In an interview with Roll Call this month, Sen. Cory Gardner (R-Colo.) described Senate Majority Leader Mitch McConnell's dismay upon hearing that voters in Utah seem set to approve medical marijuana when they go to the polls on November 6. "I said that even Utah is most likely going to legalize medical marijuana this year," Gardner recalled. "McConnell looks and me, and he goes, 'Utah?' [He had] this terrified look. And as he says that, Orrin Hatch walks up, and Mitch looks at Orrin and says, 'Orrin, is Utah really going to legalize marijuana?' And Orrin Hatch folds his hands, looks down at his feet, and says, 'First tea, then coffee, and now this.'"
Notwithstanding opposition from the Church of Jesus Christ of Latter-day Saints, polls indicate that nearly two-thirds of Utah voters think patients should be able to use marijuana if their doctors recommend it. Prospects for medical marijuana look dimmer in Missouri, where surveys indicate weaker public support and voters will face a potentially confusing choice of three separate initiatives on the subject. It seems even less likely that North Dakota voters, who just two years ago approved medical marijuana by a surprisingly large margin, are ready to legalize recreational use. But recreational legalization seems to have a pretty good shot in Michigan.
Here is a rundown of those measures, plus an arcane Colorado initiative that could have a big impact on that state's hemp industry.
Proposal 1 would allow adults 21 or older to possess 2.5 ounces or less of marijuana in public, transfer that amount to other adults "without remuneration," possess up to 10 ounces at home, and grow up to 12 plants for personal consumption. The initiative also would establish a licensing system for commercial production and distribution, subject to a 10 percent tax on retail sales.
Support for Proposal 1 averaged 54 percent in six polls conducted from late February to early October. A solid majority of Michigan voters (63 percent) approved medical marijuana in 2008. If they take this further step, Michigan will be the first state in the Midwest to legalize recreational use, joining nine states in the West and Northeast.
Measure 3 would go further than any initiative enacted so far by removing marijuana from the state's list of prohibited substances and thereby legalizing "any nonviolent marijuana activity, except for the sale of marijuana to a person under the age of 21." Possession of marijuana by minors would be treated the same as possession of alcohol.
The North Dakota initiative is also unique in requiring "automatic expungement of the record of an individual who has a drug conviction for a controlled substance that has been legalized." So far California is the only state to approve a legalization initiative that addressed the lingering collateral consequences of a marijuana conviction, and even that measure put the onus on victims of prohibition to seek expungement or resentencing (although a law enacted last month will make the process easier).
North Dakota voters approved medical marijuana by a 28-point margin in 2016, but they do not seem inclined to endorse wholesale legalization. Surveys conducted in February and August put support for legalizing recreational use at 46 percent and 38 percent, respectively.
Proposition 2 would authorize the production and distribution of marijuana for medical use by patients with any of 10 qualifying conditions and recommendations from their doctors. As of 2021, state-approved patients would be allowed to grow up to six plants at home if they do not live within 100 miles of a licensed dispensary.
Support for the Proposition 2 averaged 68 percent in nine polls conducted from mid-February to mid-October. Even after the LDS church joined the coalition opposing the initiative, two polls put support at 64 percent, while a third found 74 percent of voters favored the measure.
If voters approve Proposition 2, Utah will join 31 states that have legalized medical marijuana. The most recent addition to that list was another conservative state, Oklahoma, where an initiative passed in June.
Amendment 2, Amendment 3, and Proposition C would all authorize production and distribution of marijuana for medical use by patients with qualifying conditions and recommendations from their doctors. The measures differ mainly in the way they define qualifying conditions, the maximum amounts they would allow patients to purchase and possess, their treatment of home cultivation, the tax rates they would set, the purposes for which they would earmark the revenue, the limits they would impose on the number of dispensaries, and the power they would give local governments to ban them.
A poll conducted in August found that 54 percent of Missouri voters think the medical use of marijuana should be permitted. If both constitutional amendments pass, the one with more votes will prevail. Proposition C, which would make statutory changes that the legislature could reverse by a simple majority vote, will take effect only if neither amendment passes.
Amendment X would remove from the state constitution the definition of industrial hemp that was added by Amendment 64, the 2012 initiative that legalized marijuana for recreational use. Colorado's constitution currently defines industrial hemp, a nonpsychoative variety of cannabis that is used for fiber, food, cosmetics, and medicine, as "the plant of the genus cannabis and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration that does not exceed three-tenths percent on a dry weight basis." Amendment X strikes that definition in favor of a statement that industrial hemp "has the same meaning as it is defined in federal law or as the term is defined in Colorado statute."
Since the current federal definition of industrial hemp, as set forth in a 2014 law that allowed limited cultivation and in the 2018 farm bill that is expected to replace it, is virtually identical to the Colorado constitution's definition, Amendment X would not have any immediate practical effect. But the state legislators who support the ballot initiative argue that they need the flexibility to adjust the definition in response to future federal legislation. Opponents of the initiative argue that it would leave the hemp industry vulnerable to the whims of legislators and bureaucrats.
"Amendment X is mischaracterized as routine tinkering," writes Denver attorney Rob Corry in Westword. "The poorly drafted Amendment X guarantees litigation or even criminal prosecution if federal law is different from state statute, as it is right now. Under federal 'law,' the U.S. Drug Enforcement Administration is empowered to unilaterally change the scheduling of narcotics and to outright ban them, as is the U.S. Congress. The DEA currently claims that industrial hemp is illegal under federal law. Amendment X would allow the legislature to re-criminalize hemp…Amendment X unilaterally surrenders Colorado's constitutional protections for hemp to the Trump Justice Department."