The Reason a Record Number of States Can Vote to Legalize Weed This Fall

  • by Keith Stroup, NORML Legal Counsel September 5, 2016

    Legalize MarijuanaThose of us who support the full legalization of marijuana are greatly benefiting from political reforms adopted during what is frequently referred to as the Progressive Era in this country.

    The principal objective of the progressive movement was eliminating corruption in government, and to accomplish that goal, proponents sought ways to take down the powerful and corrupt political bosses and to provide access by ordinary Americans to the political system – a concept called direct democracy, as contrasted to representative democracy.

    It was during this period that the concept of direct primaries to nominate candidates for public office, direct election of U.S. senators, and universal suffrage for women gained traction. And, most important to our work, the procedures known as referendum and initiatives began to be adopted in several states.

    In 1902, Oregon was the first state to adopt the option of initiative and referendum to change public policy, permitting citizens to directly introduce or approve proposed laws or constitutional amendments. This process was called an initiative if the change originated by action of citizens, without the involvement of the legislature, and as a referendum if it originated from the legislature but was referred to the voters to decide.

    By 1920, a total of 22 states had adopted provisions modeled on the Oregon system. Today, a total of 24 states offer a voter initiative. In the rest of the states, the only avenue to change public policy is through the state legislature.

    This brief history of direct democracy is relevant today because it is this access to direct political action by voters that has allowed marijuana legalization to move forward, years earlier than would have been politically possible through the action of state legislatures.

    The four states and the District of Columbia that have approved full legalization for all adults, and the five states that will be voting on full legalization in November, all rely on voter initiatives. These progressive procedures have worked precisely as they were intended back in the Progressive Era: They have allowed citizens to go around the establishment to alter the status quo.

    Voter initiatives are unpopular among most elected officials.

    Altering the status quo has not taken place without some legal kicking and screaming by the elected officials in those states. It comes as no surprise that most elected officials do not appreciate the fact that public policies in their states can, when necessary, be changed without their consent.

    As we approach the end of summer and the coming fall elections, we once again see examples of the extraordinary time and resources many establishment politicians and other anti-marijuana zealots are willing to invest to try to prevent citizens in their states from voting directly on marijuana policy.

    The reason, of course, is obvious. According to recent national polls, a clear majority of the American public (between 55 and 61 percent) supports an end to marijuana prohibition. If given the opportunity to vote on the issue, they will vote to legalize marijuana.

    Elected officials, who otherwise claim to represent the will of the voters in their states, and other self-appointed moral guardians, go to great lengths to try to stop the votes from happening.

    Democracy is something they support so long as the public favors the same policies they favor. When the public gets out ahead of the establishment, democracy be damned; they will use any tools available, including procedural and constitutional challenges, to avoid allowing the voters to decide the issue.

    Full legalization proposals.

    We will have full legalization measures on the ballot in five states this fall: Maine, Massachusetts, Nevada, Arizona, and California. A sixth, Michigan, would have qualified but for last-minute legislation.

    In several of the states with pending initiatives, establishment prohibitionists have gone to court in a desperate effort to get the courts to intervene to keep the measures off the ballot.

    In Maine, Secretary of State Matthew Dunlap attempted to invalidate a significant number of the signatures gathered by the Campaign to Regulate Marijuana Like Alcohol in Maine, arguing that the signature of a single notary did not match the one on file with the state. Fortunately, Superior Court Justice Michaela Murphy overruled Dunlap’s decision. When the signatures were recounted, the measure, Question 1, qualified for the ballot.

    In Massachusetts, once the Secretary of State had qualified the legalization initiative for the ballot, a group of prohibitionists calling themselves the Safe and Healthy Massachusetts Campaign sued to have the measure removed from the ballot, claiming it violated the constitutional limitation prohibiting an initiative from dealing with two unrelated topics. This challenge was subsequently dismissed by the Massachusetts Supreme Judicial Court, and the measure, Question 4, will now appear on the November ballot.

