to three plants -- but only in localities where there is no retail marijuana outlet, and there will not be any retail marijuana outlets unless and until the legislature acts to allow them.
An August poll had the initiative failing with only 44 percent of the vote, but that poll may be a fluke. It had support in the state's most liberal and populous region, the Sioux Falls metro area at only 38.6 percent. But in 2020, the Sioux falls metro area state Senate districts all reported at least 57 percent approval for legalization and one had the highest support of any district in the state at 72.7 percent. Maybe there has been a radical shift away from supporting legalization in two years, but most likely not.
As in the other five states, the real test comes on November 8.
