Voter Initiatives On Dope, Health, and Land Breathe New Life Into Federalism

State-level voter initiatives to watch in election 2012.


There's an important constitutional issue on ballots across the country next month, but it's not labeled by its name anywhere that it appears. That issue encompasses concerns traditionally considered both conservative and liberal, even if it is embraced oh-so-selectively by its newfound friends. That's right, federalism is back, though you'll find it labeled "marijuana legalization," "health care choice," or even "state sovereignty." In all cases, the ballot measures are criticized as symbolic or futile challenges to federal policy—but, as such, they also represent tests of just how much free rein the states retain in a country increasingly dominated by the behemoth on the banks of the Potomac. And, hell, if you don't tweak D.C. from time to time, you're just not trying.

First, let's note that local inititiatives on important matters such as gay marriage and medical marijuana are also staking out local policy, and expanded freedom, without regard to prevailing political winds in the White House or on Capitol Hill. But gay marriage doesn't directly challenge federal policy, and medical marijuana is (happily) almost old-hat 16 years after California took the first steps toward treating the stuff as medicine. The ballot initiatives below go just a little further toward asserting local autonomy on important issues.

Smoking joint

The highest-profile measures this year are the ballot initiatives to outright legalize marijuana in Colorado, Oregon, and Washington. These measures go beyond the popular medical marijuana initiatives of recent years, which already represented thrown gloves to federal prohibitionism, and seek to make grass available for recreational consumption.

  • Colorado's Amendment 64, says the always-helpful Ballotpedia, would "legalize the use and possession of, at most, an ounce of marijuana for residents who are 21 and older. In addition … would allow the state to regulate retail sales of the drug."
  • Oregon's Measure 80 "allows commercial marijuana (cannabis) cultivation/sale to adults through state-licensed stores; allows unlicensed adult personal cultivation/use; prohibits restrictions on hemp."
  • Washington's Initiative 502 "would legalize the production, possession, delivery and distribution of marijuana. The initiative would regulate the sale of small amounts of marijuana to people 21 and older. According to reports, marijuana grow farms and food processors would be licensed by the Washington State Liquor Control Board."

All three initiatives directly challenge federal law prohibiting marijuana for pretty much any use whatsoever. Considering that alcohol prohibition required a constitutional amendment to implement, it's always been an open question as to the source of the federal government's authority to impose a national ban on grass or any other drug. Nevertheless, don't expect D.C. to back down—in fact, the feds have taken notice. U.S. Deputy Attorney General James Cole told 60 Minutes, "We're going to take a look at whether or not there are dangers to the community from the sale of marijuana and we're going to go after those dangers."Attorney General Eric Holder was blunter in 2010 when he threatened to "vigorously enforce" federal law if California legalized marijuana (that measure failed).

If the Justice Department's language has moderated in the past two years, that may be because the tide of public opinion is turning, and these measures are likely warning shots to the government of big changes to come. While the slightly more free-wheeling Oregon measure has been lagging in the polls, the Colorado and Washington initiatives could well pass. Now that half of all Americans favor full marijuana legalization and a clear majority support medical use, busting people for growing, selling, and enjoying marijuana is no longer the risk-free voter-pleaser it once seemed.

Doctor Obama

Also addressing a headline-grabbing political issue are measures in several states that would block enforcement of federal laws forcing people to participate in Obamacare-approved medical coverage. If these pass, they would join similar measures already approved in states including Arizona, setting the stage for further legal challenges to the Patient Protection and Affordable Care Act, and guaranteeing that Obamacare, if implemented, will require much greater effort from D.C. than originally planned, without the assistance of many state governments.

  • Alabama Amendment 6 would amend the state constitution "to prohibit any person, employer, or health care provider from being compelled to participate in any health care system."
  • Florida Amendment 1 "aims to prevent laws or rules from compelling any person or employer to purchase, obtain, or otherwise provide for health care coverage."
  • Missouri Prop E "would prohibit the establishment, creation, or operation of a health insurance exchange unless it is created by a legislative act, a ballot initiative, or veto referendum."
  • Montana LR-122 "would allow residents in the state the choice to decide if they want health insurance or not, and which health insurance to buy if they choose to do so."
  • Wyoming Amendment A says "[n]o federal or state law, rule or administrative decision shall compel, directly or indirectly, any person, employer or health care provider to participate in any health care system."

As with the marijuana initiatives, there's a lot of assumption that federal law will prevail and that these Obamacare mesures, if they pass muster, will stand in for Western Union in sending a message to D.C. A Miami Herald scribe wrote that Amendment 1's passage "could give Gov. Rick Scott and legislators additional drive to continue to resist implementing certain provisions of the law" and "give Florida elected officials enough reason to wage a new court battle against the individual mandate in the Affordable Care Act." Polling is thin on the ground for these measures, but a recent Rasmussen survey found 52 percent national support for total repeal of the Patient Protection and Affordable Care Act, which may be an indicator of likely ballot results.


More of a regional issue—specifically, a western issue—is local control over public land, a concern that's rising once again across the arid mountains and deserts. And no wonder, in a region where the federal government controls half or more of the real estate. Utah, which is two-thirds owned by D.C., passed a law earlier this year demanding the federal government relinquish its lands to the state and threatening outright seizure of the same in 2014. Arizona's Governor Jan Brewer vetoed a similar bill, so legislators did one better and put a constitutional amendment before voters.

  • Arizona's Proposition 120 "would declare state sovereignty over the state's natural resources based on the argument of 'equal footing.' Natural resources would include land, air, water, minerals and wildlife."

Given that nobody inside the Beltway especially gives a damn what happens in the realm of cactus and jackrabbits, this particular act of political semaphore is unlikely to excite much interest on the Potomac, even were it to pass unanimously. But flipping the bird to the feds is food for the soul, and (re-)simmering western discontent is yet another sign that one-size-fits-all centralized control can breed resistance. Arizona polls are a crapshoot at best, and nobody has bothered surveying the public on this measure, so we'll have to wait for election day to see how it fares.

None of these ballot initiatives are likely to actually sweep away the federal government's power to jail people over consumption of a popular intoxicant, to shoehorn people into centrally-planned healthcare schemes, or to administer wide-open spaces far from the imperial capital, but the passage of even a few measures so at odds with federal will is an important reminder to officials in D.C. that their preferences are not necessarily a widely shared taste.

"Federalism" has long been little more than a word in textbooks and social study classes. But, this year, voters in a good many states have an opportunity to tell federal officials that they'd like to breathe some life into that principle and, in so doing, gain a chance for more breathing room than policies favored in Washington, D.C. have allowed.