Marijuana Legislation & Lawmaker Intervention: An Overview

Elected officials who disapprove of cannabis are ignoring their electorate.

Members of Congress speaking on the house floor Source: Shutterstock

The Pew Research Center, a nonpartisan think tank, has found that 91% of adults in the United States think marijuana should be legal in some form. That includes 60% who think it should be legal for both medical and recreational use. Only 8% of respondents in the surveys have said they think marijuana should be outlawed. The National Organization for the Reform of Marijuana Laws (NORML) has found that nearly three in four Americans support punishment of a fine rather than jail time for people who are caught using marijuana recreationally in places where it isn’t legal. 

With that kind of overwhelming majority, why do so many politicians try to intervene when it comes to legalization? Even when enough people band together to approve legislation to alter marijuana laws, legislators will get in the way. Keep in mind, those lawmakers were elected to represent the will of the people. So why do they so often subvert it?

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State Legislators Across the Country Work to Restrict Voter-Approved Cannabis

The perfect example of this happening has been in South Dakota. The Stash has reported extensively on the fiasco that became of the state’s attempt to pass recreational and medical marijuana laws at the same time in the November 2020 election.

As the Campaign Director for South Dakotans for Better Marijuana Laws put things at the time, the Governor, “Decided to wage a war on both of [the] initiatives.” 

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South Dakota’s medical marijuana ballot measure passed with a 70% supermajority. Governor Kristi Noem tried to delay implementation of the measure, but failed. After she realized she wouldn’t be successful, she changed her tune, saying not only that she supported medical marijuana now, but that she had before, even as she’d tried to fight against it. Her rapid acceptance of the new laws might have been because she felt she’d won the larger battle: an effort against recreational weed.

South Dakota Governor Kristi Noem speaking at an event

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At Governor Noem’s behest, a group filed a lawsuit against Amendment A, the law that would have legalized recreational cannabis. The South Dakota Supreme Court ruled against the Amendment on a technicality, saying amendments to the state’s constitution can only touch on one specific topic, and Amendment A had nine total provisions. The provisions simply made for a clear-cut law, explaining what agencies would regulate what portion of the industry; but the South Dakota Supreme Court ruled those provisions are what made the law unconstitutional. 

Some of the money used to carry out those lawsuits was public funding. As in, taxpayers who voted to approve recreational marijuana had to pay for the legal fees to undo the law. 

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Mississippi’s legalization attempts were also thwarted by a technicality: Mississippi law says ballot initiatives must have signatures from voters in five state congressional districts in order to make it to the ballot. The problem was, Mississippi has only had four districts for the past two decades, making it impossible for any initiative to make it to a ballot. 

The Idaho state capital in the early morning

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In Idaho, state legislators are fighting dirty. Rather than intervening in plans to legalize marijuana, state lawmakers are hoping to make it so that no such measure ever exists. That state is one of just three that don’t allow any sort of THC, even at low-level amounts like you might find in CBD. Now, it could become one where it never can: the state is moving forward with a constitutional amendment that would ban the ability to legalize any more psychoactive drugs. The resolution would, therefore, make it so that marijuana cannot be legalized, no matter what voters want.

Nebraska’s legislators are also using interesting tactics to keep people from using cannabis. In 2021, the state Supreme Court invalidated a medical marijuana initiative that had already gathered 190,000 signatures to get on the ballot.  The next year, a Republican senator introduced his own medical marijuana bill that opponents argue is meant to confuse and detract from actual legalization. 

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The bill would allow a limited variety of patients with a medical marijuana prescription to buy certain types of marijuana, but cultivation for commercial or personal use would still be illegal, so dispensaries wouldn’t be able to purchase product to sell. As it’s illegal at the federal level to cross state lines with marijuana, it would be impossible for patients to legally access marijuana, even though they can legally consume it.

Nebraska’s governor, Pete Ricketts, says marijuana is a dangerous drug.

Nebraska Governor Pete Ricketts speaking at a podium

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“While attempts to circumvent the FDA review process may be driven by goodwill, any legalization effort outside this process puts Nebraskans at risk. For this reason, marijuana should not receive special treatment,” the Governor wrote.

Utah’s Medical Marijuana Initiative is another prime example of Republican intervention. 52.75% of voters chose to approve Proposition 2, compared with 47.25% who didn’t – a difference in 58,514 voters. Yet after voters passed the bill, the legislature stepped in and altered it.

After Prop 2 passed, Governor Gary Herbert called a special session to start working on alterations. A group called The People’s Right filed a lawsuit disputing the changes, as did Truce and the EAU, but the state legislature moved forward with its own version of the law anyway. Democrats in the state mostly argued lawmakers shouldn’t circumvent the voters’ will. Republicans said the amendments only came after hours of deliberation between supporters and opponents of the original bill (although they did not mention the deliberations ahead of its passing that led to its success).

“We strongly urge state lawmakers to honor the will of the people on medical cannabis legislation. Regardless of their personal policy preferences, lawmakers should respect that a majority of voters approved Proposition 2,” said Chase Thomas, Executive Director of Alliance for a Better Utah in a statement at the time. 

The new law was House Bill 3001, the Utah Medical Cannabis Act had Prop 2 as its base but made several amendments. The main changes were to the distribution system for the product and adjustments to how the industry is overseen. 

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Salt Lake City panoramic

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It reduced the number of medical marijuana outlets, going from the voter-approved 40 dispensaries to just 7 “cannabis pharmacies” with mostly state-run distribution. The voter-approved measure didn’t allow for smokable marijuana, but did allow edibles; the final version that passed cut out almost all edibles, except for gummies. The legislature also chose to remove certain diseases that voters thought should qualify for a medical marijuana prescription, including most autoimmune diseases. Chron’s disease and ulcerative colitis were the only ones remaining. 

Utah’s LDS Church had a hand in the negotiations, with some Prop 2 supporters arguing the church should not interfere with matters of state. When the Governor signed House Bill 3001, the Church of Jesus Christ of Latter-day Saints released a statement saying the passage of the new version, 

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“…once again shows how organizations with diverse interests can come together to resolve difficult issues for the benefit of those who suffer while simultaneously protecting our children.”

Cannabis Support Is Non-partisan, Cannabis Obstruction Isn’t

Every single one of the states listed above that are facing pushback against the voters’ will has Republican leaders. Yet 54% of Republicans say they support national marijuana legalization. A majority of voters in every single state support it, according to data from Civiqs. So why are lawmakers going against what their own voters want? 

Some guessers figure the politicians are choosing to support their own interests rather than their constituents’. Other experts believe those Republicans leaders are underestimating the support for legal marijuana, and simultaneously overestimating how many people think it should not be legal. Though for voters who already chose legalization, the waiting period can prove lengthy and frustrating, we may see that change as new leadership comes into power.

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