While the votes for president may have taken a few days to sort out, there was one clear winner on election night: cannabis.
Voters in five states, including three with deep conservative and Republican leanings, approved ballot measures legalizing recreational or medical marijuana programs — or both — within their borders. New adult-use programs were approved in Arizona, Montana, Nevada, South Dakota and New Jersey — which was viewed by many as the biggest prize of the night and potentially a sign of what’s to come in the Northeast. Voters in Mississippi and South Dakota also approved medical programs.
“There’s a special kind of breed of politics in the western states. They’re all very populist and libertarian. I think that could result in seeing some more surprises (in red states).”
NACB executive vice president and chief operating officer
Approximately 21.2 million additional Americans will now have access to legal cannabis, bringing the number of adult-use states to 15 (plus the District of Columbia) and the number with comprehensive medical programs to 36. According to Headset, the new markets could bring in an additional $4.5 billion in sales by 2023.
“The legalization of recreational cannabis in four more states is a huge step forward for the cannabis industry. These new laws will not only impact these states themselves, but will also motivate other states that have not yet legalized recreational cannabis to do so sooner than they otherwise might. For instance, it’s easy to imagine how legalization of recreational cannabis in New Jersey might motivate neighboring states of New York, Pennsylvania and/or Connecticut to also legalize recreational cannabis.”
Zuber Lawler managing partner
In addition to the victories in cannabis, Washington, D.C. and Oregon voters each approved broader drug reforms. In the District of Columbia, more than 76% of voters passed an initiative decriminalizing hallucinogenic plants, including psilocybin mushrooms. More than 55% of voters in Oregon approved Measure 110, making possession of all drugs, including heroin and cocaine, a civil offense, punishable by a small fine instead of jail time.
“It was definitely a good day,” said Morgan Fox, media relations director of the National Cannabis Industry Association, adding that the varied nature of each state is indicative of rapidly spreading support for legalization across the country.
Mark Gorman, executive vice president and chief operating officer of the National Association of Cannabis Businesses, agreed and said he thinks legalization will be “infectious” and spread to neighboring states, particularly in the Northeast, where New Jersey legalization and rapid movement to begin crafting regulations would be a motivator to its neighbors like New York, Pennsylvania, Connecticut, Delaware and Maryland. In addition, Gorman said that the support the voter initiatives received in deep red states like Mississippi and Montana could affect the opinions of the congressional delegations that represent those states and their fledgling industries, which could have an even bigger impact nationally.
“Every time a state legalizes, it compels the senators and congressmen to fall in line when it comes to voting in Washington, D.C.,” he said.
With new views on cannabis, Congress could be more likely to pass the MORE Act, which would decriminalize cannabis and expunge convictions for non-violent cannabis offenses. In addition, banking reform — such as the SAFE Act — could also see movement in the new Congress.
“If you look across the country, the electorate is decided on this issue. If you can win recreational in deep-red South Dakota and medical in Mississippi, then the issue is just over.”
Copperstate Farms general counsel
President-elect Joe Biden has opposed federal legalization in the past and was, at best, a lukewarm supporter of cannabis reform during the presidential campaign. Vice President-elect Kamala Harris is a sponsor of the SAFE Act and has generally taken a more progressive stance on cannabis than the next commander in chief.
“With the new Biden administration there is real potential for accelerated cannabis legalization efforts at the federal level,” said Headset co-founder and CEO Cy Scott. “Given the administration’s interest in criminal justice reform, combined with how well legalization efforts did at the state level during the election, federal change will happen soon, removing roadblocks like banking limitations and tax code limitations, really unlocking the massive opportunity that is cannabis.”
Experts agree that the wave of legalization that began in 2012 with Washington and Colorado will continue in the future. Fox said he believes national legalization, though it may happen incrementally, is inevitable.
“At some point it becomes politically indefensible not to move,” he said.
