Alaska, Oregon, and DC: A Marijuana Legalization Trifecta in 2014? [FEATURE]

Labor Day has come and gone, and the 2014 election is now less than two months away. Marijuana legalization initiatives are on the ballot in two states -- Alaska and Oregon -- and the District of Columbia. For the marijuana reform movement, 2014 is a chance for a legalization trifecta on the way to an even bigger year in 2016, but there is also the risk that losing in one or more states this year could take the momentum out of a movement that has been on a seemingly unstoppable upward trend.

[Editor's Note: There are also local marijuana reform initiatives in several states, a Florida medical marijuana initiative, and a California sentencing reform initiative. The Chronicle will address those in later articles.]

The Initiatives

The Alaska and Oregon initiatives are quite similar. Both envision systems of taxation, regulation, and legal sales, and both allow individuals to grow small amounts of marijuana for their own use. The DC initiative, on the other hand, does not allow for taxation, regulation, and legal sales. That is because of peculiarities in DC law, which do not allow initiatives to enter the domain of taxation. But like the Alaska and Oregon measures, the DC initiative also allows individuals to grow their own.

Alaska Measure 2

The Measure 2 initiative allows adults 21 and over to possess up to an ounce and up to six plants (three flowering). It also allows individual growers to possess the fruits of their harvest even in excess of one ounce, provided the marijuana stays on the premises where it was grown. The initiative also legalizes paraphernalia.

The initiative grants regulatory oversight to the state Alcoholic Beverage Control Board, but gives the legislature the authority to create a new entity, the Marijuana Control Board. In either case, the regulatory authority will have nine months to create regulations, with applications for marijuana businesses to open one year after the initiative becomes effective.

A $50 an ounce excise tax on sales or transfers from growers to retailers or processors would be imposed.

The initiative does not alter either existing DUI laws or the ability of employers to penalize employees for testing positive for marijuana.

The initiative would not interfere with existing medical marijuana laws.

Oregon Measure 91

The Measure 91 initiative allows adults 21 and over to possess up to eight ounces and four plants per household. Individuals can also possess up to 16 ounces of marijuana products or 72 ounces of liquid marijuana products. And individuals can also transfer up to an ounce of marijuana, 16 ounces of marijuana products, or 72 ounces of liquid marijuana products to other adults for "non-commercial" purposes.

The initiative would designate the Oregon Liquor Control Commission to regulate marijuana commerce. The commission would license, audit, and inspect growers, suppliers, and retailers. The commission could set purchase amount limits, which are not specified in the initiative. The commission would have until January 4, 2016 to begin licensing growers, producers, and retailers.

Marijuana sales from producers to processors or retailers would be taxed at a rate of $35 per ounce, $10 per ounce of leaves, and $5 per immature plant. The commission can recommend to the legislature any changes in the tax structure, which would then have to act to enact them.

The initiative does not alter either existing DUI laws or the ability of employers to penalize employees for testing positive for marijuana.

The initiative would not interfere with existing medical marijuana laws.

DC Measure 71

The Measure 71 initiative would allow adults 21 and over to possess up to two ounces of marijuana and six plants, three of which can be mature. Households could grow up to 12 plants, six of which can be mature. Growers can possess the fruits of their harvests. Plants could only be grown indoors.

Adults could transfer up to an ounce to other adults without remuneration. There are no provisions for taxing and regulating marijuana sales because District law forbids initiatives from taking up tax and revenue matters. A bill is pending before the DC city council that would do precisely that.

The initiative also legalizes the sale and possession of pot paraphernalia. It does not change existing DUI law, nor does it "make unlawful" any conduct covered by the District's medical marijuana law.

The Prospects

None of these measures are long-shots at the ballot box, although none appear to be shoe-ins, either. None of the campaigns have made internal polling available, but an Oregon poll this summer had 51% in favor of a generic legalization question, with 41% opposed. A DC poll in January had 63% in favor of legalization.

Alaska is looking a little dicier, at least according to the most recent Public Policy Polling survey, which had the initiative trailing by five points after leading by three points (but still under 50%) in May. But, as we shall see below, there are questions about the reliability of the survey data there.

