Who really won the 2020 election? Was it Donald J. Trump or Joseph R. Biden? This is a question that will be argued for years to come. And because it is a highly partisan political question, it may never result in a satisfactory answer. There was one clear winner in the 2020 election, though, and it wasn’t Trump or Biden. This winner has won several times before, including a big win in the 2016 and 2018 elections. The one clear winner was marijuana.
There were ballot measures relating to marijuana that people in five states had the opportunity to vote on, on election day. Voters in two states (Mississippi and South Dakota) had to decide whether their states would allow the legalization of marijuana for medical use; voters in four states (Arizona, Montana, New Jersey, and South Dakota) had to decide whether their states would allow the legalization of recreational marijuana. (South Dakotans had the opportunity to vote on both ballot measures at the same time.)
There are two ways that state elections differ from federal elections. In federal elections, Americans vote only for the president/vice president, two senators (but not normally at the same time), and one member of the U.S. House of Representatives. Americans have never had the opportunity to vote for cabinet officials, federal judges, or national referendums. But on the state (and local) level, Americans have the opportunity to vote for governors, lieutenant governors, senators, representatives, judges, supreme court justices, secretaries, attorneys general, comptrollers, and commissioners, as well as ballot measures — initiatives, referendums, legislative questions, bond issues, and constitutional amendments.
According to Ballotpedia, “Voters in 32 states decided 120 statewide ballot measures on November 3, 2020.” There were 129 statewide ballot measures that were certified for the 2020 ballot in 34 states. Eight measures were decided before the November election and one, in Louisiana, on December 5. Of the 120 measures on the ballot, “40 were citizen-initiated measures, while state legislatures referred 75 measures to the ballot. One measure was automatically referred to the ballot in Iowa.” Of the 40 citizen-initiated measures, “37 were ballot initiatives — which propose new laws — and three were veto referendums — which challenge laws recently passed by state legislatures.” The total number of 129, which is down from 167 in 2018 and 162 in 2016, is the lowest number of statewide measures since at least 1980. In addition to marijuana, the subjects of these ballot questions concerned taxes, rent control, gambling, firearms, paid medical and family leave, the minimum wage, abortion, interest rates, the cash-bail system, and election policies such as suffrage, election dates, redistricting, term limits, and campaign financing.
Illegal and legal weed
The Marihuana Tax Act of 1937 effectively prohibited marijuana on the federal level. Although it was repealed in 1969, Congress enacted the Controlled Substances Act in 1970 and Richard Nixon officially declared a war on drugs in 1971. The federal government considers the growing, distributing, buying, selling, possessing, or using of marijuana to be a criminal offense, punishable by fines and imprisonment. Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act (21 U.S.C. 801). As a Schedule I drug, marijuana is said to have “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use of the drug under medical supervision.” Other Schedule I drugs include heroin, LSD, and ecstasy. Schedule I drugs may never be prescribed by a physician.
In the Supreme Court case Gonzales v. Raich (2005), the High Court ruled, by a vote of 6-3, that the Controlled Substances Act did not exceed Congress’s power under the Commerce Clause as applied to the intrastate cultivation and possession of marijuana for medical use. Therefore, the federal government has the authority to prohibit marijuana possession and use for any and all purposes. A bill (H.R.3884) to decriminalize marijuana that “removes marijuana from the list of scheduled substances under the Controlled Substances Act and eliminates criminal penalties for an individual who manufactures, distributes, or possesses marijuana” languished in the U.S. House of Representatives for a year and a half before it finally passed at the end of 2019. The Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019 would also have imposed “a 5 percent tax on cannabis products” and established “a process to expunge convictions and conduct sentencing review hearings related to federal cannabis offenses.” It was never voted on in the Senate.
Marijuana prohibition in the states actually preceded that of the federal government. It began with California, Indiana, Maine, and Wyoming in 1913, eventually spreading to all of the states. Nevertheless, before the 2020 election, thirty-three states had legalized the medical use of marijuana, eleven states had legalized the recreational use of marijuana, and the full or partial decriminalization of the possession of small amounts of marijuana had occurred in eighteen states and many local jurisdictions.
In 1996, California became the first state to legalize medical marijuana. Alaska, Oregon, and Washington followed in 1998; Maine in 1999; Colorado, Hawaii, and Nevada in 2000; Montana and Vermont in 2004; Rhode Island in 2006; New Mexico in 2007; Michigan in 2008; Arizona and New Jersey in 2010; Delaware in 2011; Connecticut and Massachusetts in 2012; Illinois, Maine, and New Hampshire in 2013; Maryland, Minnesota, and New York in 2014; Arkansas, Florida, North Dakota, Ohio, and Pennsylvania in 2016; West Virginia in 2017; Missouri, Oklahoma, and Utah in 2018. Medical marijuana has also been legal in the District of Columbia since 2010, and the U.S. territories of Guam since 2014, Puerto Rico since 2015, and the U.S. Virgin Islands since 2019.