“I think we can also look at the likelihood of much more cannabis friendly members of various agencies and administrations than we had under the trump administration as well as the potential for some executive action such as reinstating the Cole Memo or fixing the cannabis-related immigration issues or improving veterans access through the VA.”
NCIA media relations director
A decade after voters approved medical marijuana sales, Arizonans approved Proposition 207, allowing recreational cannabis sales and giving residents the ability to apply for expungement of criminal records for past marijuana-related offenses.
The state’s vertical licensing structure, where a single license grants the ability to grow, process and sell cannabis, will remain intact. The 131 existing medical marijuana licenses will be grandfathered into the rec program and 26 additional licenses for social equity applicants will be granted. Adult-use cannabis sales could begin as early as March, but some people believe Q2 is a more realistic expectation.
“As a citizen of Arizona, I can see that people want that liberty, but as a doctor I’m concerned. … As a business owner it’s definitely going to negatively impact my practice because without proper education people will think they can just purchase marijuana recreationally and it’s the same as getting it from a doctor. It’s not. It’s like recreational is over-the-counter strength and medical marijuana is prescription strength.”
Dr. Elaine Burns
DrBurns’ ReLeaf founder and CEO
Southwest Medical Marijuana Physicians Group medical director
Under Arizona’s Voter Protection Act, the guidelines set forth by Proposition 207 can only be altered by another ballot initiative and not by the state’s Legislature.
“It should be business as usual but just twice as busy,” said Ryan Hurley, general counsel for Copperstate Farms.
Proposition 207 levies a 16% excise tax on cannabis sales at retail, one of the lowest rates in the country.
Hurley said the low tax rate and limited number of licenses will keep the market relatively stable for existing licensees while boosting interest from investors.
“It does make Arizona very attractive to investors and businesses looking to consolidate,” Hurley said. “I expect mergers and acquisition activity will continue to pick up from multi-state operators.”
Matt Pinchera, president of Hana Meds, said Proposition 207 will “provide much needed tax revenue for the state to support different areas of education, public safety, public health and growing infrastructure to continue to build the Arizona cannabis industry.” Smart and Safe Arizona, the authors of Proposition 207, project the state to earn $300 million annually from cannabis taxes.
“Overall, there are a lot of positive outcomes from this proposition passing that we think will improve the cannabis industry in Arizona,” Pinchera said.
Harvest Health & Recreation, the Arizona-based multi-state operator that has become one of the industry giants in recent years, donated more than $1.4 million to the campaign supporting Proposition 207. In an earnings call following the November election, Harvest CEO Steve White told investors the combination of the Voter Protection Act and the limited number of available licenses make Arizona “uniquely significant” in terms of stability.
“Needless to say, we are more optimistic on the market potential, and we believe that the market will exceed $2 billion at maturity,” White said.
In what was easily one of the biggest surprises of the 2020 election, Mississippi voters passed a citizen-led initiative to legalize medical marijuana. But it wasn’t just the passage of Initiative 65 that was a shock; it was the margin of victory, with a whopping 74% of voters supporting the ballot measure.
“We’re traditionally last to the party in a lot of things, but this is an issue Mississippians really care about,” said Conner Reeves, an advisor to the Medical Marijuana 2020 campaign and an attorney at McLaughlin PC, a law firm in Jackson that specializes in representing clients in highly regulated industries like alcohol, food manufacturing and now medical marijuana.
Proponents of the measure say it will create a comprehensive medical marijuana program that is both business- and patient-friendly. Medical cannabis can be used to treat 22 specific conditions, including HIV/AIDS, cancer and epilepsy. The state Department of Health is required to adopt regulations by July 1, 2021, and to begin issuing patient ID cards and business licenses by August 15. The program was designed to be self-sustaining, with all state revenue required to be reinvested in the program. Local jurisdictions cannot ban medical marijuana operations or create onerous zoning restrictions. Vertical integration is allowed, but not mandated, and there will be no caps on licenses.
