On election night, I was in the driveway of the law offices of Bruce Margolin, head of the Los Angeles branch of the National Organization for the Reform of Marijuana Laws (NORML) and L.A.'s most famous pot-crime defense lawyer. The local marijuana community had gathered there to celebrate (or mourn) the vote returns on Proposition 19. This was California’s high-profile chance to legalize the possession of up to an ounce of marijuana and to grow up to 25 square feet of marijuana plants. The proposition would also grant localities the power to allow higher limits for possession and growth, and, if they chose, to legalize, tax, and regulate sales.
An hour or so after the 8 p.m. poll closing, despite the optimism and polling that presaged victory a month ago, we all knew voters had rejected this opportunity to liberalize their state’s marijuana laws, 54-46. The proposition won in only 10 of 58 counties—all but two on the state’s west coast. Los Angeles, which had enjoyed (or to some, suffered) the greatest profusion of retail marijuana shops under California’s existing medical pot regime, did not choose to legalize for all adults.
California’s voters had been told by 19’s proponents that legal pot for adults offered unprecedented opportunities for elevating both government revenue and racial justice, for redirecting police resources more helpfully, and for creating many good local jobs in the growth, processing, and sales of hemp and marijuana.
Those same voters had also been told that voting yes on 19 would lead to a flood of drugged drivers and zonked employees going unpunished and unpunishable, and an angry mob of federal agents meting out rough pot justice if the state went wobbly. The local option built into the proposition’s language that would have freed localities from having the Bay Area's sense of pot’s propriety imposed on the whole state was recast by opponents as a chaotic nightmare of different jurisdictions treating pot differently that would, somehow, be worse than the ways similar laws governing such matters as alcohol and guns already shift from county to county and city to city.
In the end, a half million more California voters chose to say no thanks to legal pot than chose to legalize it. A pro-19 effort of over a year, nearly $4 million in spending (more than 10 times as much as the official opposition to 19), and the tabling, door-hangering, and get-out-the-vote phone calling of many hundreds of volunteers was over, with nothing to show for it.
That’s one way to look at what happened with Prop 19. But there in Margolin’s driveway, where a small mob of 19 fans would gather every 20 minutes or so when the local news went live, cheering and shouting “Yes We Cannabis!,” even when defeat was conceded, the phrase spilling most often from the lips of 19 spokeswoman Amanda Rain Brazel to the reporters and cameras was this: Pot legalization was “no longer a matter of if, but of when.”
Richard Lee, a pot entrepreneur who runs both dispensaries in Oakland and Oaksterdam University, a school for would-be entrepreneurs in growing or selling the legally ambiguous leaf, was the proposition’s prime funder and original sparkplug. He told the Sacramento Bee after his proposition’s defeat, “We just need to do some research and see why people voted ‘no’….We did get more votes than (gubernatorial candidate) Meg Whitman. And she spent more than $140 million. We need to look at the bright side.”
At a telephone press conference the next morning from Oakland, representatives of various parts of the 19 coalition did just that, laying out their reasons for seeing potential victory in 19’s apparent defeat. When Lee launched 19, most other elements of the drug law reform movement, from the NORML to the Marijuana Policy Project (MPP) to the Drug Policy Alliance (DPA) told him he was picking the wrong year, that he was moving ahead too early.
They eventually came on board after 19 made the ballot, and at the press conference Ethan Nadelmann of the DPA (whose most prominent supporter George Soros came in with a last-minute million dollars for the campaign that helped sponsor a rush of TV ads) admitted that “I was among those who initially tried to discourage Richard from going forward. We said ‘wait until 2012.’…I called Richard a couple of weeks ago to say, ‘Win or lose, you were right. Even if we don’t prevail, the transformation in public dialogue, not just in California but nationally and internationally, has been nothing short of stupendous. The debate over marijuana legalization has been elevated to legitimacy.’”
Nadelmann and others in the Yes on 19 campaign also think it highly likely that the pressure of Proposition 19—and a desire to blunt its most sympathetic selling point, the damage done to people’s lives by being dragged into the criminal justice system, even for a misdemeanor, merely for possession (61,000 such misdemeanor arrests in California last year)—led Gov. Arnold Schwarzenegger last month to sign S.B. 1449 into law, which reduced the penalty for an ounce or less to a mere infraction and a $100 fine, the legal equivalent of a traffic ticket.
(Article continues after the video, "Brian Doherty Explains the Failure of Prop. 19 and What It Means for the Future of Pot Legalization.")
As many Prop. 19 activists told me, not even their most tenacious opponents were out to defend the drug war status quo. (And I noticed that almost no one anymore is willing to be loudly against medical marijuana, including even the loudest anti-19 spokespeople, 14 years after it passed in California amid great controversy.) People against 19 tried to be specifically against 19, not to fight over the wisdom of the drug war as it is actually waged.
A major complaint about 19 specifically was, as anti-19 speaker John Redman of Communities in Action said at an October debate at Cal State Fullerton, “Proposition 19 is called the regulate, tax and control cannabis act, but it doesn’t do any of those things” since any specific regulations, taxes, and controls that might follow legalization were not built into the proposition but left up to localities. Enemies of 19 were unhappy—as were libertarian critics such as Jeffrey Miron and Walter Olson—that the proposition tried to protect legal users from being punished by their employers if their pot use did not lead to actual on-the-job impairment.
Still, exactly what set of concerns caused 19 to lose is still unclear, beyond a failure on the Yes campaign’s part to greatly increase usual youth turnout, where their support was greatest. The Yes on 19 forces even had police out front and center, most prominently from Law Enforcement Against Prohibition; the opposition had police chief and narcotics officer unions among its biggest-buck supporters.