Why Voting For Cannabis Doesn't Always Equal Cannabis Legislation?

By Greg Huffaker III, Director Of Client Services With Canna Advisors

People vote for cannabis legalization. State after state, millions of voting Americans check yes on cannabis. Most of these voters understandably assume that’s the end of the story, and their government officials then go out and create a cannabis program. Those millions would be surprised to learn this is not the case all too often.

In recent weeks we have seen Mississippi’s Supreme Court strike down their voter-approved cannabis program, as well as Florida’s Supreme Court, upholds a legislatively created divergence from that voter-approved program. These maneuvers are a continuance of a pattern of elected and appointed government officials fighting cannabis after the voters have approved it, often influenced by vocal cannabis opponents.

Though cannabis is by no means the only issue where government action does not match the polled desires of the population (e.g., gun control, minimum wage), the important difference in cannabis is that the votes were cast, the will of the voters clear, yet resistance persists, and across all three branches of state governments.

How it Should Work

When a state legalizes cannabis (medical or adult-use), it can do so via either the legislature passing a bill that the governor then signs or by putting a question on the ballot for voters to decide. That question on the ballot can be put there by collecting a qualifying number of signatures of state residents, as Mississippi did, or from the state legislature putting the question to the voters, as New Jersey did. Voters usually are making a change to the state constitution when they are voting on a ballot question.

After a voter-approved constitutional amendment passes, the legislature should then pass enabling legislation, directing a state agency to write regulations that follow the constitutional amendment and enabling legislation. Those regulations, written in an agency under the governor, should then be used to administer the program. People will then sue, bringing the courts into the mix. Sometimes these suits are brought by opponents, as in Mississippi, and sometimes they are brought by proponents, as in Florida.

The involvement of all three branches gives a variety of opportunities for program interference to occur. Back in 2018, an Ohio court struck down a license preference for racial minorities, and as mentioned, other state courts weigh in as well. In Montana and Florida, both the state courts and their legislatures have attacked legalizing cannabis at different points. Governors in South Dakota and Florida have also taken anti-cannabis actions after their voters approved.

Overturning the 74% Vote in Mississippi

Mississippi’s well-meaning amendment imposed only the state’s sales tax on cannabis sales. Looking to other states that generate more income through special taxes and fees, the Mississippi government seemed to yearn for the missing cash. Using what may well be impeachable reasoning, the state’s highest court struck down the voter-approved constitutional amendment, so that the legislature can create their own program, which will generate more revenue.

No Straight Path in the Great Plains

Montana voters first legalized a medical program in 2004, which the legislature and courts then obliterated through a 2011 law, which the state supreme court upheld in 2016. Later that same year, Montant re-voted a medical program in, then in 2020 voted in an adult-use program, which their legislature then diluted down this year.

South Dakota’s Governor Noem is a vanguard in ignoring the votes of her people. Being the first state to pass medical and adult-use cannabis simultaneously, Noem had the opportunity to streamline the two programs. Instead, she is fighting adult use and their legislature is propping up the medical program, creating waste now and likely duplicity/contradiction later.

Florida’s Uniquely Broken Process

After 71% of Floridians voted for a medical program, the Governor set up the program to fail through appointing regulators who did so little that the legislature had to freeze their salaries in an attempt to get them to respond to the legislature’s requests for information.

Years of various lawsuits have mired the Florida program. The most recent was from the state Supreme Court. The Court upheld a law passed by the legislature that made a significant change to what the voters approved. That law only allows for a single license that does all business functions, called required vertical licensing. Vertical licensing differs from horizontal licensing, where someone can just operate one business type, like a cultivation or a dispensary. Though the constitutional amendment used the article “or” in the definition of what activities a business could engage in, the law passed by the legislature only had a single license type, which could do every phase of business, effectively turning that “or” into an “and.”

Support and State Revenue Swell, Yet Obstruction Persists

Through the years, watching cannabis resistance has been fascinating, though often depressing. It is difficult to find issues in the US that have such high agreement as cannabis—91% in one recent survey—and moreover increase state revenue simultaneously.

The cannabis opponents that remain generally make two main arguments: 1) We NEED more research into its dangers (somehow over 29,000 peer-reviewed studies, the vast majority of them searching for negative effects and finding few, is not enough for them; yet, all sunscreen use is based on one randomized study) and 2) but think of the children (as if children are not able to currently obtain cannabis). Yet, at every level of the government, cannabis resistance lacking a defensible basis beats out the voted will of the people.

What does not reach those officials making these decisions is what the people have already figured out: that the best way to protect children while learning more about the possible benefits of cannabis is to legalize. Drug dealers do not check IDs, dispensaries do. Cannabis users report that they use it to help sleep and with anxiety, yet prohibition blocks studies to isolate the underlying reasons for these benefits.

Sadly, this is an example—not an outlier—of this phenomenon of our governments going far askew of the polled desires of Americans. As mentioned, gun control and raising the minimum wage are another two topics where what Americans want has minimal effect on how government actors operate. The difference in cannabis? The people already voted for it. Then, government officials—who ostensibly represent those people—eroded or entirely eliminated the right to cannabis.

About The Author: Greg Huffaker III is an expert in navigating the complex cannabis regulations and emerging state programs across the country. From his early industry work of maintaining a comprehensive database of ever-changing cannabis laws, his J.D. from Cardozo School of Law, and being a Colorado-licensed attorney, Greg brings a keen sense and deep knowledge of the legislation that impacts clients at every phase of business. Greg maintains an active membership to the National Cannabis Bar Association which provides excellent, ethical, and advanced legal assistance to the growing cannabis industry. He is also a member of the NCIA’s State Regulations Committee that works to establish best practices for states and municipalities on developing sound regulatory procedures for industry-specific statewide regulations. Greg’s perspective is rounded out with his bachelor’s degrees in History and Art from Hamilton College and his time spent as a self-proclaimed ski bum.