Six More States Could Legalize Recreational Marijuana This Fall

If all of the ballot initiatives succeed, pot will be legal in 25 states.

Voters in at least five states will decide whether to legalize recreational marijuana this fall, and a similar measure may yet qualify for the ballot in one more state. If all six initiatives are successful, recreational use will be legal in half of the states, underlining the untenability of continuing federal prohibition.

In Arkansas, where medical use was legalized in 2016, voters will consider a ballot initiative that would allow adults 21 or older to possess up to an ounce of marijuana for recreational use. The initiative also would authorize current medical dispensaries, plus up to 40 additional licensees, to serve the recreational market, with sales taxed at 10 percent.

Last week, the Arkansas Supreme Court ordered the secretary of state's office to include the marijuana initiative on the ballot, despite a dispute about whether it complies with state law. The Arkansas Board of Election Commissioners this month deemed the ballot title misleading, a conclusion that Responsible Growth Arizona, the organization backing the initiative, is challenging in state court. Depending on the outcome of that litigation, the votes on the measure may not actually be counted.

The 2016 initiative that legalized medical use passed with support from 53 percent of voters. A Talk Business & Politics/Hendrix College poll conducted in February found that 54 percent of likely voters thought marijuana should be "legal for adults," compared to 32 percent who said it should be legal only for medical use and 11 percent who thought it should not be legal at all. Gov. Asa Hutchinson, a Republican who ran the U.S. Drug Enforcement Administration from 2001 to 2003, opposes the initiative and has urged law enforcement agencies to "stand firm" against it.

In Maryland, where legislators authorized medical use in 2013, voters will consider a ballot initiative that would amend the state constitution to allow adults 21 or older to "use and possess cannabis." Possessing less than 10 grams (about a third of an ounce) is currently a civil offense punishable by a $100 fine, while possessing more (up to 50 pounds) is a misdemeanor punishable by up to a year in jail and/or a maximum fine of $1,000. The amendment also says the Maryland General Assembly "shall, by law, provide for the use, distribution, possession, regulation, and taxation of cannabis within the state."

A Goucher College poll conducted in March found that 62 percent of Maryland residents favored the legalization of recreational marijuana. In April, Gov. Larry Hogan, a Republican, allowed a bill laying out the rules that will apply if voters approve the amendment to become law without his signature.

In Missouri, where voters approved medical marijuana in 2018, this year's ballot initiative would amend the state constitution to "remove state prohibitions on purchasing, possessing, consuming, using, delivering, manufacturing, and selling marijuana for personal use" by adults 21 or older. It also would "allow persons with certain marijuana-related non-violent offenses to petition for release from incarceration or parole and probation and have records expunged."

The amendment would allow public possession of up to three ounces and home cultivation of up to six flowering plants. It would "establish a lottery selection process to award licenses and certificates" for commercial producers and distributors, whose sales would be subject to a 6 percent tax, plus local taxes up to 3 percent.

The 2018 initiative allowing medical use passed with support from two-thirds of voters. A Survey USA poll conducted in July found that 62 percent of registered voters thought recreational marijuana use should be legal.

In North Dakota, a ballot initiative that was approved for the ballot today would allow adults 21 or older to possess up to an ounce in public and grow up to three plants at home. It would charge the North Dakota Department of Health and Human Services or another agency designated by the legislature with writing the rules for commercial production and distribution. Consumers would pay the standard 5 percent sales tax.

North Dakota voters approved medical marijuana in 2016 by a 28-point margin. But two years later, voters rejected an initiative that would have legalized recreational use by a 19-point margin.

Two years ago in South Dakota, 54 percent of voters approved a constitutional amendment that would have legalized recreational marijuana. Last November, in response to a lawsuit backed by Republican Gov. Kristi Noem, the South Dakota Supreme Court overturned that initiative, concluding that it violated the state's "single subject" rule for constitutional amendments. Reformers are trying again this year with an "initiated state statute" that would "legalize the use and possession of recreational marijuana" by adults 21 or older.

The initiative would impose a one-ounce limit on public possession while allowing home cultivation of up to three plants and private possession of the marijuana they produce in jurisdictions without state-licensed retailers. But according to South Dakotans for Better Marijuana Laws, the organization sponsoring the initiative, it "does not include business licensing, sales, or regulations." So unless the state legislature decided to authorize commercial production and distribution, homegrown marijuana would be the only legal source for recreational consumers.

The ruling against the 2020 amendment did not affect a separate initiative authorizing medical use, which passed with support from 70 percent of voters. A Mason Dixon poll conducted the month before the South Dakota Supreme Court nixed recreational legalization found that just 39 percent of registered voters approved of the way Noem had handled the issue while 51 percent disapproved.

In Oklahoma, where voters approved medical marijuana by a 14-point margin in 2018, they could have a chance to go further in November. State officials are verifying signatures for a ballot initiative that would legalize recreational use and authorize businesses to serve that market. Recreational sales would be subject to a 15 percent excise tax and initially limited to existing medical marijuana dispensaries. After two years, additional suppliers could apply for licenses. Local governments would be allowed to regulate retailers but not ban them or cap their number.

If Oklahomans do approve recreational marijuana, that step could be important beyond that state's borders. As economists Robin Goldstein and Daniel Sumner note in Can Legal Weed Win?, Oklahoma has become an improbable model for marijuana reformers troubled by the problems that states like California have encountered in trying to displace the black market. Medical marijuana in Oklahoma is strikingly cheap and accessible, thanks largely to fast application approvals, light regulation, and modest taxes. "When the bluest of blue-state liberal activists are looking to red states for guidance on regulatory policy," Goldstein and Sumner observe, "you know something's gone haywire."

So far 19 states, accounting for more than two-fifths of the U.S. population, have legalized recreational use, while another 18 allow medical use. But federal law still treats state-licensed marijuana businesses as criminal enterprises. President Joe Biden opposes repealing federal prohibition, and Democrats have squandered the opportunity to enact even relatively modest marijuana reforms. With Republicans poised to take control of the House and/or the Senate this fall, the prospects of eliminating the ever-growing conflict between state and federal marijuana laws seem dim for the foreseeable future.