Who’s Next? States Eye Pot Reform After Election Day Sweep

By Willis Jacobson
Nov 5, 2020
(Photo by Spencer Platt/Getty Images)

After spending the past six years fighting to end marijuana prohibition, Patrick Dunegan said he felt a conflicting mix of “sad and excited” as he watched election returns Tuesday night from the five states ballot initiatives, all of which passed.

Dunegan was excited to see success in New Jersey, Arizona, Montana, South Dakota and Mississippi. His sadness came from the fact that his home state of Kentucky remained among a minority of states that still largely prohibits the substance.

“You’ve got bankers, doctors, lawyers – everybody’s consuming cannabis right now as we speak, but we’re in the top 10 of poorest states in our country,” Dunegan said Thursday. “C’mon now. This needs to change.”

Dunegan, the founder of the Kentucky Cannabis Freedom Coalition (KCFC), wasn’t the only activist looking to carry that election momentum to his own state.

The success of the state initiatives can create a ripple effect of states looking to capitalize on an issue that the election seemed to confirm has broad, bipartisan support. With so much still unknown on the federal level, at least a handful of states – including neighbors of some of the newly legalized municipalities – are expected to begin immediate pushes for legalization, said Marijuana Policy Project Executive Director Steve Hawkins, who predicted the number of states with REC programs would balloon from the current 15 to 25 by mid-2022.

“Then we’re at half the country and at that point there will be no more barriers because we’ll have half the senators in the country representing states that have adopted,” Hawkins said. “The momentum is on our side.”

Green envy?

It is widely expected, for example, that the successful REC ballot question in New Jersey will spur similar action in states throughout the mid-Atlantic region, including New York and Pennsylvania.

But that’s not the only region eyeing reform.

Officials and activists in New Mexico have indicated a desire to revive a push for a REC program there, particularly in light of Arizona’s election night adoption. 

And the successful MED initiative in Mississippi has activists eager to bring reforms to other states in the southeast, the most restrictive region for marijuana laws in the country. 

Hawkins said South Carolina is among those southern states likely to make a push for a MED program, while he noted that MPP will be working closely in the coming months to help push for comprehensive REC programs in Connecticut, Maryland and Minnesota.

Further, Hawkins said he wouldn’t be surprised to see activists in Georgia and Louisiana, among other southern states, try to expand or improve upon their restrictive MED programs. In Georgia, for example, only CBD oil is legal for use.

He said that activity will likely ramp up after Mississippi establishes its program and starts drawing customers from neighboring states.

“Mississippi is going to get some business in the south,” Hawkins said, as surrounding states look to capture the tax revenue from Mississippi.

‘Responsible use’

Activists commonly turn to ballot measures to enact cannabis reform, but they are not always an option.

Twenty-four states do not have a process for citizen-initiated measures, meaning those states’ most likely need to legalize through their legislatures.

Legislators in New York, Pennsylvania and Connecticut are among those who have indicated a desire to legalize.

That can be easier said than done, said Dunegan, head of the KCFC.

“We can’t put it on a ballot, so we have to lobby in front of our legislators and ask them to vote for it on our behalf, which is the difficult part because if you lobby and come out in favor of it you’re putting a big bullseye on your head,” he said, referring to the political pushback in the mostly conservative state.

Dunegan said he was hopeful that the recent electoral results in red states South Dakota, Montana and Mississippi would show lawmakers in Kentucky that there is conservative support for legalization.

He’s also getting creative.

Dunegan said he and others have proposed REC bills to state lawmakers in the past, but they didn’t go anywhere. He said he’s working with state legislators now on the “Kentucky Responsible Use Cannabis Bill.” He said the bill would replace the word “recreational” throughout with the word “responsible” in an effort to be more palatable.

“You don’t hear people saying, ‘recreational drinking’; you hear them saying, ‘responsible drinking,’” he said. “That’s how I want to approach it.”

‘Tip the scales’

The most immediate action will likely come from the northeast, said Matt Ginder, an attorney with Greenspoon Marder.

New York lawmakers have said they intend to have a bill ready for adoption by April, and other neighboring states will also likely be working to keep pace.

Ginder said he is expecting more “incremental” steps in other regions, like the south. But he said all legalization efforts represent progress.

“We’re always waiting to see what sort of tips the scales to turn the corner on federal reform, but every state that legalizes marijuana in one form or another is another step in the right direction,” he said. “We’ll eventually tip the scales.”

Hawkins, with the MPP, agreed.

He referred to the current landscape as a “unique historical moment,” and suggested the strong support for Tuesday’s ballot measures represented a national referendum on cannabis. 

“There is support across the political spectrum and the public is ahead of the politicians here,” he said. “That’s not uncommon, but it tells me that we have more allies out there in the grassroots community to help us get to the point where we see Congress ultimately de-schedule cannabis and see the end of federal prohibition.”

Dunegan, in Kentucky, said he was hopeful more people would get involved. He invited Kentucky residents to join the KCFC or the state’s NORML chapter to effect change.

“We’re not asking for money or looking for money,” he said. “We’re just trying to do the right thing and work within the laws to change unjust laws.”

“I’m thrilled,” he added of his mindset going forward. “The legalization of cannabis is coming to Kentucky one way or another. It’s just a matter of when. I don’t care who does it or how it gets done, it just has to be done for the state of Kentucky and our budget.”

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