    In Arizona, a group calling itself Arizonans for Responsible Drug Policy — including two prominent country prosecutors and the Arizona Chamber of Commerce — filed suit to try to keep the legalization initiative off the ballot, after it had been qualified by the Secretary of State. The group claimed that the 100-word summary (a limit set by statute) did not accurately reflect everything contained in the 30-page proposal. Maricopa County Superior Court Judge Jo Lynn Gentry rejected the argument and approved the measure, Proposition 205, for the ballot.

    In California — the big enchilada for the 2016 elections and a state in which opponents to an initiative are permitted to include on the ballot their reasons for opposing the proposal — it was the proponents who went to court. The Yes on 64 advocates successfully challenged all six arguments that opponents had wanted to appear on the ballot, and Superior Court Judge Shelleyanne W.L. Chang found all six “false and misleading.” She ordered the opponents to modify their arguments, most of which falsely claimed the initiative would permit pro-marijuana ads to appear on radio and television and would appeal to children.

    And in Michigan, where proponents, MI Legalize, had turned in a sufficient number of signatures (more than 350,000) to qualify a legalization measure for the ballot, the state legislature quickly rammed through a new law in June declaring signatures older than 180 days to be invalid, leaving proponents shy of the required number of signatures. Proponents have filed suit against the state, challenging the new limitations on constitutional grounds, but it appears the appeal will not be decided in time for the initiative to appear on the 2016 ballot, even if the appeal succeeds.

    Of the five full-legalization initiatives that will appear on the ballot this fall, only the Nevada initiative, Question 2, was free from a court challenge. Nevada Secretary of State Ross Miller certified the proposal for the ballot at the end of 2014. While there are certainly organized opponents, none elected to challenge the measure in court.

    Moving forward.

    In the short term, proponents of legalization will continue to focus efforts in the states that offer the option of a voter initiative. So long as our elected officials, and the establishment interests they represent, continue to support the status quo of prohibition, it makes sense strategically to bypass the state legislature where possible.

    But that is a strategy that must eventually evolve, as 26 states simply do not offer that option. For that half of the country, we will have to win the old-fashioned way: By building majority support among state legislators to pass the proposal through the legislature.

    It’s a significant challenge for sure, but as we’ve demonstrated with the drive to legalize medical marijuana, after a few more states have adopted legalization by voter initiative, enacting legalization by statute will become more realistic.

    For those who live in one of the 26 states without an initiative process, we must continue the painfully slow process of convincing individual legislators that prohibition of marijuana is a failed public policy and that full legalization makes sense.

    Many already understand this but continue to fear being labeled “soft on drugs” should they acknowledge the obvious. It is frustrating to have to win over supporters one at a time, but each year it becomes easier as public support for legalization continues to increase, and elected officials ignore the wishes of their constituents at their own peril.


    This column first ran on ATTN:



    44 Responses to “The Reason a Record Number of States Can Vote to Legalize Weed This Fall”

    1. TheOracle says:

      Stuck here in Pennsylvania, I can tell you that the legislature is loathe to follow the lead of the American people on legalizing marijuana, and the politicians, as you mentioned in the article, don’t give a shit about what the polls say the people want unless is aligns with what they politicians want (read that as can use to enrich themselves). Stuck in a state with a legislature dominated by Rs, they subscribe to the Broken Windows Theory of James Q. Wilson & George Kelling (https://en.wikipedia.org/wiki/Broken_windows_theory)rather than the Broken Window Fallacy of Frederic Bastiat (https://en.wikipedia.org/wiki/Parable_of_the_broken_window. With cannabis prohibition, it is clearly the case that the money spent on fixing something that is NOT broken, though perceived so by prohibitionists, is a waste of money, and by not spending it on cannabis prohibition money that can be better spend on something else.

      No biggie, but did you mean “country” or “county” in the part about Arizona: “including two prominent country prosecutors”? (Yes, I want the ? outside the ” because it’s not part of the quote, and I differ with the MLA on ending a sentence with the puncuation inside the “) I’m thinking “county” as it makes more sense. Perhaps a Freudian slip or something, noting that what I post is far less well proofread in my haste and hurry and stream of consciousness.

      • Denny Strausser Jr says:

        I would suggest sending letters to Tom Wolf, urging him to reconsider the Recreational Marijuana bill, which is dead right now, but not forgotten. It still exists, just that it’s kind of dead.