“We looked at states with caps on licenses, and all that resulted in was lawsuits and delays and monopolies on licenses,” Reeves said.
Sally Kent Peebles, a partner at Vicente Sederberg, one of the nation’s leading cannabis law firms, said patients are ultimately going to benefit from competition, which means greater access, lower prices and a wider selection of higher quality products.
“Hopefully,” Reeves added, “looking back 10 years from now, people can say, ’Wow, Mississippi really led the charge on doing this the right way from the beginning.’”
In Mississippi, if a citizen-led initiative qualifies for the ballot, the state Legislature has the option to put its own competing amendment alongside the citizen-led initiative. In the case of medical marijuana, the Legislature-sponsored Alternative 65A received just 26% of the vote. That bill was largely a shell giving the Legislature the authority to create a program without establishing many of the details of said program.
Jamie Grantham, communications director for the Medical Marijuana 2020 campaign, said the difference between the two initiatives was “night and day.” Initiative 65 was clearly defined and written with help from physicians; its focus was the patients and alleviating suffering. Alternative 65A “was only ever supported by politicians and bureaucrats,” she said.
Peebles said she believes the victory will help push Mississippi’s prohibitionist neighbors — including Alabama and Tennessee — into action, while clearing the way for states like Arkansas, Florida, Georgia and Louisiana to expand access to cannabis.
“I really hope this is the fire that spreads throughout the South,” she said. “Mississippi is going to hit the ground running and there’s going to be so much success and so much positivity from it. Having the Southern stronghold of Mississippi take this bold step, I’m really hoping the nearby states will take notice.”
Montana is taking another shot at marijuana as voters passed two initiatives to legalize adult-use sales this November.
Initiative 190 allows regulators to create an infrastructure for recreational marijuana, provides expungement opportunities to people with cannabis-related convictions and establishes a 20% excise tax on non-medical cannabis sales. Constitutional Initiative 118 allows the Legislature to amend the state’s constitution and establish a legal age for purchasing and consuming marijuana.
“I am hoping for the best but preparing for the worst, just like we do every time there are any changes to the medical program,” said Justin Turcotte, owner of the medical marijuana dispensary Ember.
Turcotte says he expects “that there will be a lot of nonsensical rules and restrictions placed on recreational cannabis providers in the future” and that “there is going to be a legal battle on some of these things moving forward.”
“People are tired of driving to Colorado or Washington to buy cannabis without ending up on a registry. They want to be able to walk into a store and purchase cannabis in their home state.”
Turcotte has operated through numerous changes to the state’s medical marijuana program and remains hopeful that legislators will honor the will of the voters by building an adult-use market that is open to businesses of all sizes.
“I think the regulatory structure is going to be the biggest concern,” Turcotte said. “I really hope the state of Montana and the legislators from Montana do not put unattainable financial restrictions on licensing in an effort to undo what the voters want.”
Although Initiative 190 passed with 56.9% of the vote and Constitutional Initiative 118 passed with 57.7% of the vote, the Montana Legislature website already lists a draft of a bill to repeal Initiative 190. The state’s next Legislative session begins January 4.
“We are in an economy that needs rebuilding.”
Cannabis Business Advisors president and director of licensing
The Business Bureau of Economic Research at the University of Montana published a report stating that cannabis sales from 2022 to 2026 will net the state more than $236 million in revenue.
The Department of Revenue must finalize the rules and regulations and start accepting applications for adult-use marijuana by October 2021.
Initiative 190 does not cap the number of licenses issued in the state. Municipalities can limit how many operators are allowed in their region, but they cannot prohibit businesses from being established.
Montana Cannabis Industry Association government affairs representative Kate Cholewa said her organization is going into the rulemaking process with the hopes of protecting longtime operators from the “green-rush activity” that disrupted many other state markets.
“Can we avoid the absurd cycles?” Cholewa said. “Let’s try not to have a shortage followed by a glut followed by crashed prices.”