Colorado and Washington became the first two states to legalize recreational marijuana in 2012. They were followed by Alaska and Oregon in 2014; California, Nevada, Maine, and Massachusetts in November 2016; Michigan in 2018; Vermont in 2018; and Illinois in 2019. Recreational marijuana has also been legal in the District of Columbia since 2014, and the U.S. territories of the Northern Mariana Islands since 2018 and Guam since 2019.
Decriminalization of marijuana began in Oregon in 1973. And it is in Oregon that the most radical ballot measure was recently approved by voters.
Marijuana ballot measures
Although legalization efforts usually come to fruition through ballot measures, Connecticut, Delaware, Hawaii, New Jersey, New Mexico, Rhode Island, and Vermont legalized medical marijuana through the legislative process. Illinois and Vermont did the same when they legalized the recreational use of marijuana. In 2020, bills were introduced in the Tennessee legislature to legalize medical marijuana in New Hampshire to legalize recreational marijuana. The advent of the COVID-19 pandemic stymied legislative efforts in states such as Connecticut, New Mexico, New York, and Rhode Island to legalize recreational marijuana. When asked when New York would legalize recreational marijuana, Gov. Andrew Cuomo replied, “Soon, because now we need the money. I’ve tried to get it done the last couple years. There are a lot of reasons to get it done, but one of the benefits is it also brings in revenue, and all states — but especially this state — we need revenue and we’re going to be searching the cupboards for revenue. And I think that is going to put marijuana over the top.”
According to Ballotpedia, in the 2020 election, there were six ballot measures in five states that related to marijuana.
Arizona Proposition 207 sought to “legalize the possession and use of marijuana for persons who are at least 21 years old, enact a tax on marijuana sales, and require the state Department of Health and Human Services to develop rules to regulate marijuana businesses.” It would permit individual persons to grow no more than six marijuana plants in their residences and subject marijuana sales to a 16 percent tax. Although Arizona voters defeated a similar measure in 2016, Proposition 207 passed by a margin of 60.03 to 39.97 percent.
There were two competing initiatives in Mississippi to legalize medical marijuana. Voters first chose between “either measure” or “neither measure.” Regardless of their answer, they then chose between the two initiatives. Voting for Initiative 65 meant approving “the medical marijuana amendment as provided by Initiative 65,” which would “allow medical marijuana treatment for more than 20 specified qualifying conditions, allow individuals to possess up to 2.5 ounces of marijuana at one time, and tax marijuana sales at the current state sales tax rate of 7 percent.” Voting for Alternative 65A meant approving the legislature’s watered-down amendment, which would restrict “smoking marijuana to terminally ill patients”; require “pharmaceutical-grade marijuana products and treatment oversight by licensed physicians, nurses, and pharmacists”; and leave “tax rates, possession limits, and certain other details to be set by the legislature.” “Either measure” garnered 68.52 percent of the vote. Initiative 65 was the choice of voters by a margin of 73.7 percent to 26.3 percent.
Voters in Montana likewise had two marijuana measures to vote on. CI-118 sought to amend “the Montana Constitution to allow for the legislature or a citizen initiative to establish a minimum legal age for the possession, use, and purchase of marijuana, similar to the regulation of alcohol in the state constitution.” It passed by a margin of 57.84 percent to 42.16 percent. I-190 sought to legalize “the possession and use of marijuana for adults over the age of 21,” impose “a 20% tax on marijuana sales,” require “the Department of Revenue to develop rules to regulate marijuana businesses,” and allow “for the resentencing or expungement of marijuana-related crimes.” It passed by a margin of 56.9 percent to 43.10 percent.
New Jersey Public Question 1 sought to “legalize the possession and use of marijuana for persons age 21 and older and legalize the cultivation, processing, and sale of retail marijuana.” It would apply the state sales tax to marijuana sales and prohibit additional state sales taxes on it, but allow local governments to tax it an additional 2 percent. Question 1 is the first marijuana legalization measure that a state legislature ever referred to voters. It passed overwhelmingly by a margin of 67.08 percent to 32.92 percent.
South Dakota voters had a chance to decide on both medical and recreational marijuana. Initiated Measure 26 sought to establish “a medical marijuana program in South Dakota for individuals with a debilitating medical condition.” It passed by a margin of 69.92 percent to 30.08 percent. Constitutional Amendment A sought to “legalize the recreational use of marijuana and require the South Dakota State Legislature to pass laws providing for the use of medical marijuana and the sale of hemp by April 1, 2022.” It passed by a margin of 54.18 percent to 45.82 percent.
This means that now there are thirty-five states where the medical use of marijuana is legal and fifteen states where the recreational use of marijuana is legal (both are legal in the District of Columbia). Only fifteen more states to go, mainly in the Deep South, before medical marijuana is legal nationwide. There are already plans under way for 2022 ballot initiatives to legalize the medical use of marijuana in Arkansas, Mississippi, Nebraska, and North Dakota and the recreational use of marijuana in Florida and Oklahoma.
There were also ballot measures in Oregon that related to drugs besides marijuana. Oregon Measure 110, the Drug Decriminalization and Addiction Treatment Initiative, was on the ballot as an initiated state statute. It would decriminalize the noncommercial possession of a controlled substance by reclassifying possession as no more than a Class E violation with a maximum fine of $100 (instead of a Class A misdemeanor punishable by one year in prison and a $6,250 fine) and establish a drug-addiction treatment and recovery program funded in part by the state’s marijuana tax revenue and state prison savings.