        He can not ignore us forever, as one bill did get passed. Urge him to at least consider decriminalization as it’s a step in the correct direction? Right?

        That’s all I have I guess. 😉

        • TheOracle says:

          Pennsylvania Governor Wolf said on SmartTalk radio that he wants decriminalization in the entire Commonwealth as a first step, and he’ll look at taking it farther after seeing how that goes. It’s up to the legislature as to how far things move along from decriminalization to legalization.

          I wrote Senator Daylin Leach about getting the adult recreational legislation reintroduced, and urged him to find a coutnerpart in the House to do the same. His office is probably going to contact the politicians in the district I live in because I’m not in his. So far Rep. Hickernell (R) and Sen. Aument and all the other Republican politicians in Lancaster County have consistently not supported, not voted for anything pro-cannabis, not even medical marijuana.

          Sen. Folmer used to by like that, giving me canned wishy-washy prohibitionist responses, UNTIL he got cancer, and then it was different: lymphoma. As a surviving cancer survivor, not the same as Mike Folmer’s, I have been writing and on occasion talking to these Lancaster County prohbitionist assholes, and they are all constipated and just don’t give a shit. It doesn’t affect them, their kids, or anyone they truly give a shit about, so they’re not going to vote for it.

          The MMJ law is so restrictive, many patients simply aren’t going to be able to get their medicine, so Pennsylvania might as well legalize adult recreational after Cali and others legalize so that the rest of Pennsylvania’s patients who can benefit from ALL forms of marijuana can get it and can even vape (or smoke) the bud to titrate the effects.

          • Denny Strausser Jr says:

            At least the local government or state should I say are not fully ignoring us. It is about time they at least decriminalize it as a criminal record over pot is dumb.

            Thanks for the reply. 😉 😀

      • Evening Bud says:

        @ The Oracle,

        I was under the impression that it was a typo, that “county” was the word actually meant.

      • tim says:

        I live in a state that has no initiative and referendum and as a result we citizens have little say in the process. This is why PA has a MMJ program set up for millionsires snd no home grows.
        PA constitution needs changed to allow citizens to vote on important matters.

    2. mark amabile says:

      Look I`m here to keep it simple not too complicated, For one we see all of the Medical benefits that it provides to patients and we haven`t seen any deaths. At the the same time the government is still trying to figure out how to regulate it. I honestly think that for every citizen and medical patient they should be allowed to grow up to 8 plants and possess and purchase up to 4 ounces of marijuana every two weeks. Because if the “stores” that sell the marijuana ever run out the citizens them selves can help provide the “stores” if needed and be compensated a little bit for growing so this way we dont have to have big plantations. In addition I also think we should not charge based on the level of THC because of medical benefits that it can provide patients , I mean what would you say If you knew someone very close to you suffering from cancer and this was the only way to help but they couldn`t AFFORD it I mean that is ridiculous its like were playing GOD because we want extra cash in our pockets. Lastly I say to those people who still dont think marijuana should be legalized , look at all of the research that people have done and look at all of the patients that this PLANT has helped reduce CANCER, SEIZURES & much more , is it really such a bad thing because you promote it with racism and violence I say I dont think that the PLANT told them how to act It was the ignorance of the people and of the time that made them act the way they did so that`s why I support the legalization of marijuana.

    3. Mark Mitcham says:

      I think it might have been Rep. Barney Frank who once said, “I’d rather be soft on drugs than soft in the head.”

      Too bad more politicians don’t display such common sense. We’ll just have to teach the rest of them a little lesson on Respecting One’s Constituents!

    4. Colin says:

      It makes me absolutely sick that this won’t be on the ballot for Michigan this year. It seemed to be going so well, and considering the Michigan voters approved medical use by 63 percent all the way back in 2008, I think this had a very great chance of passing. It disgusts me that we’ll probably have to wait another 4 years, at least.

      At any rate, excellent article, Keith.