There are a number of factors other than public opinion that could influence whether these initiatives pass or fail. They include voter turnout in an off-year election, financial support for the campaigns, and the degree of organized opposition.

The Chronicle checked in with a number of national marijuana reform professionals and people involved with the initiatives to get a sense of the prospects, the challenges, and the implications of electoral success or defeat. There is a sense of cautious optimism, tempered with concerns that won't be allayed until the votes are counted.

"All three measures have a great chance of passing, and it'll really be a matter of how well these campaigns get their message out," said Mason Tvert, communications director for the Marijuana Policy Project. "There's also the question of what type of opposition there is, and how well it's funded. I'm familiar with the opposition in Alaska, and it's just more of the same old. They're trying to make marijuana sound as scary as possible, and it's up to those campaigns to make sure voters know it's not so scary."

It's about getting out the message and getting out the vote, Tvert said.

"Typically, the more turnout, the more support for making marijuana legal," said Tvert. "We would expect to see broader support during a presidential election year, but we'll find out if support is strong enough to pass these in an off-year. All these measures can pass, but these campaigns have to get their message out."

The National Organization for the Reform of Marijuana Laws (NORML) has endorsed all three initiatives, not having found anything too objectionable in any of them.

"When you're in the marijuana legalization business, that's what you do," explained NORML executive director Allen St. Pierre. "All three entities involved requested our endorsement, and our board of directors voted unanimously to do so," he explained.

"Oregon and Alaska are very similar, and while DC is the least impactful in what it seeks to achieve, but they all basically move the meter," he said. "If one or all of them pass, they will be seen as a good thing; if we get a full sweep, that will only affirm that we are now in the legalization epoch."

But can marijuana legalization pull off that trifecta this year?

"Alaska looks like it's in the most trouble, but with the caveat that polling there is hard to nail down," St. Pierre said. "That makes it all the more important for reformers to embrace the effort there, send resources, and encourage others to do the same. We're raising money for all three states right now on our web site, and Alaska is getting the least amount of earmarked donations -- and those are coming in from Alaskans. It's the proverbial out of sight, out of mind state, but it's one where you can actually impact an election at relatively low cost."

Frank Berardi of the Alaska Coalition for Responsible Cannabis Legislation had plenty to say about the polling.

"If you look at the polls, it's close, but in that 44% poll, the way they worded the question doesn't even reflect the language of the initiative, and since the question was inaccurate, a lot of people who would have been in support said no," he said. "Also, the age distribution was off -- it was mostly older people who were polled. And if you take the margin of error into consideration, it's a toss-up. It makes me wonder what the results would have been if the poll had been valid."

The coalition is working with the Campaign to Regulate Marijuana Like Alcohol in Alaska to pass Measure 2, but there is something of a division of labor between the two groups, Berardi explained.

"We're partnered with the campaign, but while they're focused on passing this is November, we're focusing on helping to implement the regulatory aspects of the bill," he said. "We've been polling our members about what they want, and we hope to work with the legislature on ensuring the people get what they want."

Still, the coalition isn't just waiting for Measure 2 to pass.

"We're helping out on the campaign, we go to events, we've share a booth with the campaign, we're informing people about the measure and out goals," he said.

People are equally hard at work down in Oregon.

"We are fighting for every vote, and we don’t take any vote for granted, but we feel like we have a really strong case and a growing majority of Oregonians support us," said Peter Zuckerman, communications director for New Approach Oregon, the group behind Measure 91.

"The challenge is going to be turnout," he said. "We really need our voters to register and vote. The polls have us ahead, but we need voters, volunteers, donors -- all the help we can get."

The campaign is getting significant help. It has raised millions in campaign funds and has a $2.3 million TV ad reservation. And it has a well-honed message.

"In Oregon, somebody gets arrested or cited for marijuana once every 39 minutes," Zuckerman said. "Seven percent of all arrests are for marijuana. Treating it as a crime has failed. With a regulated market, police will not be distracted with small marijuana cases. Instead of people buying it on street corners, they can buy it in a regulated marketplace. It's a much better system."

