Marijuana legalization won big at the ballot box. Now the real challenges start

Election Day was a blowout for the cause of legal marijuana. Ballot measures legalizing medical or recreational cannabis use passed for the first time in seven states, with a defeat in Arizona the only setback for activists. But, as the experiences of other legal-marijuana states show, the thorniest debates are just starting. How should the trade be regulated? Who will benefit financially? How will the federal government act? These questions and others will roil the states for years to come.

The presidential and congressional election results have already put some of these measures in peril. Activists knew that an overwhelming show of support for marijuana ballot initiatives could be interpreted as a mandate for lawmakers to reconsider the federal prohibition on the plant. (President Barack Obama added to these hopes by saying that if just five of these states decided to allow a form of cannabis use, that would mean that “a fifth of the country [is] operating under one set of laws, and four-fifths in another. . . . That is not going to be tenable.”)

The new political landscape, however — with President Donald Trump in office alongside a Republican-dominated House and Senate — signals that, despite a groundswell of popular support for marijuana legalization and its growing geographic footprint in America, ending the plant’s federal prohibition is unlikely to be a legislative or executive priority. Trump’s prospective federal law enforcement appointments don’t suggest an extension of the Obama administration’s noninterference policy: Early, though now unlikely, contender Chris Christie, New Jersey’s governor, promised in the Republican primary race that he’d terminate legal marijuana in all 50 states. Trump’s choice for attorney general, Alabama Sen. Jeff Sessions said in April that “good people don’t smoke marijuana ” and that he thought the Ku Klux Klan was “okay until I found out they smoked pot,” which he later said was a joke.

Journalist Tobias Coughlin-Bogue also raises the disturbing possibility that an anti-immigration attorney general might not disrupt state cannabis initiatives entirely, but could selectively enforce federal drug laws against immigrants and people of color in the cannabis industry.

But even if appointed officials honor Trump’s professed respect for states’ rights, marijuana legalization is just the start of a protracted dialogue over how to craft cannabis policy. States that legalized marijuana earlier have contended with unanticipated consequences as well as social and legal disputes over the rules of a newly sanctioned industry.

Take Pueblo, Colorado, which became the state’s second-largest hub of marijuana production after legalization in 2012. The city voted on two measures in this election, both proposing local bans on the cannabis industry. Proponents argued that legalization has attracted a migration of homeless persons from neighboring states, overburdening social services. The measures, in a town where the new industry has yielded thousands of jobs, were soundly rejected. But other cities, such as Los Angeles , are now studying the link between the availability of cannabis and the movements of homeless people, wondering whether to use the tax revenue from cannabis to expand homeless services or just leave them as public costs that other taxpayers are irritated about subsidizing.

In California, more than 50 municipalities that correctly anticipated the passage of Proposition 64 (which legalizes and regulates “adult use” cannabis in the state) also drafted ballot measures to impose local taxes on pot, all but one of which passed. While tax revenue has helped sell skeptics on the benefits of legalization, if taxes are too severe, they risk driving consumers back to underground suppliers. Proposition 64’s proposed statewide tax was controversial: Dale Gieringer, director of California NORML, a pro-pot lobbying group, called it “inordinately high” and predicted that it would “encourage a lot of black-market activity for the foreseeable future.” Steep local taxes could compound this problem, as cities in California passed levies ranging from 3 to 20 percent, which, on top of the state tax, means that for some the cost of medical marijuana will rise by 27 percent.

In Montana, where voters originally approved medical marijuana in 2004, voters chose to reform the law this year after a Republican-controlled legislature repealed the original act and replaced it with a far more limited version in 2011. While state Democrats at the time agreed that the original program was too permissive and sponsored the replacement, Republicans added restrictive provisions such as a rule limiting medical marijuana providers to three patients each, suddenly leaving 93 percent of registered patients without any legal means of procuring their medication. The new program voters passed this month is eventually expected to restore access for those temporarily dislocated from a legal supplier.

Aside from the legislative and social growing pains of legal pot, municipalities have ethical issues to consider — namely, who stands to benefit from these new laws. California, recognizing that people of color were most affected by racially biased enforcement of cannabis prohibition, made history with its answer: It’s the first legalization initiative to allow drug offenders to participate in the sector from the start, as well as to include reparations for communities torn apart by drug policy. The pro-64 campaign explicitly argued that it’s unethical to permanently disenfranchise previous offenders for an act that a majority of voters now deem acceptable. Relatedly, Maryland’s Legislative Black Caucus has raised concerns about the fairness and diversity of license distribution for that state’s developing medical marijuana program.

As these cases demonstrate, legalization often raises surprising social and economic complications that can elicit new resistance. Cannabis consumers and others in legalized communities have good reason to pay attention to these challenges, as they will probably be called on to vote on cannabis regulations again as the industry matures and new concerns crop up. Cases like Pueblo and Montana serve as reminders that policy regression can be as easy as progress.

It’s also important for the voting public not to merely settle for marijuana legalization as presented, but to put political pressure on their representatives to ensure that cannabis policy mitigates potentially harmful outcomes such as burdensome taxation, unequal opportunity in the industry and disruption to consumers’ medical needs. Given the possibility that state legalization projects could be subject to federal interference (or even prosecution of participants), citizens may need to turn up the heat on their lawmakers to convince them that access to legal cannabis, given the diversity of states now supporting its medical or recreational use, is finally a bipartisan value.

– Kilby is a writer and journalist based in Los Angeles.