Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, February 12, 2014

Should states reform marijuana laws via ballot initiative or via statute?

The first states to legalize marijuana all did so via ballot initiative: California voters were the first to legalize medical marijuana (Proposition 215 in 1996), and Colorado and Washington voters share that distinction for recreational marijuana (Amendment 64 and I-502, both in 2012). Indeed, 8 out of the first 10 states to legalize medical marijuana did so via ballot initiative.

In these states, the ballot initiative may have been the only option for reformers. That’s because elected state officials have been leery of embracing the reform movement. But the politics of pot have arguably changed in the past decade. Very large majorities now favor legalizing marijuana for medical purposes, and a slim majority now favors legalizing the drug for recreational purposes as well. To be sure, there are still political risks involved in spearheading marijuana reforms, but it’s not a political third rail (assuming it ever was).

Growing popular support for marijuana reforms raises an interesting question about how states should pursue such reforms in the future. In particular, should they do so via ballot initiatives approved by the people, or via statutes approved by their elected representatives?

Here, I want to stake out a tentative case for pursuing reforms via statute rather than initiative. The post is inspired in part by a claim made by Colorado state leaders on Monday: they’re having more difficulty crafting sensible marijuana regulations than they would have had the state’s legislature (rather than its voters) legalized the drug.

There are a number of standard criticisms of the initiative process that should give state constituencies some pause: voters’ lack of information compared to (at least some) professional lawmakers; legal limitations on how initiatives may be drafted (single subject rules, etc.); and so on. But perhaps the most relevant problem—and the one that seemed to animate those Colorado officials—is the comparative difficulty of fixing “broken” initiatives.

This particular difficulty arises in two stages. The first is the lengthy period between certification (i.e., when proponents are allowed to gather signatures) and the election. To get an initiative on the ballot, proponents must first vet the proposal’s title, language, etc. with the state Secretary of State. This vetting process is primarily designed to clarify proposals, not to fix substantive problems with them. And once the language of an initiative has been certified under this process, it generally cannot be changed before the election. In Colorado, for example, it appears the language of Amendment 64 was settled on June 3, 2011 (the date it was submitted to the SOS), fully 17 months before voters actually approved the measure. It seems safe to assume that proponents and opponents alike might have sought changes, perhaps even major ones, had they been allowed to tinker with the proposal over that lengthy span. By contrast, statutes can be reworked up until the very moment legislators actually vote on them. To be sure, some states, including Colorado, give the state legislature the opportunity (two weeks) to comment upon proposals pre-certification; but such comments are advisory only (i.e., proponents can ignore it), and are received still months before the general election is held.

Difficulty also arises in a second, post-adoption stage. Once an initiative is approved by the voters, it is, generally speaking, much harder to change compared to an ordinary statute approved by the legislature, at least when the initiative is couched as a constitutional amendment (like Amendment 64). To change (or repeal) Amendment 64, for example, the Colorado General Assembly would need to pass a new constitutional amendment by a two-thirds majority and still refer the measure to the voters for approval. In the alternative, the state’s voters could pass another initiative, but getting the new initiative certified would take time, and proponents would have to wait at least 2 years to make the changes because initiatives may only be considered at a general election, which is held only every other year. (Other states impose even more onerous hurdles for revising / repealing initiatives post-adoption.)

California’s experience with Proposition 215 illustrates the dangers of reform via initiative. While Prop 215 gave state residents a right to grow, possess, and consume marijuana for medical purposes, it failed to specify how (if at all) such cultivation, possession, and consumption would (or could) be regulated. And since it was passed nearly 20 years ago, the state legislature has struggled mightily to impose meaningful regulations on the drug. Indeed, California now lacks state-wide controls commonly found in other medical marijuana states, including patient registration requirements. To be sure, the state’s failure to impose such controls stems from a number of factors, but the constitutionally privileged status of Proposition 215 is at least partly to blame. In People v. Kelly, for example, a state appellate court invalidated on its face a very modest quantity limitation (8 ounces per patient) imposed by a 2003 state statute, because the limitation burdened the constitutional right created by Proposition 215. While the California Supreme Court later reversed the remedy (facial invalidation), it left open the door for future as-applied challenges to the (already quite generous) legislative limits.

Of course, some of what I’m describing as “pitfalls” of initiatives might be viewed as advantages by certain reform proponents. After all, the stickiness of initiatives makes it tougher for state legislatures to block or undo reforms approved by the people. And there is an always an argument to be made that reforms adopted directly by the people are more democratically legitimate.

But it will be interesting to see if state legislatures try to forestall resort to ballot initiatives by passing statutory reforms first. Indeed, there are signs the tide may be turning. Of the last 11 states to legalize medical marijuana, for example, 7 did so via statute, one by executive order, but only 3 by initiative.

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