Don’t rush into marijuana legalization, experts say

Pot. The Devil’s lettuce. Dope. Weed. Whatever you call it, and whether you like it, marijuana is increasingly a political issue as state lawmakers weigh marijuana legalization. In four states, voters this November could help expedite that decision.

Voters in Florida, North Dakota and South Dakota will decide on ballot measures to legalize recreational or personal use of marijuana for adults 21 years and older. In Nebraska, voters will decide on two ballot measures regarding the legalization of medical marijuana and the creation of a state commission to regulate the program.

(In North Dakota this is the third time voters will decide on weed legalization ballot measures after previous attempts in 2018 and 2022. And while Arkansas voters will see a measure to legalize medical marijuana on their ballots, the Arkansas Supreme Court on Monday ruled that votes on the measure will not be counted because its title is misleading.)

If approved, the four states would join 24 states and the District of Columbia in allowing adults to consume, possess or grow marijuana for personal use. More than half of those jurisdictions have legalized the substance through ballot measures.

“I think it’s safe to say at this point that a majority of residents in every single state in the country wants legalization [or] at minimum medical use,” said Rob Mikos, professor of law at Vanderbilt University. A 2023 Gallup poll, for instance, found that seven in 10 U.S. adults support marijuana legalization with no significant differences in support by gender, race or education.

Florida’s ballot measure, for example, is the most expensive marijuana-related campaign ever, according to Ballotpedia. It has generated more than $105 million in contributions, largely from Florida-based medical cannabis company Trulieve, as well as an endorsement from former President Donald Trump and controversy over state-funded ads opposing the ballot measure. The next most expensive marijuana legalization campaign was in California in 2016 with contributions totaling $25 million.

But even if ballot measures pass, legalization isn't a sure thing, Mikos said. In South Dakota, residents approved a ballot measure to legalize recreational marijuana in 2021, but it was later struck down by the state’s Supreme Court as unconstitutional.

“Conservative officials have been able to hold [legalization] back,” Mikos said, “even though you do have a ballot referendum process, and even though you’ve got overwhelming public support.”

None of the more than 20 states that have yet to approve some form of marijuana legalization have a ballot referendum process. Otherwise, voters could use ballot measures to legalize pot, even if state legislatures are opposed to such policies.

But a slow approach to weed legalization might be worth it for state lawmakers.

Ballot measures are difficult for officials to amend without voter approval, Mikos said. He pointed to California, where medical pot was legalized through a ballot measure in 1996. The law allows adults to grow and possess medical marijuana under a physician’s recommendation.

The 1996 ballot measure, Mikos said, “hardwired” into law loose restrictions on the quantity of marijuana an individual could possess. State lawmakers tried to cap how much pot medical marijuana patients could cultivate and keep with a 2003 law, but the California Supreme Court struck it down in 2010 because it violated the 1996 amendment.

The ruling established that “the legislature has no power to amend a referendum passed by the people,” Miko said.

Plus, ballot measures could push policymakers into crafting hasty regulations once they’re approved by voters, he said.

After constituents in Washington state passed Initiative 502 in 2012 to allow the production, distribution and possession of recreational marijuana, for instance, authorities developed a tax structure that allowed some marijuana businesses to skirt certain tax requirements, said Boyoung Seo, business economics and public policy at Indiana University.

In the first year that consumers could legally purchase marijuana in Washington, Seo said the state imposed separate taxes on marijuana producers, processors and retailers. But that meant if a producer and processor were the same person or business, the state only collected one tax as opposed to two taxes from standalone producers and processors. 

In 2015, state lawmakers changed the tax structure to impose a single 37% excise tax on dispensaries. Not every state has to follow Washington for a successful implementation of a legal marijuana market, Seo said, but lawmakers should consider what they want their markets to look like.

If the goal is to keep each stage of the marijuana supply chain separate, then Washington’s initial tax structure would be ineffective for that model, she said. That model can help small marijuana businesses, such as facilities that only operate as dispensaries or weed growers, thrive in markets because there is a lesser chance they will be assimilated into larger corporations. The state’s amended tax model, however, encourages vertical integration for weed companies to produce, distribute and sell their own products.

States’ efforts to tackle the implementation of marijuana legalization through ballot measures show that laws crafted by the public “may not be best for the state,” Mikos said. 

“If you can do this through the legislative process, you’d be much happier,” he said.