      • mexweed says:

        “Don’t wait– stay busy”–

        1. Agitate for nonenforcement of any “possession” laws provided user has no more than a gram (40 single vapetokes, what’s to complain)

        2. Demand nonenforcement of any “paraphernalia laws” provided utensil is $$$ vape-only, or if oneheater, has 25-mg-single-toke capacity (crater diameter 6 mm, screen depth 5 mm)

        3. Carry only a gram or less and obvious microdosage equipment– and be willing to testify publicly on this responsible use point if arrested anyway

        4. Draw pictures of Anne Frank and Bob Marley dwbbletoking a 25-mg vapeload (2 flexdrawtubes on device) and post little stickers thereof near busstops especially in Deepthroit

      • Julian says:

        Michigan Senate suddenly legalized medical marijuana dispensaries;
        They emphasized “seed to sale” tracking. Now that Microsoft is investing in “seed to sale” software, I wonder if Bill Gates had anything to do with this?

    5. Julian says:

      Keith, your analysis is impeccable. Allow me to elaborate, (as much as the characters in a single post allow). :-)

      Nevada: The only state that saw no judicial litigation to stop a legal marijuana initiative… Can someone say Sheldon Adleson? The same Sheldon that looked at this orange idiot named Trump and found no business plan, no outreach program, and said fu€k this, I’m investing in the lower ballot… And apparently Sheldon is investing in the state Supreme Court battles as well? Poor Sheldon… But hey! 1 out of 4 aint bad! You got Michigan! It’s like dove hunting! (Loser).

      As for us non-voter initiative states living in the annals of Democracy, rest assured if you pick a target; whether its medicinal marijuana, industrial hemp, decriminalization or anything better than full prohibition, you’ll get some dove, cream cheese and jalapeños wrapped in bacon before you know it. Just find out where your state representative’s offices are and bring some with you; You’ll be surprised what progressive progress can be conducted even with the most conservative among us!

      (Hint, hint; marijuana and hemp conserves more water than corn or cotton for twice the fiber of cotton or twice the protein of corn… To help us survive the next drought… And decriminalization creates a much needed labor market for small business… Also, increased THC in states with CBD only laws can stop seizures and a variety of other ailments and still “not get you high” or “create street value” so long as there is more CBD”… You might want to say that to your state representative if you love weed and live in a non voter initiative state… Luck is a matter of preparation meeting opportunity…)

      • Julian says:

        Just in case it was inferred by anyone that I meant weed when I said “bring some with you,” I was talking about jalapeño poppers, not weed. Sorry, not there yet. Maybe one day if we keep citizen lobbying. As much as we look fondly forward to consuming marijuana with our representatives either on their office balcony or on a rooftop bar or even with our off-duty local law enforcement for that matter, getting busted at the security gate of your state capitol miiiight be counterproductive. Don’t be like my little brother when I dragged him in to citizen lobby day and had to remind him before we started walking to leave his joint in the car… (Really brother? Jeez, like we weren’t already stoned enough… Thank God for security because it gives time to recover from the good $#!+ they smoke in Austin… Thank you Colorado!)

      • Julian says:


        Michigan Senate all the sudden pulls marijuana legalization out of committee emphasizing “seed to sale” regulations. Microsoft?

    6. Don M says:

      For many years I have been very bothered by the fact that our so-called representatives don’t actually represent us. They represent their own values which are often far different than that of their constituents.

      I believe that laws that affect all of the people in our country should be voted on by the people themselves and not just the people that supposedly represent them. In fact, I believe that we should have a say in the punishment for real crimes; like rape, robbery, and murder.

      There is just no way that a rich white kid should serve only 3 months in jail for rape when a poor Native American is sentenced to 10 years in prison for selling $30 worth of cannabis. Knowing these kinds of things happen in our country makes me regret ever having served it as a marine! When I joined the marines as a young high school graduate, I had no idea just how corrupt and backwards our government can be.

    7. Evening Bud says:

      Thank you Oregon for your insightful move.

      After this election, my Reps and Senators here in NM are gonna get a few more calls from me. I will concentrate on the Dems, won’t waste my time with the prehistoric GOPers here. (They usually give attitude when I call about MJ legalization anyway.)

      Realistically, we won’t be able to seriously consider recreational legalization until our GOP governor, Susanna Martinez, is out of office, which she’ll be in two years.

    8. Matthew says:

      This is the most apalling thing I’ve ever read from Mr Stroup in my life: direct democracy is the most dangerous threat that the US Constitution protects us from. It’s akin to comparing Thomas Jefferson to Hitler.

