The Cannabis Election: Five Things to Watch

By Willis Jacobson
Oct 23, 2020
A stock photo of a health care worker cupping a Vote campaign button and canabis

The cannabis industry’s next few years could largely hinge on the results of November’s election. 

Five states are set to decide on some form of legalization, and federal prohibition has played a role in multiple Senate and House races. The results of the Nov. 3 balloting could shape the industry landscape for years to come.

With that in mind, here are five key cannabis election storylines to watch as Americans take to the polls:

1. The Senate

The most important outcome of the entire election, as it relates to cannabis, will be what happens with the makeup of the Senate, Paul Armentano, the deputy director of advocacy group NORML, said.

“We have established over the past two years that we have the votes in the House of Representatives to amend federal marijuana law,” he said. “But until there is a shift in Senate leadership, any and all of these efforts will remain gridlocked in the U.S. Senate by GOP leadership, in particular Sen. Majority Leader Mitch McConnell (R-Ky.).”

Amber Littlejohn, the executive director of the Minority Cannabis Business Association (MCBA), agreed with that assessment, noting that “Democrats taking back the U.S. Senate, while holding the House, would be huge.”

“Despite [Congress’s] leadership, progress keeps getting hung up in the Senate, led by Mitch McConnell, who chortled on the Senate floor at the idea of supporting equity in the cannabis industry,” she said.

McConnell’s is among 35 Senate seats that are up for grabs this year, though the leader is a heavy favorite to win his race. Republicans currently hold a 53-47 majority in the upper house. Many advocates point to that GOP control as the main reason that recent legalization bills have failed to receive a vote. 

Last year, the U.S. House of Representatives passed a banking protection bill – the first marijuana reform measure to ever pass the chamber – but the Senate never took it up for a vote. McConnell also slammed Democrats this year for including a banking protection bill in a proposed coronavirus relief package.

The Colorado Senate race is also expected to have an impact on the legalization movement.

In Colorado, incumbent Cory Gardner (R) is challenged by former Gov. John Hickenlooper (D). Gardner is considered one of the most pro-cannabis Republicans in the Senate, according to the National Cannabis Industry Association, which notes that Hickenlooper actively campaigned against legalization during his time as governor from 2011 to 2019. Hickenlooper has said during his campaign, however, that as a Senator he would support cannabis being de-listed from the CSA. 

Among other things, Gardner sponsored or co-sponsored the STATES Act and the SAFE Banking Act, both of which failed to pass.

“If Republicans retain control of the Senate, but Gardner loses his seat, it may have adverse consequences for the cannabis industry,” wrote Michelle Rutter Friberg, NCIA’s Deputy Director of Government Relations.

2. New Jersey

The Garden State is looking to become the first in the mid-Atlantic region to legalize REC, which analysts predict could trigger a domino effect among its neighbors.

New Jersey voters will be asked to decide on New Jersey Public Question 1, which, if passed, would legalize REC, effective Jan. 1, and give oversight of the new market to the state’s Cannabis Regulatory Commission, which currently regulates the New Jersey MED program. Notably, it would also put New Jersey on track to open a lucrative REC market ahead of its larger neighbors New York and Pennsylvania.

“I get the feeling that all eyes around the country are on New Jersey right now,” Bill Caruso, an attorney with Archer Law who also lobbies on behalf of the cannabis industry, told WeedWeek this month.

Gov. Phil Murphy has been among the most vocal advocates for legalization and has spent much of the past several weeks campaigning on behalf of the ballot measure.

New Jersey officials anticipate a REC market could provide a $300M tax boost to the state, and lawmakers have said they intend to use the measure to implement criminal justice reform – by expunging marijuana arrests, among other initiatives – and as a job creator and tourism driver.

“New Jersey has the opportunity not just to impact the citizens of New Jersey, but also those in surrounding states, including New York,” said Littlejohn, with the MCBA. “However, it’s important that New Jersey get it right when it comes to social equity.”

