Observations & Predictions for Election Day

by Rob Kampia

Regardless of the upcoming election results, Nov. 8 will certainly be the most significant day in the history of the movement to end marijuana prohibition in the United States.

The two previous tipping points were the elections in November 1996, when California legalized medical marijuana, and November 2012, when Colorado and Washington voted to regulate cannabis like alcohol. November 2016 is even more significant because, a) this presidential race will have a real impact on the marijuana industry, b) Election Day will see a record number of statewide marijuana ballot initiatives, and c) those initiative votes are in states that comprise approximately 27% of the American population.

Let’s take a look at the presidential race first. Most people know that Donald Trump and Hillary Clinton have similar positions on marijuana, in that they basically support the right of states to determine their own policies, which is the core of what we need on the federal level.

But there are four more interesting observations, three of which are positive.

  • Clinton had only one opportunity to vote on marijuana policy while serving in the U.S. Senate, when she voted our way in committee, which was contemplating moving marijuana from the U.S. Justice Department’s jurisdiction to the FDA’s jurisdiction. (Clinton and MPP prefer keeping marijuana under the purview of the DOJ.)
  • The extraordinary popularity of Gary Johnson as the Libertarian Party’s presidential candidate illustrates that marijuana legalization enjoys enthusiastic support from a sizable minority of the electorate. This could push Clinton or Trump in a libertarian direction.
  • If Trump is elected president, the real damage would result from his likely appointment of New Jersey Gov. Chris Christie (a Republican) as attorney general. In taking over the DOJ, Christie would tear up the Cole memo, which has allowed marijuana businesses to operate under various states’ laws without federal interference since 2013. This would be devastatingly bad.
  • Republican voters’ dissatisfaction with Trump will likely depress their turnout on Nov. 8, which means that marijuana ballot initiatives will benefit from an electorate that’s less Republican/prohibitionist than usual. For example, the legalization initiative in Arizona could pass simply because of Trump’s unattractiveness.

Speaking of ballot initiatives, as many as 10 states will be voting on statewide marijuana initiatives – five seek to regulate marijuana like alcohol, four would legalize medical marijuana, and one (in Montana) would improve an existing medical marijuana law and pave the way for state-legal MMJ businesses. I’m not including Michigan in this bunch, because I don’t see a realistic path for the adult-use proposal to get on the ballot in that state.

Because it’s impossible to know how much money the opposition will spend, it’s impossible to predict the outcomes in the 10 states until three weeks before Nov. 8. But if the opposition behaves approximately the same as they have in recent elections, the most likely outcome would be nine marijuana victories in 10 states.

Here’s a closer look at the situation for each measure:

Best Odds for Adult-Use Legalization

The two most likely states to regulate adult-use marijuana are California and Maine, where public support has been high and steady for a long time. If the opposition fails to raise and spend huge sums of money on scary TV ads, these elections are over.

Best Odds for Medical Legalization

As for medical marijuana initiatives, they’re sure to pass in Missouri (whose government is expected to certify the initiative for the ballot) and Montana. The polling in Missouri has always been great; in Montana, both sides of the medical marijuana debate are likely to agree that it’s better to regulate MMJ distribution than not.

Solid Odds for Adult-Use or Medical Legalization

Massachusetts, which will have an adult-use measure on the ballot, and Florida, which will vote on legalizing medical cannabis, are the fifth and sixth most likely to pass this fall. Polling is solid in both states, but the opposition is raising real money to run scary ads in both states. That said, if the advertising ratio is two-to-one in our favor, we’ll win; but if the ratio is the reverse, we’ll lose.

Tough but Winnable for Adult-Use

Arizona and Nevada represent the two most interesting states, because we’re running – and need to run – aggressive campaigns that attack our opponents’ hypocrisy (receiving money from the alcohol industry) and illegal campaign-finance reports. In Arizona, prosecutors began organizing against MPP’s initiative before it was even drafted. Since then, the Arizona Chamber of Commerce and the ownership of the Arizona Diamondbacks are donating gobs of money to keep marijuana illegal. In Nevada, the opposition has been less impressive, but some of our allies are strangely claiming that victory is inevitable because it’s legal to spend money on gambling and sex; this sounds more like a desperate excuse not to donate money than a smart political analysis.

Coin Toss for Medical

  • In North Dakota, the ninth state, a truly grassroots campaign has collected a sufficient number of signatures to place a medical marijuana initiative on the ballot. It’s a coin toss as to whether this initiative will pass now that it’s on the ballot, as public opinion has always been mediocre in North Dakota, and medical marijuana has failed at the ballot twice before in its sister state, South Dakota. On the other hand, those South Dakota elections didn’t have the benefit of a high-turnout presidential election.
  • Arkansas represents the true tragedy of this election. A wonderful coalition of patients and activists qualified a strong medical marijuana initiative for the ballot with very little funding, but one selfish consultant and two greedy businessmen have been promoting a nearly identical initiative for the same ballot. If the first initiative appears alone on the ballot, it’s likely to pass, because a similar initiative failed by only 30,000 votes in November 2012. But if both initiatives appear on the same ballot, both would certainly fail. This would make Arkansas the stupidest political mistake in the history of this movement, eclipsing the stupidity of the so-called legalization initiative that Ohio voters trounced with 64% of the vote in November 2015.

The biggest variable at play in each of these is whether our side will sabotage itself with infighting, competing initiatives and insufficient funding. This movement is at a crossroads, with some traditional philanthropists wondering whether it’s time to let the for-profit cannabis industry pay for its own future, while the industry is contemplating whether it can afford to do so. In any case, it’s nice to be in a position where only money is needed to win; this wasn’t the case just six years ago. We are the masters of our own destiny.

Rob Kampia is the co-founder and executive director of the Marijuana Policy Project in Washington, D.C.

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