      Instead, the Constitution is what needs to be enforced – listen to Paul, Keith: the Tenth Amendment is a good starting point, and what the Founders anxiously anticipated is the overdue enactment of criminal statutes for violating the Constitution.

      I’m sorry, Keith Stroup, but you are just flat out un-American and your terrible misguidedness about direct democracy is the worst threat to Liberty that may be found to be espoused in our overarching cause of legal reform. You’re as backasswards as a sheep voting on a dinner menu with two wolves.

      • Miles says:

        I think that Mr. Stroup is more of an American than 98% of our congressmen and senators. From what I can tell, he believes Americans should make laws; not just a few elected officials that don’t necessarily represent the will of the people. That is what I think too!

        I don’t understand your comment. Can you explain yourself better?

        I am sick and disgusted with a small handful of rich and powerful crybabies telling the rest of us how we must live; or else they would have us locked up. That is what I believe is Un-American!

        • Matthew says:

          Elected Officials should not be able to make laws that violate the US Constitution; this would have precluded the whole mess in the first place, and what Mr Stroup espouses is to take us completely in the wrong direction – a fanatical extrapolation beyond the what is the irony of our having to resort to initiatives to restore liberty to use cannabis.

          In practice, now – we are certainly all on the same page, in full support of the passage of each reform initiative that further legalizes it.

          But, this smarmy hogwash:

          “The principal objective of the progressive movement was eliminating corruption in government, and to accomplish that goal, proponents sought ways to take down the powerful and corrupt political bosses and to provide access by ordinary Americans to the political system – a concept called direct democracy, as contrasted to representative democracy…”

          “It was during this period that… universal suffrage for women gained traction…”

          These are grossly misleading statements, which obfuscate onerous problems such as the origins of Alcohol Prohibition to every single boondoggle and porkbarrel debt that we’ve been racked up and handed out, worldwide.

          Absolutely, we must use the initiative process – but this is a very tragic irony that must be considered always as a second resort to the overdue ideal of getting Constitutional Law to preclude or nullify prohibition.

          Do not take society any farther from Constitutional Law than prohibition has done to begin with!

      • Julian says:

        Mathew, how does “criminally enforcing the Constitution,” …”enforcement” from an executive branch already corrupted by the CSAct… do anything but hurt our cause when our judicial system says “Congress doesn’t have to be right,” (Mueller), and our Congress both state and federal, refuses to regulate marijuana without voter initiatives?

        You do realize that without:
        A): voter initiatives
        B): A President who refused to take Colorado and Washington to court, and
        C): state revenue from fairly taxed and regulated marijuana

        …we wouldn’t BE where we are right now with legalization?

        Just another “perfect” Constitutional ideology getting in the way of the good…

        • Matthew says:

          Because if politicians went to jail for locking us up, then it wouldn’t happen any more: that’s how. This is precisely what the Founders’ answer to federal cannabis prohibition always would have been, to begin with. A little testing of the tensile strength of hemp rope would be part of their correction, also, indeed – legislatively mandated, of course.

          • Julian says:

            “If Congress went to jail,” sweet Jesus man, whose living in a perfect fantasy of enforcement? Our Congressional oversight can’t even jail the CIA from hacking Senate databases and you think were ready to “jail” Congress? How bout we start the disinfection by stop jailing people in general for a health crisis and educate Congress?
            Congress can only be expelled or censured, a practice in need of refinement, which requires voter participation, and probably will only happen through voter initiative.
            The real problem for marijuana legalization and direct Democracy is we allow Congress to switch hats with powerful lobbies that work against us and the Bill of Rights, such as Big Agribusiness (Mosantos, Koch Industries), Big Pharma (Pfizer, to biopharmaceuticals), and as a result, our law enforcement and DOJ who is in charge of investigating corruption becomes nothing more than a bureaucratic weapon for private industry.


            Now tell me, Matthew, until we fix this unchecked unbalanced corruption between our legislative and executive branches by citizen lobbying our Representatives and amending bad laws like the CSAct how can we even propose to censure… much less arrest… our corrupt Congressman?