3. Arizona

In Arizona, legalization advocates are hoping to take advantage of a second chance.

A ballot initiative to legalize REC was narrowly defeated in 2016, but polling data suggests wider support this year for Proposition 207, the Smart and Safe Arizona Act. A pair of independent polls released this month found that 55% and 56% of voters, respectively, supported the measure, while just 37% and 36%, respectively, opposed it.

If the measure passes, Arizona, a state of 7.3M residents with an already established MED market, would join neighbors Nevada and California in establishing a REC market.

Prop. 207 would tax cannabis sales at 16%, a rate that state analysts predict could generate between $250M and $300M in annual tax revenue after a few years. Those tax dollars have been earmarked for community colleges, local law enforcement, state transportation programs and public health.

Armentano, with NORML, noted that the Arizona results could have a dramatic impact, as the state is the last in the nation in which even minor possession offenses can be charged as felonies.

4. Smaller ‘red’ states

Voters from the traditionally Republican stronghold states of Mississippi, Montana and South Dakota will have the opportunity to vote on multiple measures that could establish REC or MED markets.

South Dakota is the first state to include measures for both REC and MED on the same ballot. Measure 26 would establish a MED program, while Amendment A would legalize REC for anyone older than 21.

In Mississippi, voters will be asked to decide on a pair of competing MED measures – one, Initiative 65, developed by an advocacy group and another more restrictive measure, Initiative 65A, that was developed by the state’s Republican-controlled legislature.

Legalization advocates have raised concerns that the dueling measures – as well as a preceding ballot question that asks if the voter approves either measure – will confuse voters. Polls suggest the measures will be closely decided.

Montana voters will also be asked to choose between competing measures, though both are for REC legalization. One, Constitutional Initiative 118, would basically just legalize, while the other, Initiative 190, would legalize a market for those 21 and older, levy a 20% tax on sales and establish a regulatory framework.

Advocates predict that legalization in typically red states like Mississippi, Montana and South Dakota could lead to a true bipartisan push for federal legalization.

“It’s becoming normalized for people,” Matthew Schweich, deputy director of the Marijuana Policy Project, told USA Today. “People know that other states are legalizing it and the sky has not fallen.”

5. Trump v. Biden

The presidential race also figures to impact the prospects of federal legalization, though no one is quite sure exactly how.

Neither President Donald Trump (R) nor Democratic challenger Joe Biden has offered much on the topic, though Sen. Kamala Harris, Biden’s running mate, was the chief sponsor of the MORE Act, a legalization bill set to be voted on by Congress after the election.

It’s generally thought that Democrats are more likely to support legalization efforts, but many pundits have pointed out that Trump defies convention.

Garrett Graff, an attorney with Hoban Law Group, which represents cannabis businesses, said he is skeptical either candidate will bring major change for the industry. Graff, in a conversation last month with WeedWeek, argued that the Senate and House races would likely matter more.

“Neither of them can necessarily, or is likely to, act without there first being a vote and approval by the House and Senate [on a potential legalization bill],” he said. “Because I suspect that that’s unlikely in the near term, I suspect that legalization at the federal level is probably a few years away, potentially as a political chip to be used leading up to the 2024 election.”

Still, others think that Trump, if re-elected, could use legalization to garner support for initiatives in a second term. Or he could even use the issue to campaign for a third term, Tom Zuber, a managing partner of the Zuber Lawler firm, told WeedWeek.

“I do think he cares about the money, including the money that the federal government can access,” Zuber said. “I think that part of him has said, and would continue to say, ‘OK, why aren’t we taxing this stuff?’ That’s a very good question.”

Most analysts, however, point to a Biden victory and Democratic control of the Senate as the best-case outcome for legalization advocates.

“A GOP-led Senate, combined with a Trump re-election, would arguably maintain the existing status quo and limit or eliminate any prospects of federal reform in the near future,” said Armentano, the NORML executive. 

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