More than two-thirds of New Jersey voters made the Garden State the largest legal cannabis market on the East Coast, enshrining in the state’s constitution the ability to grow, possess and sell marijuana beginning January 1.
“It was definitely a rousing success,” said an exhausted Axel Owen, campaign manager of NJ CAN 2020, the group created in support of the state’s ballot initiative.
Population: 7.3 million
Estimated cannabis revenue: $2.3 billion by 2025
The Skinny: Proposition 207 legalizes possession and use of marijuana by adults, enacts a 16% tax on marijuana sales and requires the state Department of Health to develop regulations.
Voters in favor: 60.03%
Noteworthy: This is the state’s second ballot measure on adult-use legalization; the first failed in 2016 with 51.3% of voters opposing.
Why it matters: The grandfathering of medical license holders and limits on the number of licenses issued should make Arizona very attractive to investors and multi-state operators.
Population: 3 million
Estimated cannabis revenue: $66 million by 2025
The Skinny: Initiative 65 amends the constitution to provide for a medical marijuana program under the direction of the Department of Health for individuals with one of 22 qualifying medical conditions
Voters in favor: 68.5%
Noteworthy: Initiative 65 creates an industry-friendly medical marijuana program, similar to that of Oklahoma, in which there is no cap on licenses and local municipalities cannot ban cannabis operations.
Why it matters: Proponents hope that success in Mississippi could be the domino that leads the entire South to embrace cannabis reform.
Population: 1.1 million
Estimated cannabis revenue: $308 million by 2025
The Skinny: Initiative 190 legalizes the possession and use of marijuana for adults, imposes a 20% tax on marijuana sales, requires the Department of Revenue to develop rules and allows for the expungement of marijuana-related crimes.
Voters in favor: 56.9%
Noteworthy: This is the third legalization measure passed in Montana (the first two were for medical marijuana) and the third time lawmakers have attempted to repeal or restrict the will of the voters.
Why it matters: A University of Montana study found that cannabis tax revenues could add more than $236 million to state coffers by 2026.
Population: 8.9 million
Estimated cannabis revenue: $2 billion by 2025
The Skinny: New Jersey Public Question 1 creates a constitutional amendment legalizing marijuana. However, the amendment requires the Legislature to create the specifics of the program, leaving many important questions up in the air.
Voters in favor: 67.01%
Noteworthy: The opposition to the amendment only raised $8,875, including a donation of $5,000 from a single source.
Why it matters: Just as Mississippi could be a tipping point for medical marijuana in the South, New Jersey is seen as the first domino that could bring recreational cannabis to the entire northeast, including New York and Pennsylvania.
Estimated cannabis revenue: $144 million by 2025
The Skinny: Measure 26 establishes a medical marijuana program for patients with debilitating medical conditions. Constitutional Amendment A legalizes the recreational use of marijuana.
Voters in favor: 69.92% (medical); 54.18% (recreational)
Noteworthy: South Dakota is the first state to legalize medical and recreational cannabis on the same day, considered by many to be the biggest surprise among the five states voting on marijuana reforms.
Why it matters: According to experts, the congressional delegations of states that legalize tend to vote more favorably on issues relating to the cannabis industry, regardless of party, which could help break the logjam of cannabis-related legislation in Congress.
*Source: Projected revenue, according to New Frontier Data
Cannabis is more popular than …
The November election saw an overwhelming turnout of people eager to cast their presidential ballots and vote in favor of cannabis legalization, but considerably less enthusiastic about other initiatives and political races.
“The country seems to be pretty divided on a lot of issues, but this is one issue there doesn’t seem to be a divide anymore,” said Charles Alovisetti, an attorney with Vicente Sederberg in Boston. “The public opinion has shifted dramatically.”
Gallup chronicled the shift as well: the latest polling shows 68% of Americans think cannabis should be legal, up two percentage points from a year ago.
Alovisetti said the election results from a state like South Dakota — which passed medical marijuana and adult-use cannabis in the same election — could give renewed optimism for activists in states without legal marijuana.
