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Marijuana legalization may hit 40 states. Now what?

Changes in state laws could usher in even more confusion for law enforcement and escalate the pressure on Congress to act.

More than 40 U.S. states could allow some form of legal marijuana by the end of 2020, including deep-red Mississippi and South Dakota — and they’re doing it with the help of some conservatives.

State lawmakers are teeing up their bills as legislative sessions kick off around the country, and advocates pushing ballot measures are racing to collect and certify signatures to meet deadlines for getting their questions to voters.

Should they succeed, every state could have marijuana laws on the books that deviate from federal law, but people could still be prosecuted if they drive across state lines with their weed, because the total federal ban on marijuana isn’t expected to budge any time soon. The changes could usher in even more confusion for law enforcement and escalate the pressure on Congress to act. Federal bills are crawling through Congress, with Senate Majority Leader Mitch McConnell firmly against legalization.

But at the least, hopes will be high that federal hurdles to researching the effects of pot and restrictions on banking in the cannabis sector will ease.

“We’re cautiously optimistic that we can win more marijuana reform ballot initiatives on one Election Day than on any previous Election Day,” said Matthew Schweich, deputy director of the Marijuana Policy Project. Schweich cited growing public support for the issue among both liberals and conservatives.

The measures that make the ballot could drive voter turnout at the polls and by extension affect the presidential election.

Liberal states that allow ballot petitions have largely voted to legalize marijuana, including California, Oregon, and Massachusetts. “Now, we’re venturing into new, redder territory and what we’re finding is voters are ready to approve these laws in those states,” said Schweich, who, along with leading legalization campaigns in Maine, Massachusetts, and Michigan, served as the co-director of the medical marijuana legalization campaign in Utah.

“If we can pass medical marijuana in Utah, we can pass it anywhere.”

National organizations like his are eschewing swing states like Florida and Ohio, where the costs of running a ballot campaign are high during a presidential election. They are intentionally targeting states with smaller populations. For advocates, running successful campaigns in six less-populous states means potentially 12 more senators representing legal marijuana states.

“The cost of an Ohio campaign could cover the costs of [four to six] other ballot initiative campaigns. Our first goal is to pass laws in as many places as we can,” Schweich said.

They can’t take anything for granted, however. In Florida, where polling says two-thirds of voters want to legalize pot, one effort to gather enough signatures for a 2020 ballot measure collapsed last year, and a second gave up on Tuesday, saying there’s not enough time to vet 700,000 signatures. Organizers are looking to 2022.

And many legislative efforts to legalize marijuana came up short in 2019, including in New York and New Jersey. Those efforts were derailed in part over concerns about how to help people disproportionately harmed by criminal marijuana prosecutions, despite broad support from Democratic-controlled legislatures and the governors.

But it helps that national groups pushing back against the groundswell of state initiatives are few and far between.

Kevin Sabet, president of anti-legalization advocacy organization Smart Approaches to Marijuana, said his group is working behind the scenes in some states ahead of initiatives making the ballot.

"Because we don’t have deep-pocketed investors, we have to be very deliberate when it comes to how we spend our resources during a costly initiative election season," Sabet said. "We’ve been on the ground in several states meeting with partners and potential allies."

Here’s what voters could face at the polls come November, and what some state legislatures are considering this session.

Recreational marijuana

New Mexico — This state will likely prove to be the first 2020 battleground. The Legislature convenes Tuesday and marijuana legalization will be near the top of the agenda. Arguably the biggest hurdle: The legislative session lasts for just 30 days.

“In terms of the hottest states for risk of marijuana legalization, New York is by far No. 1, and then right after that is New Mexico,” said Luke Niforatos, a senior policy adviser at Smart Approaches to Marijuana. “We definitely see them as an imminent threat.”

Democratic Gov. Michelle Lujan Grisham appointed a marijuana task force last year that came up with a detailed blueprint for enacting full legalization. The House passed an adult-use bill last year, but the Senate didn’t take it up. That means opponents — likely including law enforcement and the Catholic church — will focus on the Senate in trying to derail what many see as an inevitable embrace of legalization.

“The Senate is where there's always been a lot of skepticism,” Niforatos said. “It's always been an open question, since last year, if they even have the votes to pass it if it were to get to the floor.”

New Jersey — After falling short of the votes needed to legalize marijuana in the Legislature last year, New Jersey lawmakers opted to put the question before voters instead. Unlike other ballot initiatives on this list, the measure in New Jersey is one referred by the Legislature rather than a citizen petition. State lawmakers approved a resolution to put the legalization question on the ballot in December. Polls have found widespread support in the state for legal marijuana.

New York — Like neighboring New Jersey, lawmakers in New York failed to legalize marijuana in 2019, despite mostly agreeing that it should be legalized. Social justice issues were a key factor in holding up legislation, with lawmakers disagreeing on how the policy should benefit people disproportionately impacted by marijuana enforcement. They did pass legislation to expunge past cannabis convictions, but how that will be implemented remains to be seen. But Gov. Andrew Cuomo said again this month that marijuana legalization is a priority for his administration and has convened regional governors to coordinate efforts.

Connecticut — “Every legislator that I spoke to in the last six months or so has said that there would be no legalization vote this session,” said Kebra Smith-Bolden, president of legalization advocacy group Connecticut United for Reform and Equity. Lawmakers did not want to take on such a controversial topic during a short session in a presidential election year. But thanks to Cuomo’s efforts to coordinate legalization in the region, “there is talk now that this could happen, whereas before it was absolutely not going to happen.”

