Why Marijuana Crashed and Burned in Ohio

Ohio

Issue 3 is dead. Election officials called it early Tuesday night, declaring that ResponsibleOhio’s Marijuana Legalization Initiative had failed to garner the majority support necessary to become law. It appears to have failed by a margin of nearly two to one despite the fact that predictions were close.

Is this a one off, or is the tide turning against legalization? Let the postmortem begin.

 

Cause of Death

There appear to have been multiple causes. It was an off-year election; advocacy support was tepid; the ballot may have been confusing. Perhaps the leap into full adult use without a medical-only phase was too much to accomplish. But the most telling indicator may be that Issue 2, the anti-monopoly amendment, appears to have passed.

Even those generally in favor of legalization appear to have had no appetite for a constitutional amendment that would have awarded exclusive licenses to ResponsibleOhio’s investors.

 

Lower Turnout

Most eyes are on 2016, and 2015 seemed a strange year to bring a big progressive issue to the ballot. There were a lot of down ticket races on local Ohio ballots, including school board contests and city council and mayoral  races in Columbus and Toledo. The voters who turned out may not have cared much about marijuana. They were the diehards who vote in local elections.

A convergent theory is that younger voters, who might be more likely to vote for legalization, stayed home. Not every fan of Bernie Sanders buys the notion that older voters are more conservative on the issue of marijuana. Nonetheless voter turnout was not what it would likely have been in a presidential year.

 

Advocacy Groups Gagged

For legalization stalwarts, the contest had all the charm of a food fight. Many were disturbed at the provisions of Issue 3 that awarded growers licenses exclusively to investors who were able to come up with a $2 million contribution to ResponsibleOhio.  The Drug Policy Alliance and the Marijuana Policy Project abstained from endorsing the measure, while NORML offered a qualified endorsement. Other legalization regulars, such as the Ohio Green Party and the Libertarian Party of Ohio actively campaigned against Issue 3.

The usual opponents suffered no similar ambivalence, and the list was long.

 

Confusing Ballot

ResponsibleOhio mounted a campaign to educate votes that legalization required two votes: a “No” on Issue 2 and a “Yes” on Issue 3. Those could be complicated instructions and many complained that they found their choices confusing.

The ballot language for Issue 3 had, itself, been the subject of litigation before the Ohio Supreme Court when ResponsibleOhio successfully claimed that the references to “recreational” use and “monopoly” were prejudicial.

 

Why Ohio?

Although 53 percent of Ohioans favored legalizing possession of “a small amount of marijuana for personal use” and 90 percent supported legalizing marijuana for medical use, Ohio had not been high on anyone’s list of states likely to legalize in the near future. In its study of the ballot initiative, New Frontier Financials noted the difficulty of moving directly into a full adult use market without an intervening medical marijuana step, posited lower revenues than forecasted by ResponsibleOhio and predicted a slim win, at best.

 

Constitutional Monopoly

The answer to the question, “Why Ohio,” may actually lie in the mechanism through which ResponsibleOhio sought to reward donors with licenses. Ohio has a history with investor-sponsored initiatives to amend the state constitution. In 2009, it was casino gambling. The promised jobs and revenues have not materialized, constitutional amendments are difficult to undo and Ohioans may be suffering the pangs of buyer’s regret.

For many though, the rejection of Issue 3 may simply have been a visceral reaction to what looked like a naked grab at monopoly, hardly in the spirit of the early love, peace and happiness days of marijuana. Or, as the old investment mantra goes, “Bulls make money, bears make money, pigs get slaughtered.”

 

What’s Next?

ResponsibleOhio vows to soldier on in Ohio, though the passage of Issue 2 would prevent the monopolistic licensing provisions that were central to its approach. With 90 percent of Ohioans favoring medical legalization, it would not be unthinkable to see legislative action in the future or a more limited 2016 voter initiative. It is worth remembering that, earlier in the process, ResponsibleOhio’s constitutional amendment was only one of several approaches to legalization, some of which had broader support from advocacy groups.

On a national level, the only lingering effect may be to discourage the automatic award of licenses to political donors. Whether it will cause regulatory bodies in states like New York, where the number of licensees is severely restricted, to reconsider those limits remains to be seen.

Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

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