            • Mark Mitcham says:

              Julian, if you read it carefully (“tensile strength of hemp rope”), he’s actually calling for hanging them.

              Please, Matthew, spare us from your hemp-friendly version of Trump’s “second-amendment solution.” That shit goes back up your ass.

      • Matthew says:

        The handouts that we give to foreign entities and strangers are only physically possible by the shell game of elastic money;

        Nothing else has ever ‘created’ more intrinsic corruption on a global scale in history, yet, Mr Stroup also urges you to ‘green light’ innumerable other vagaries than these under the impossibly morphable term, “progressive.”

        Upending the US Constitution for direct democracy could foster any consequences imaginable: deatg camps for balding women (“hey, it passed with 51% nationwide”) ~ I mean, you cannot even think up any limits of ridiculousness that would usurp the US Constitution under Mr Stroup’s subversive green light. Can we even fit the notion into a ballpark, of what ‘he’ might mean by the term, “progressive”?

        It’s clear where you get this stuff from, but where the hell does Mr Stroup get these ideas from? I’m not going to admonish, for diluting our reform work focus, with such unfathomably expandable vagaries; I don’t want people turning around and espousing direct democracy over the last vestiges of Constitutional Law that we retain…!

        • Julian says:

          Im sure, Mathew, that direct democracy will at least be more transparent than the indirect kickbacks and bribes of our current Plutocracy;


          But thanks to real investigative reporting based on peer-reviewed science like Leafly above and our faithful NORML founder Keith Stroup and deputy director Paul Armentano have been reporting for many, many moons now we’re finally achieving another reason why even States like Arizona are seeing full marijuana legalization on the ballot, despite a horrific half-a-million dollar attempt to stop the initiative by Insys, the maker of fentanyl, the synthetic opiate drug that is 50 times more powerful than heroin. Marijuana, which kills no one, is increasing in popularity to manage chronic pain, mainly because marijuana doesn’t turn you into a predatory zombie before giving you a massive heart attack in an elevator. (You told us the you’d “never let this elevator let us down” Prince! Fu€k you Insys!! Fu€k you!!) ((That was from “Let’s Go Crazy” for those of you who didn’t catch the reference… sigh…))

          With direct democracy through voter initiative there is enough transparency to more quickly respond to toxic legislation and create new voter initiatives to amend ones that have been twisted and corrupted, such as putting public education back in the revenue stream of the Arizona initiative. (Can someone link that Arizona judge that removed public education from the initiative to campaign donations from Insys and get him removed from the bench? Please!! You will be a marijuana hero celebrated in song and lore!)

        • Julian says:

          I concede that you are not against using voter initiative, but your attack on Progressive direct democracy simply because of a purist ideology that the Constitution should supercede Congress with priority in some perfect-is-enemy-of-the-good strategy is simply counterproductive to our movement and for Democracy. Congress, governors all the way to school boards needs to be sanctioned or expelled more frequently through direct Democracy and voter initiative. Then if they broke the law they go to jail with peer reviewed evidence.

          Point is, Mathew, your “delegated” Democracy turns into a campaign washing machine with little to no accountability, until by the time the public is aware of the poison amendments in the beurocratic soap, if you will, the racket has spread its chemical infection into every facet of government, (and body part), whether local or federal. So don’t preach to us about the “morphable” madness of Progressive direct democracy. At least not until you’ve cleaned out the filth in your indirect alternative Plutocracy.

          “foolish pharisee; clean the inside of the cup and the outside will also be clean.”

          (And balding women? Really? That’s all you got?)

    9. Matt says:

      After Issue 3, I largely left Ohio, desperately hoping Michigan, where I now reside, would succeed. It has not, and now, it will take years without assistance to reach the ballot again. I am done. Just done.

      • mexweed says:

        I would think your strategy from here on could combine two thrusts: (1) keep educating and urging polling which may show increased majorities to legalize, (2) demand police enforcement recognize this and reduce arrests even a year or two before legalese statutes are in place.

      • Mark Mitcham says:

        Don’t despair. We’re winning. I’ve been waiting decades for legalization, now it’s happening. You gotta look at the big picture. This has been going on so long, even the death throes of prohibition will take a little while. Hang on, it’s getting better!

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