But Smith-Bolden is concerned that if lawmakers rush a bill under these circumstances, it could end up without strong provisions for those who took a hit by drug enforcement. She also worries that more powerful states like New York will come up “with elements of legislation that work perfectly for New York, but [aren’t] really relevant to Connecticut.”

“I just worry that [Gov. Ned] Lamont won’t take the lead,” she said.

Arizona — Five states voted on recreational legalization initiatives in 2016, and only one failed: Proposition 205 in Arizona. The margin was narrow — about 51 percent of voters rejected the measure — so chances are good for a ballot initiative this year. This year brings competing campaigns to put legalization measures on the ballot: a well-funded Smart and Safe Arizona backed by industry giants like Curaleaf, and the Arizona Cannabis Chamber of Commerce, which is critical of the former for favoring existing medical marijuana companies in the state.

The Chamber campaign is jockeying for the Legislature’s support.

But if both measures make it onto the ballot, it could “doom them both to failure,” Schweich said.

Schweich, who served as campaign director in Arizona's 2016 effort, said he “saw firsthand what happens when there’s a well-funded opposition campaign.” Pharmaceutical company Insys Therapeutics and wealthy political donor Sheldon Adelson poured money into defeating the measure. Well-heeled opponents could emerge again but likely will wait until initiatives are qualified.

Oklahoma — Sooner State voters will likely get the chance to weigh in on a recreational initiative after legalizing medical marijuana via the ballot box in 2018. The state is now home to a fast-growing industry with the highest number of medical marijuana patients per capita in the country. A proposed ballot initiative, State Question 807, backed by New Approach PAC, has been filed with the secretary of state’s office. While advocates are optimistic, a SoonerPoll last August showed more than 59 percent of voters in the state oppose recreational legalization.

Missouri — Similar to Oklahoma, advocates in Missouri are also collecting signatures in hopes of qualifying for the ballot. Both states have legislatures that are dominated by Republicans but are home to voters who approved medical marijuana legalization at the ballot box in 2018. Schweich is confident that legalization measures in both states can pass, provided the campaigns are well-funded.

Montana — A state campaign known as Coalition406 joined forces with national groups last October to form New Approach Montana. The state legalization effort, which will get help from Washington, D.C.-based groups Marijuana Policy Project and New Approach PAC, aims to legalize marijuana through two initiatives, thanks to the peculiarities of Montana’s constitution.

Activists want to put a ballot initiative to legalize marijuana for adults in the state with one initiative.

The second is required to restrict marijuana to those over 21 because the state’s constitution defines adulthood as beginning at 18 years old. It would grant the Legislature authority to raise the age of buying marijuana to 21. Campaign organizers submitted the petitions to state government officials for review last week. If they are approved by the state attorney general, advocates can begin collecting signatures to qualify for the ballot.

South Dakota — While most other campaigns haven’t made the ballot yet, both medical marijuana and recreational legalization questions in South Dakota already have been validated by the secretary of state.

Considering not a single U.S. state has legalized adult-use marijuana before legalizing medical usage, the measure seems like a long shot in a red state. But Schweich said voters are far ahead of the Legislature and governor on marijuana issues. “We’ve done public opinion research — South Dakota is ready to approve both initiatives.”

It will be the first time a state votes on medical marijuana and adult-use legalization on the same day — notable in a state where Republican Gov. Kristi Noem vetoed hemp legislation last year (though she recently came around to the idea).

“It’s weird to be running [these campaigns] in a state without [legal] hemp,” he said. But the “legislative process is often woefully out of step with what voters want [and Noem’s] position is completely at odds with the voters of South Dakota.”

Medical marijuana

Mississippi — The campaign to put medical marijuana to Mississippi voters is headed to the ballot. The secretary of state certified the measure earlier this month, prompting the state Board of Health to pass a resolution opposing the initiative.

“There are numerous known harms from the use of cannabis products including addiction, mental illness, increased accidents, and smoking-related harms,” read the resolution.

But a variety of conservatives back the effort, including four Republican state representatives. Meanwhile, a group of doctors wrote to the Board of Health this past week expressing their support for the measure.

Advocates are optimistic about medical marijuana proposals in conservative states, as long as the campaigns are sufficiently funded. “[When] presented with a patient who has a legitimate need … the vast majority of voters are sympathetic to that,” Schweich said.

Idaho — Idaho, which outlaws all types of cannabis, is a notable exception in a region filled with legal weed. The state shares borders with Washington, Oregon and Nevada, home to flourishing adult-use markets, and Canada to the north, which legalized recreational marijuana in 2018.

Marijuana activists are gathering signatures in a bid to put medical marijuana to voters in November. Organizers say they hope shifting political opinions when it comes to cannabis will mean Idahoans are ready to vote "yes" on the issue.

“The fundraising work is still ongoing, but we’re cautiously optimistic that there will be an Idaho campaign in 2020,” Schweich said.

Kansas — One of the few states left in the country that bans all forms of cannabis, Kansas does not have a ballot initiative process. Any reform efforts are up to the legislature. Kansas is now nearly surrounded by states with legal recreational or medical marijuana. While the state passed an affirmative defense bill for low-THC, high-CBD oils last year, it has not legalized medical marijuana itself. Whether there is an appetite to pass legislation in the legislature this year remains to be seen, but Democratic Gov. Laura Kelly has advocated for medical marijuana legalization on the campaign trail.

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