“I don’t think there’s any state in the union right now that a well-crafted initiative, at least for medical, couldn’t be successful,” Alovisetti says.
Sam D’Arcangelo, the project manager of HeadCount’s Cannabis Voter Project, said he believes lawmakers on both sides of the aisle are going to be reevaluating their positions on marijuana after the glowing voter turnout for cannabis initiatives during the 2020 election.
“It’s immensely popular, and it cuts across party lines,” D’Arcangelo says.
Just how popular was it in the 2020 election?
– In Arizona, more than 1.9 million residents voted in favor of legalizing recreational marijuana. That’s more than all the votes for Republican candidates for the House of Representatives put together, which totaled about 1.64 million. But before Democrats double over with laughter, it should be mentioned that cannabis is also more popular than their candidates for the House of Representatives who received 1.63 million votes.
– Cannabis was also more popular than Proposition 208, an initiative to fund education in the state, which passed with more than 1.6 million votes.
– While President Trump is wildly popular in Mississippi — winning the state’s six electoral votes with 754,213 votes for a second term — medical marijuana is even more popular, with 784,163 residents voting in favor of “the most liberal weed rules in the US,” according to Governor Tate Reeves, who, for what it’s worth, only received 459,396 in his 2019 election to the state’s highest office.
– In Montana, legal weed is even more popular than the unfettered rights of the Second Amendment. Initiative 190, the legalization measure, received 337,292 votes, while Referendum 130, a bill to remove local governments’ authority to regulate the carrying of permitted concealed weapons, passed with just 298,498 votes.
– Although President-elect Joe Biden won New Jersey’s 14 electoral votes by a landslide, and Senator Cory Booker won re-election with ease, neither politician could match the 2.66 million votes cast in favor of pot — about 100,000 and 200,000 voters more than Biden and Booker, respectively. Not surprising, though, was that 343,547 more voters found legalizing weed a lot more exciting than postponing the state’s legislative redistricting schedule.
– And in South Dakota, voters narrowly preferred legalizing sports gambling over cannabis — by a margin of 14,356 votes — but ultimately passed both and will make sporting events a little more interesting in 2021. However, neither of those initiatives could hold a candle to the state’s medical marijuana proposal, which received an incredible 291,754 votes. In fact, medical cannabis was more popular than anyone or anything on the South Dakota ballot with the lone exception of Dusty Johnson, the Republican House of Representatives incumbent that South Dakota voters find so darn loveable, who received 321,984 votes.
— Patrick Wagner
The vote, however, is non-binding. It now goes back to the Legislature to draft legislation and implement the ballot measure, which unlike other states, did not include implementation language, aside from placing the state’s legal market under the purview of the Cannabis Regulatory Commission, which currently oversees the state’s medical program.
Owen said the timeline for a bill remains the “million-dollar question,” but he believes the election result is a mandate from voters that they want sales to begin as soon as possible. Owen said he expects New Jersey lawmakers to move “very, very quickly” to get a law passed and signed. After that, it moves to the commission for regulations and oversight. By press time, the New Jersey Senate had already passed a decriminalization bill and lawmakers were at work on details of the state’s regulations.
“This is a vital first step for shifting away from punitive cannabis prohibition and toward a regulated market that prioritizes racial and social justice,” ACLU-NJ campaign strategist Ami Kachalia, on behalf of New Jersey United for Marijuana Reform, said in a press release. “Now, we call on New Jersey legislators and the governor to implement the vision of cannabis legalization that voters have pushed forward — one that begins to repair the harms of marijuana prohibition and creates an accessible and inclusive new cannabis industry.”
The vote will make New Jersey, with its 8.9 million residents and $85,000 median income, the largest legal cannabis market on the East Coast, with the potential for billions of dollars in annual sales. According to New Frontier Data, the New Jersey market could pass $2 billion in revenue by 2025.