The campaign is also picking up key endorsements. It's won the support of the state's largest and most influential newspaper, The Oregonian, the Democratic Party, and the well-heeled City Club of Portland. It's even won the support of the Oregon State Council of Retired Citizens. (Click here for the complete list of endorsements.)

"Every endorsement helps," said Zuckerman.

"Oregon is going to make it," NORML's St. Pierre predicted, citing polling so far, key endorsements like The Oregonian, and a changing political climate.

"Gov. Kitzhaber has made it clear that if he is reelected and the citizens task him with this, he will faithfully implement it," he said. "Oregon is a state that is environmentally conscious, and he was concerned about energy use. He wanted alternatives to indoor cultivation. But you can set up greenhouses -- safe, water-friendly, criminal-deterring greenhouses. And not only is Kitzhaber keen, Attorney General Ellen Rosenbaum is very supportive. She's probably one of the most progressive attorneys general in the country."

St. Pierre also argued that Oregon pot people are coming around to regulation.

"The industry itself, as in Colorado, seems to recognize that there is a better opportunity for both legitimacy and profits if they embrace legalization, as compared to some brethren in California and Washington who chose to oppose it," he said. "This is the state where voters have been asked the legalization question the most, and I think finally Oregon is going to break out."

A victory in Oregon would carry the most weight, the NORML head said.

"That would move the meter the most. It would be actual sales, taxation, and regulation, and it's not as out of sight as Alaska. And it would cinch up the Pacific Northwest."

And then there's DC.

"DC is kind of symbolic, it's not legalization in the purest sense of the word, but it goes as far as it can under DC law," said St. Pierre. "But it's building in the District, going from medical to decriminalization being almost universally supported, and now building to soft legalization. That will de-incentivize police, they won't have any reason to ask what's in your hand, what's in your pocket."

"I feel like we're in the lead, but I'm very nervous about a well-funded opposition mounting," said Adam Eidinger of the DC Cannabis Campaign, which is leading the charge in the nation's capital. "We have no great war chest and we could be caught flat-footed. I don't want to be overconfident; I would rather have a well-funded campaign to assure victory."

Eidinger said the DC campaign had $50,000 in pending pledged contributions, but less than $2,000 in the bank right now. He said he's had problems raising money not only from advocacy groups, but also from the industry, which also contributes to the advocacy groups.

"I don't think we were on the advocacy groups' schedule," he said, adding that some had also expressed skepticism about whether the measure would ever be implemented even if it won because of possible city council or congressional interference.

"Nonprofits are getting a lot of money from the cannabis industry, but in our case, there is no clear business model for profiting from selling cannabis or having exclusive rights to growing it," Eidinger pointed out. "Even some dispensaries have painted this as a threat to their near monopoly. We do not have aligning interests. Monopolies and price supports don't benefit consumers or anyone except business entities and the government."

The campaign is getting some financial backing from the Drug Policy Alliance, but it needs more help, he said.

"You need to talk to your family and friends and get them to support the campaign with donations, with voter registrations, and as election day volunteers," Eidinger said. "We will be doing a postering blitz, we're planning some mailers, but with less so little money in the bank right now, we need a major influx of cash. We blew everything we could leverage just getting on the ballot."

Three initiatives, three chances to win marijuana legalization victories this year. But the stakes are high, and they go beyond 2014.

"This is the penultimate year, and if we have any losses, our opponents will immediately claim we're losing momentum, that whatever has happened has peaked, and that would be really regrettable," St. Pierre suggested.

"But 2016 is the ultimate year. If California moves forward -- it will likely be joined by Maine or Massachusetts, but California is so important, if it legalizes, America will legalize, and North America will move in the same direction, and so will the European Union," he said. "But if we lose this year, that makes the job in 2016 that much harder. If we lose in Alaska or Oregon, that will provide fodder for the opposition."

MPP's Tvert was a bit more sanguine.

"We're in a position where we will continue to move forward, and it's unlikely we will move backwards," Tvert said. "In Colorado in 2006, people told us we were crazy to run an initiative because we would lose and the state would never legalize marijuana, but public opinion is moving toward ending prohibition, and we expect to see that continue. And even if one or more don't pass this year, we will surely see several pass in the near future."