Four legalization lessons from the 2022 election

We got used to winning all the time. But 2022 has shown us that legalization is not inevitable and nationwide measures can lose out.

The Haymaker is Leafly Senior Editor Bruce Barcott’s opinion column on cannabis politics and culture.

Elections humble us all. Sooner or later the incumbent is fired, the pollster is wrong, the powerful tumbles.

The cannabis legalization movement emerged from Tuesday’s election with two significant victories. Maryland and Missouri will become America’s 20th and 21st rule of law states.

At the same time, this feels like a humbling choice. Just three weeks ago, I was confidently predicting a five-for-five sweep for legalization on November 8th. After all, voters had approved all nine legalization measures in 2020, went three-for-four in 2018 and four-for-five in 2016. We’ve gotten used to winning. “At this point, you’d have to write a disgustingly bad legalization measure for it to fail at the ballot box,” I told the host of a national NPR show last month.

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And yesterday I humbly picked up a knife and fork to eat crow. Two states passed legalization measures, but voters in three other states — Arkansas, North Dakota, and South Dakota — rejected them with a resounding “no.”

At one point Tuesday night, it looked like legalization would go one-for-five, with Maryland the lone winner in weed. Fortunately, voters in St. Louis and Kansas City turned out in large numbers to push Missouri’s Amendment 3 over the top during the nightly ballot count.

What happened? Many factors played a role, but here are four key lessons I took away from Tuesday’s election.

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1. Strong opposition can defeat a popular issue

Most successful nationwide legalization campaigns in past election cycles have met little to no organized opposition. Relatively small groups like SAM (Smart Approaches to Marijuana) have attempted to stem the tide, usually without success. The big political players could not bother to devote their time, energy or money to legalization campaigns. They had bigger fish to fry.

But when big money and big statesmen come together, they can bring down a popular legalization move. We saw it in Arizona in 2016, when monies from billionaire Sheldon Adelson, fentanyl maker Insys, and discount tire chain reinforced the voices of local prohibitionists like Gov. Doug Ducey and Yavapai County Attorney Sheila Polk. Result: The measure failed, 51% of the voters rejected motion 205.

Something similar happened in Arkansas this year. A hugely popular Republican nominee for governor, Sarah Huckabee Sanders, beat her Democratic opponent, Chris Jones, 65% to 35%. Sanders has spoken out strongly against the state’s Issue 4 legalization measure, as has a who’s who of Arkansas political power: Senator Tom Cotton, retired Gov. Asa Hutchinson, Rep. John Boozman, and former Gov. Mike Huckabee. The Arkansas Family Council, a politically powerful conservative group, launched a well-funded and well-executed opposition campaign.

Jerry Cox, founder of the Arkansas Family Council, told the Southwest Times Record how he reversed legalization.

“Beating Issue 4 was really a team effort,” said Cox. “We could not have defeated Issue 4 without the broad, bipartisan coalition against it.”

Cox put together an incredibly deep bank. At Sarah Huckabee Sanders’ victory party last night, he rattled off a list of twenty major Arkansas political figures and organizations.

Something similar happened in North Dakota. Previous ND legalization campaigns have attracted little attention and little resistance. Medical legalization was passed there in 2016. Proponents tried to pass a kind of crazy legalization measure for adult use in 2018, but it failed. This year, Action 2 offered a very safe and sensible legalization initiative. But it met stiff opposition from the state’s powerful oil and gas industry, which feared its labor pool could shrink due to failed drug tests. (To that I say stop testing for cannabis or pay higher wages. Better yet, do both.) Result: Action 2 failed as 55% of voters oppose legalization.

2. Voters don’t like bad legalization policies

Do you remember my NPR quote? I wasn’t entirely wrong. Two of the three measures that failed last night contained glaring flaws that undermined their chances at the ballot box.

They weren’t the worst we’ve seen — that crown rests on Ohio’s infamous Issue 3, 2015’s “Buddie” campaign — but no one hailed them as the next gold standard.

Issue 4 was written in Arkansas and funded largely by the state’s existing medical marijuana industry. And they wrote a law that would be a sweet deal for themselves and few others.

In South Dakota, Proposed Measure 27 would have legalized adult possession of cannabis but made no provision for regulated sales. There’s good reason for that — the state Supreme Court overturned a voter-approved 2020 legalization measure on the grounds that the 2020 law was amended to address two separate issues (legalizing ownership and regulating sales). What you can’t do in South Dakota. So the supporters of Measure 27 said, okay, we’ll write a law that just legalizes it. Not allowing shops.

Fuck that, said voters in South Dakota. To that I say … fair enough.

My critics may point out that Missouri’s legalization action shared some of the same flaws as Arkansas’ and a similar homicidal legalization-pro-legalization-versus-legalization dynamic. You’re right. This isn’t science. It’s politics, and politics is messy.

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3. Legalization is up to the governors

Because legalization remains a state-to-state matter, the individual who directs a state’s political machine wields a great deal of power. The national media’s obsessive focus on Congress and the President makes it easy to forget that governors matter, too.

In Arkansas, a popular former governor (Mike Huckabee), a popular current governor (Asa Hutchinson), and a hugely popular governor-elect (Sarah Huckabee Sanders) have been vocal in opposing legalization efforts.

In South Dakota, Gov. Kristi Noem has made her ability to thwart legalization one of her political superpowers. She sunk the approved measure for 2020 and dismissed the 2022 effort.

A few years ago in Maine and New Jersey we saw how powerful Prohibition governors (Paul LePage and Chris Christie respectively) can go slow and undermine both adult use and medical legalization if they make it a priority.

The first adult-use legalization laws were passed in Washington and Colorado in large part due to the shrewd leadership of then-governors Jay Inslee and John Hickenlooper, who mildly opposed legalization but agreed to carry out the will of voters.

In the two newest constitutional states, Maryland is fortunate to have elected Wes Moore, a pro-legalization advocate with an A-rated voting record as counted by NORML. Missouri Governor Mike Parson is a C-rated leader, but that’s pretty good for a Republican from a Midwestern state. Parson has maintained a more neutral stance on legalization, which bodes well for the state’s upcoming rollout.

4. Sometimes voters need time to think things over

Florida failed medical marijuana legalization in 2014 and then passed in 2016. Arizona failed recreational legalization in 2016 and then passed in 2020.

Sometimes voters need more than a bite of the apple.

People need time to open up to the subject of legalization. This is wisdom first imparted to me by Mason Tvert, the political strategist who was a major force in legalizing Colorado. “We put legalization on the ballot at every opportunity,” Tvert told me years ago. Proponents ran it on city ballots, they ran it statewide, they ran it statewide. You have lost many times. “But losing yourself was okay,” Tvert said, “because it gave us a chance to bring the issue up in front of people and got them thinking about it.”

Colorado advocates knew their cause was righteous, just, and reasonable. The more voters were forced to think about it, the more converts legalization won. It just took time.

So hang in there, Arkansas. Come back in two or four years, North Dakota and South Dakota. It will happen.