Owen said New Jersey could also be “the biggest domino,” leading to a chain reaction of Pennsylvania, New York and other heavily-populated northeastern states accelerating their own legalization efforts so as not to lose revenue to their neighbor.
South Dakota voters made history in November, but the groundwork for legalizing both medical and adult-use marijuana in the same election was laid over the past six years through a grassroots effort to bring cannabis reform to the traditionally conservative Midwestern state.
“I’m incredibly proud of us, and I cannot speak highly enough of the team that we worked with and the volunteers in South Dakota,” said Melissa Mentele, executive director of New Approach South Dakota, the group that put the two measures on the ballot. “There are so many amazing people that stood beside us and helped and gave time and money and took time away from their families.”
Mentele said success was the result of educational campaigns and having conversations with people about cannabis, not necessarily to change their minds immediately, but to “plant the seed” of curiosity.
“I have worked every single fair, worked every carnival, walked in every parade, sat outside every courthouse and traveled to every corner of the state,” she said.
Amendment A, the adult-use bill, which also included a provision for hemp, passed with 54% of the vote. Measure 26, a comprehensive medical marijuana bill that creates the infrastructure of a program, passed with 70% of the vote. Both bills have to be implemented by July 1, 2021.
“No state has ever moved from marijuana prohibition to allowing both medical use and adult-use access, quite literally, overnight,” NORML executive director Erik Altieri said in a press release.
But for Mentele, the results were far from “overnight.”
“When you get into policy work, you give up a lot,” she said, “and I’ve been doing this for six years nonstop.”
People often told her nobody wanted legal marijuana in South Dakota. People would ask, “Why don’t you just go back to being a nurse? Why don’t you stay at home with your kids? Why don’t you just take more hours at the bank?”
Her response: “I’m teaching my children not to give up. You can’t be a hypocrite and not practice what you’re preaching.”
And now that she’s helped usher in the most substantial drug reform in South Dakota history, she said she’s finally going to take a break and just be a mom for a little while.
Pivot to Digital
When the coronavirus pandemic hit, political groups across the country were forced to put traditional campaign methods on hold.
Although President Donald Trump continued to host campaign rallies with no concern about spreading COVID, most in-person events were canceled or severely limited, cutting off a major pipeline for hopeful politicians and advocacy groups to meet their constituents and promote their agendas. Many groups shifted their energy to social media and text messaging.
In South Dakota, in the week leading up to election day, supporters of two cannabis legalization measures sent out more than 400,000 text messages using Outvote, an app that facilitates text messaging for political campaigns.
“That was one of the things that really made a difference in our campaign,” said campaign manager Melissa Mentele. “I strongly encourage anybody that has to run a progressive campaign to try Outvote. It was worth every single penny.”
While the state’s medical marijuana bill passed with overwhelming support, the adult-use measure won by a margin of only about 35,000 votes.
Throughout the nation, much of the focus was simply on pushing voter turnout, particularly with many states allowing mail-in voting for the first time. That’s the primary objective of HeadCount, for example, a nonprofit organization that typically promotes participation in democracy at concerts and music festivals. In lieu of live events, HeadCount — and its Cannabis Voter Project, an initiative that seeks to register and turn out voters interested in marijuana reform — ran successful text-messaging campaigns and also leveraged the social media followings of artists and brands to spread the word.
With more than 420,000 voter registrations in this past cycle, the organization just posted its best year ever, said Sam D’Arcangelo, project manager of the Cannabis Voter Project.
D’Arcangelo said the success of this year’s election has the potential to change the way politicians and activists alike approach the subject of marijuana.
“No one would have believed two years ago that South Dakota and Montana would legalize marijuana before New York. That kind of thing changes the paradigm,” he said. “At the state level, you’re going to see a lot of activists on the ground emboldened by these victories,” he said. “It tells activists they’ve got a chance of passing (legalization measures) pretty much anywhere if you can get it on the ballot.
— Garrett Rudolph