The measure, which was approved by a vote of 58.51 percent to 41.49 percent, does not legalize drugs. Police will still be issuing tickets, and the sale or manufacture of drugs will remain felony offenses. Oregon Measure 109, the Psilocybin Mushroom Services Program Initiative, would authorize the Oregon Health Authority (OHA) to create a program to permit licensed service providers to administer psilocybin-producing mushroom and fungi products to persons 21 years old or older even though the federal government classifies psilocybin as a Schedule I controlled substance. It passed by a vote of 55.68 percent to 44.32 percent. A similar measure in California failed to garner enough signatures to be placed on the ballot.
On the federal level, the marijuana issue is a no-brainer. The Constitution nowhere gives the national government the authority to prohibit, restrict, or regulate the buying, selling, growing, or use of marijuana for medical or recreational use. Wrote James Madison in Federalist No. 45, “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.” That is why when the Progressives wanted the national government to ban alcohol, they first had to get the Constitution amended. It is ridiculous that Congress has to pass legislation such as the MORE Act to decriminalize marijuana on the national level. The federal war on marijuana (and every other drug) is actually a war on the Constitution and the American system of government. It should be opposed by Americans of any political party no matter how they feel personally about drug use.
But even if the federal government followed its own Constitution and fired the drug czar, abolished the Drug Enforcement Administration (DEA), tore up its National Drug Control Strategy, and repealed all of its marijuana laws, there would still be state government prohibitions on marijuana use to deal with. Although medical marijuana has been legalized in thirty-five states, there are still thirty-five states where growing, buying, selling, or using marijuana — sometimes even in small amounts — will result in fines and imprisonment. Because marijuana (medical or recreational) is rarely legalized through the legislative process, it is essential that ballot measures continue to be utilized.
Now, we know that no ballot measure to date has instituted marijuana freedom. None of them is perfect, and none of them is based on individual liberty, private property, or the libertarian nonaggression principle. If marijuana were truly legalized, then no adult would have to wait until he is 21 to use it, it would not be limited to just medical use, its medical use would not be limited to just serious or specified medical conditions, no business owner would have to get a license to sell it, no user would have to get an identification card to purchase it, no cultivation or possession limits would be established, and no one would have to get a prescription from a licensed physician in order to purchase it. Even though alcohol is heavily taxed and regulated, at the very least, marijuana should be treated just like alcohol. Then we can work toward real marijuana freedom at the same time we work toward real alcohol freedom. Ballot measures, flawed as they have been in the past, and flawed as they may be in the future, are an important and necessary step in the direction of liberty. It should be remembered that drug freedom will never be obtained without first achieving marijuana freedom. And until that happens, we should remember that some freedom is better than no freedom and more freedom is better than less freedom.
Recent national polls that show that majorities of Democrats, Republicans, and independents support legalizing the medical use of marijuana and decriminalizing the recreational use of marijuana are encouraging. Red-state conservatives are the holdouts, mainly in the Deep South. But the defection of Florida in 2016 and Mississippi in 2020 is a harbinger of what is to come. In South Dakota, the Republican governor, Kristi Noem, appeared in television ads opposing both of her state’s marijuana ballot measures, but to no avail.
Rarely brought up in all of the recent debates in the states over marijuana legalization is the real reason that marijuana should be legal for medical or recreational use. Marijuana use is a personal-freedom, private-property, and individual-responsibility issue. It is none of any government’s business whether anyone decides to grow, buy, sell, or use marijuana on his property or with permission on the property of someone else. It is not the role of government to monitor, regulate, or control what people choose to inhale, inject, or ingest. Will people abuse marijuana if it is legalized? Of course they will. Just as people harm their bodies right now with alcohol, tobacco, and gluttony. But marijuana abuse and addiction should not be a criminal-justice or a public-health issue; it should be an individual health-and-freedom issue. And people should be fully responsible for their actions while under the influence of marijuana.
Government prohibition of marijuana is something that could be ended immediately. It doesn’t need a gradual phase-out over five or ten years or even five or ten days. And not only would ending marijuana prohibition not cost the government one penny, it would actually save money that is currently being wasted by law enforcement on enforcing marijuana laws. According to the most recently available FBI Uniform Crime Report, as reported by The National Organization for the Reform of Marijuana Laws (NORML), “Police made 663,367 arrests for marijuana-related violations in 2018. That total is more than 21 percent higher than the total number of persons arrested for the commission of violent crimes (521,103). Of those arrested for marijuana crimes, some 90 percent (608,776) were arrested for marijuana possession offenses only. Police across America make a marijuana-related arrest every 48 seconds.” The drug war is the main cause of the militarization of the police and the corruption of law enforcement.
State legislatures shouldn’t wait for ballot measures during the next election to legalize marijuana. There is nothing stopping them from ending their state’s war on marijuana during their next legislative sessions.
This article was originally published in the February 2021 edition of Future of Freedom.