Cannabis on the Ballot, November 4: Florida, Nebraska, the Dakotas

Election Day is next Monday, November 4. I have plenty of thoughts! Today I’ll stay in my lane, though, and focus on the cannabis state ballot measures.

The voting states this time around include Florida, Nebraska, North Dakota and South Dakota. I’m aware of one other jurisdiction is doing work around the edges– namely, Oregon’s Measure 119 on unionization for certain types of cannabis licensees (more on that one here). But today we will focus on the four “new regime” measures.

With cannabis polling so favorably nationwide, you may be wondering why only four states are voting to change the plant’s legal status. I explained in a 2021 post:

Something important to understand about cannabis legalization is that only 21 states allow citizen-approved ballot initiatives. The manner in which Colorado, Washington, Oregon, California, etc., first legalized cannabis for medical or adult use simply isn’t available in a majority of states.

See: Cannabis Ballot Measures are a Sucker’s Game: Notes from South Dakota, Mississippi, Nebraska and Florida (“Sucker’s Game”).

Because most states that can legalize cannabis via direct voter action have already done so, we are left with a few “try, try again” jurisdictions. To wit, Florida, Nebraska and the Dakotas have all had one or more bites at the apple, and each is back for more.

Florida

In late September, my colleague Fred Rocafort gave a nice summary of this one. See Florida Cannabis Legalization Vote Q&A. Fred explained:

Florida is set to vote this coming Election Day on the Marijuana Legalization Initiative, also known as Amendment 3. Voters in the Sunshine State will have the chance to amend Article X, Section 29 of the Florida Constitution to allow the possession, purchase, and use of marijuana products and marijuana accessories. The proposed initiative would also allow Medical Marijuana Treatment Centers and other state licensed entities, to acquire, cultivate, process, manufacture, sell, and distribute marijuana products and accessories.

For the initiative to pass, a supermajority of 60% must vote in favor, and the vote is expected to be tight.

The 60% number is an awfully high bar, and Amendment 3 polling should make proponents nervous. A CBS News/YouGov survey in May found that 56% of likely voters would vote “yes” on Amendment 3; 30% would vote “no”; and 14% remained undecided. An August poll by Florida Atlantic University also came in with a 56% “yes” rate. Again, 60% is the number we need to see here.

Florida advocates have struggled in recent times with ballot measures. In Sucker’s Game I noted:

Earlier this year, the Florida Supreme Court ruled that an adult use marijuana initiative was “misleading” after the sponsors had expended tremendous time and resources gathering 556,000 signatures. A few months later, the court ruled against the activists’ second attempt, again calling the ballot title “misleading” and conclusively barring it from statewide ballot consideration. Brutal.

I’m not aware of any litigation on Amendment 3— at least not yet. Let’s hope Florida opens up its limited medical market and we finally see what a clear majority of Floridians want in the Sunshine State.

Nebraska

Cornhuskers have two cannabis ballot measure to decide upon: Initiative Measure 437 and Initiative Measure 438. These new laws would: a) strip out penalties for qualified patients in possession of five ounces or less of medical marijuana, and b) create a Nebraska Medical Cannabis Commission to regulate and license the supply chain.

Will Nebraska’s Measures pass? It seems likely, with polling at nearly 60% in favor (only 50% is needed here). Unfortunately, the ballot measures are currently being challenged on “process” type grounds. As explained by the Nebraska Examiner:

[Secretary of State John] Evnen and John Kuehn, a former lawmaker and former State Board of Health member, are challenging tens of thousands of signatures on each petition in Lancaster County District Court. Evnen is alleging fraud and malfeasance on nearly 50,000 signatures for each petition, while Kuehn is challenging at least 17,000 signatures that he says were incorrectly validated.

The ballot sponsors last week alleged unethical conduct in the Attorney General’s Office as part of ongoing investigations involving their petitions. Lancaster County District Judge Susan Strong ruled Friday there were no ethical violations, including contacting prospective witnesses and their attorneys.

Sounds like a mess. Even worse, we may not have clarity on the outcome of this litigation until after Election Day. Trial begins today, October 29, in fact.

If the will of Nebraskans on cannabis is vitiated again, it will be especially sad because that has happened once already. In Sucker’s Game, I explained:

In December of 2020, the Nebraska Supreme Court ruled that the Nebraska Secretary of State had wrongly allowed a medical marijuana initiative to qualify for the ballot. This ruling came one day before the legal deadline to certify the measure for the general ballot, and after 180,000 signatures had been gathered. In an exceedingly technical opinion, the court found that that a provision allowing for both the use and production of medical marijuana products in Nebraska were two different subjects. The result here would be funny if it weren’t true.

North Dakota

In North Dakota, voters will be asked for a third time about legalizing marijuana for recreational use. Measure 5 would make it legal for adults ages 21 and older to produce, process, sell, and use cannabis.

Measure 5 would appoint a state body to regulate cannabis-related businesses in North Dakota. Up to seven cannabis manufacturing facilities and eighteen dispensaries could be licensed.
The measure sets a maximum amount of cannabis products an adult age 21 and older could purchase in a single transaction, and would allow adults age 21 and older to grow up to three cannabis plants on their private property.
Cannabis consumers would not be able to use or consume cannabis products in a public place, on the grounds of a cannabis business, or in a motor vehicle, and they would be prohibited from driving under the influence of cannabis (which I’m sure they already are).

Similar measures in 2018 and 2022 failed, but this one is polling pretty well. According to the North Dakota Monitor, 45% of those surveyed favor legalization; 40% opposed; and 15% remain undecided. Here again, we need 50% or better. As a proud Fargo South High School alumnus, I hope we get there.

South Dakota

Like North Dakota, South Dakota legalized medical marijuana use a while back, but otherwise has struggled mightily with cannabis voter measures. This year, petitioners are on attempt number three to sanction adult use, via Initiated Measure 29. As to the first couple of failed attempts, in Sucker’s Game I wrote:

Last week [in 2021], the Supreme Court of South Dakota overturned a voter-approved, constitutional amendment to legalize adult use cannabis statewide. Governor Kristi Noem instigated the anti-democratic fight on social welfare grounds, although the court made its ruling on technical grounds, finding that Amendment A violated a “single-issue” initiative subject requirement. If that’s true, you’d have to wonder why Noem et al. waited until after the election results to challenge the structure of the initiative. You might also wonder how Amendment A found itself onto the ballot in the first place. Presumably, the Secretary of State had approved this submission.

This is the second time in 2021 that a state supreme court has struck down a voter-approved initiative to legalize cannabis use . . . . These outcomes are discouraging but not surprising: the South Dakota judge who first ruled against local voters was a very recent Noem appointee[.]

After that fiasco, local voters rejected a different ballot measure, Initiated Measure 27. This year, South Dakotans will be asked to consider Initiated Measure 29, which is identical to 27. It would:

Allow South Dakotans 21 years of age or older to possess up to two ounces of marijuana, along with six plants (12 per household), as well as 16 grams per person for concentrates and extracts.
Do other minor things, none of which is create an oversight authority, stores, or a cannabis licensing program.

According to the Argus Leader, this one is not polling well, with 44% approving; 51.4% opposing; and 4.6% undecided. But, you know what they say: polls are not voters. Fingers crossed that this limited measure makes it through, and sticks, and South Dakota finally gets a win.

________________

We plan to announce a post-election Q&A webinar on Thursday, November 7, at 12pm PST. Stay tuned for a formal announcement with registration links, tomorrow.

The post Cannabis on the Ballot, November 4: Florida, Nebraska, the Dakotas appeared first on Harris Sliwoski LLP.