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Civic Engagement and VotingMarijuana Legalization

Cannabis and the 2020 Election: Americans’ Changing Views on Legalization

December 3, 2020

Overview

Even though cannabis is still illegal under federal law, most Americans (91%) favor the legalization of cannabis either for medical or recreational use.  The data can be broken down further to reveal that 59% of Americans support legalization for both medical and recreational uses, while 32% only support legalization for medical purposes.  This accepting view of cannabis was apparent in the 2020 election, with five states legalizing cannabis through ballot measures.

Arizona, New Jersey, and Montana legalized recreational cannabis for individuals age 21 and older. Mississippi legalized medical cannabis for a broad spectrum of medical conditions and South Dakota became the first state to legalize medical and recreational cannabis at the same time.  Most states legalize medical cannabis before they legalize recreational use.  This progression results from the varying social values placed on these two uses and it gives states the opportunity to refine a regulatory system for medical cannabis before they undertake the larger recreational market.

With these successful ballot measures, 36 states and the District of Columbia have legalized medical cannabis and 15 states and the District of Columbia have legalized recreational use. This legal landscape is far different from 1996 when California was the only state to have legalized medical cannabis and 2012 when Colorado and Washington became the first states to legalize recreational use.

With the legalization trend, it is important to understand the legal process behind the ballot measures that have been central to changing state cannabis laws.

Ballot Initiative Process

Arizona, Mississippi, Montana, and South Dakota used the initiative process to change their cannabis laws.  The initiative process allows citizens to circumvent their state legislature by placing proposed statutes and, in certain states, constitutional amendments on the ballot. Currently, 24 states have a ballot initiative process provided for in their state’s constitution. There are two types of initiatives processes that states have adopted: direct and indirect.

The direct process allows qualifying proposals to be placed directly on the ballot, while the indirect initiative process requires the proposal to be reviewed by the state legislature before it can be placed on the ballot. When an initiative is before the legislature, (1) the legislature can approve the measure and the initiative becomes law, (2) the legislature can reject or take no action, which sends the initiative to the ballot for a public vote, and (3) some states allow the legislature to submit a competing measure that appears on the ballot with the original initiative.

Mississippi utilizes the indirect initiative process and when its legislature reviewed the ballot initiative for medical marijuana, it decided to submit a competing measure that restricted the use of medical cannabis to terminally ill patients. When presented with the original initiative that allowed broader access to medical cannabis and the state legislature’s proposed alternative, the voters of Mississippi selected the original proposal by a vote of 723,931 to 336,787.

However, before an initiative can be placed on the ballot or go before the legislature, it must be qualified. While this process varies among states, there are five common elements across jurisdictions.

  1. The proposed initiative must be filed with the appropriate state official. 
  2. The initiative must be reviewed for compliance with relevant state laws. For example, South Dakota has a single-subject rule for all ballot initiatives. This rule limits the ballot initiative to one issue or subject and is meant to make the ballots easier for voters to understand. It also prevents the combining of unrelated and unpopular provisions with popular provisions, to secure support for the less popular policy.
  3. The initiative is prepared by the state for the ballot, given a title, and a summary. 
  4. The initiative petition must be circulated to obtain the requisite number of signatures from registered voters.  The signature threshold is usually a certain percentage of the votes cast in the previous general election for a statewide office (e.g., Governor). For example, Mississippi requires signatures equal to 12% of the total number of votes cast for governor in the last gubernatorial general election. 
  5. The petition must be submitted to state election officials to verify the signatures on the petition.

Once the initiative is qualified, it goes directly on the ballot or is reviewed by the legislature, depending on whether the state utilizes a direct or indirect ballot initiative.  But once on the ballot, the requirement for passage is a majority vote (more votes in favor of the initiative than against it).  However, some jurisdictions also place a minimum vote quota on the ballot initiative. For example, in Mississippi the ballot initiative must secure a majority vote, but this majority must represent 40 percent of the votes cast in that election.

Referendum Process

New Jersey used a legislatively referred constitutional amendment to get marijuana legalization on the ballot this year. This process differs from the initiative process in that it is commenced by the state legislature rather than the people. To get a constitutional amendment on the ballot in New Jersey, both legislative bodies must pass a resolution by a three-fifths (60%) majority vote. New Jersey passed its resolution on December 16, 2019, placing the question of whether the state constitution should be amended to allow recreational marijuana on the 2020 ballot.

Future Change

This election reinforced that Americans are changing their views on cannabis and the ballot measure is a key tool in enacting this new view. This is especially true for the ballot initiative that allows citizens to bypass the state legislature. Will this legalization trend at the state level pressure the federal government to reassess the Controlled Substances Act’s criminalization of cannabis?  Also, will the new presidential administration catalyze this reevaluation? The potential for change is tangible and the Network will keep you abreast of changes in cannabis policy that are critical to the Public’s Health.

This post was developed by Mathew R. Swinburne, associate director, Network for Public Health Law—Eastern Region Office.  The Network for Public Health Law provides information and technical assistance on issues related to public health.

The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.