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Election Day 2016 could be the point of no return for legalized pot.
Recreational marijuana users can now legally light up a joint in states representing about 5 percent of the U.S. population. By the time Americans wake up on November 9, that percentage could be swelling to more than one-quarter.
Measures to legalize and regulate the sale of cannabis are on the ballot in California, Arizona, Massachusetts, Maine, and Nevada, and recent polls show the “yes” vote is winning in all five states. Approval would mark the biggest advance yet for advocates in the decades-long fight over legalizing marijuana—one that they believe could ultimately force the federal government to end its prohibition of the drug.
“On November 8, you can safely say we’ve reached the tipping point if these go our way,” said Tom Angell, founder of the group Marijuana Majority. The most important battleground is California, where advocates expect voters to approve personal use of pot six years after they defeated a similar measure. Support for Proposition 64 is polling at nearly 60 percent, and the measure has drawn support from leading politicians and newspapers that opposed it in 2010, including Democratic Lieutenant Governor Gavin Newsom. The leading candidate for California’s open Senate seat, Kamala Harris, predicted Wednesday that voters would approve the law, although as the state’s attorney general she can’t formally take a position.
Medical marijuana has been legal in California for 20 years, and sanctioning its use more widely would surely exacerbate tensions with the Drug Enforcement Administration and Congress over enforcement of federal laws classifying cannabis as a drug. “Passing legalization in California will greatly accelerate our ability to end the federal prohibition,” Angell predicted in a phone interview on Thursday. Keith Stroup, the founder of pro-marijuana lobbying group NORML, said he believed victory in California would signal a point of no return for the legalization movement. “California is almost a nation-state,” he said. “Once we get California, other than to water down future proposals, I don’t think [opponents] will be able to defeat them.”
Congress in 2014 passed legislation barring the Justice Department from spending money to endorse federal laws against marijuana in states that have legalized the drug for medical purposes, and a federal appeals court in August upheld the congressional directive. An amendment to prohibit the Justice Department from prosecuting recreational marijuana use in states that have sanctioned it fell just nine votes short of passage in the Republican-controlled House. Before 2014, the Justice Department had continued launching raids on medical-marijuana dispensaries even in states where they’re legal, and while the feds don’t typically go after average users, the amendment would’ve prevented them from raiding shops and growers who are abiding by state laws.
Beyond California, slimmer majorities of voters are backing full legalization in Massachusetts, Arizona, and Maine. In Nevada, polls have been mixed, with one in September showing strong support for passage and a more recent survey suggesting voters are split. “I think we have a reasonable chance to run the table,” Stroup said.
Legalization advocates are trying to replicate their successes from 2012 and 2014, when voters sanctioned recreational marijuana use in Colorado, Alaska, Oregon, Washington state, and Washington D.C. But they are facing a better-organized opposition this year led by the group Smart Approaches to Marijuana, which has argued that the proposed laws are creating another “Big Tobacco,” but for marijuana. They say these laws are industry-backed initiatives that allow companies to market pot to children just like cigarette companies did for decades. “This is not about marijuana,” said Kevin Sabet, the president of SAM. He travels around the country warning that ballot measures legalizing marijuana are dangerously lax and written by an industry that wants to hook kids on pot lollipops and other “cannabis candy.” “This is about a small amount of people making a lot of money,” he said. “This is not about personal liberty.” That’s especially true, Sabet argued, in California, where medical marijuana is famously easy to obtain and where recreational use hasn’t been considered a felony for 40 years. The drive to legalize, then, is all about business.
Sabet also disputes the idea that November will be a tipping point for marijuana legalization if the ballot measures in California and elsewhere prevail. “This is a very long game,” he said. “This is not going to be determined once and for all either this November or in November of 2018.” Sabet said there is already a backlash building in local communities in states that have legalized pot, spurred by rising rates of marijuana use and a spike in traffic fatalities linked to stoned drivers.
Sabet was speaking to me from an airport after leading seven rallies over two days against the California ballot measure. “California is much closer than we’re hearing about,” he argued. “It’s a coin flip in all of the states right now.” As Sabet sees it, the burden is lower for opponents of a ballot initiative like marijuana legalization to convince voters to go their way. “With ‘no,’ you just have to put a little bit of doubt in people’s minds, and they are movable,” he told me. “The more we get our message across, the more people change their minds from ‘yes’ to ‘no.’”
That’s a dynamic that worries Angell, a 15-year veteran of the legalization fight. He launched the Marijuana Majority in 2012 as a way of broadcasting the breadth of public support for the movement. The group’s website highlights not only well-known allies like Gary Johnson, the Libertarian presidential nominee, but approving quotes from a more surprising collection of notables, including televangelist Pat Robertson, former Texas Governor Rick Perry, and the conservative editorial board of the National Review. “The issue was marginalized for so long,” Angell told me.
One area where advocates and opponents of legalization agree is that economic and fiscal concerns have helped drive support for the movement in recent years. State officials struggling to plug budget gaps after the Great Recession have seen the benefit of collecting revenue from an industry that has long flourished underground. Advocates have further argued that legalization would improve safety by mandating testing of marijuana and by cutting off a source of income for drug traffickers. “We’ve already had ‘Big Marijuana’ for decades,” Angell said. “It’s called drug cartels and gangs.”
Though Marijuana Majority touts polls showing that 88 percent of voters nationwide support medical marijuana and 58 percent back full legalization, Angell is not as confident as Stroup about a broad victory in November. Support for ballot measures typically drops in the run-up to an election, he notes. And while supporters of legal pot are outspending opponents, he worries about the movement’s version of an “October surprise”—a rumored move by the casino tycoon Sheldon Adelson to pour millions into last-minute ads against ballot measures in Nevada and Florida. “I am very concerned about where we are in a number of these states right now,” Angell said. “It’s a little too close for comfort.”
In addition to the full legalization measures, voters in four other states—Florida, Montana, North Dakota, and Arkansas—are considering laws approving medical marijuana. Supporters are confident about their chances in Florida but are less certain in Montana and North Dakota, where there has been little polling on the issue. They are most concerned about Arkansas because there are two medical-marijuana measures on the ballot—one supported by the legalization movement and another that is considerably narrower and more restrictive. “There’s a concern that voters will simply vote their favorite medical-marijuana measure and split the vote,” Angell said.
Legalization advocates view the opposition strategy from Sabet’s group as confirmation of the increasing support for marijuana—and disingenuous. SAM describes itself as promoting a “third way” that “neither legalizes nor demonizes” marijuana use. But as Stroup points out, they have opposed medical-marijuana initiatives and laws like the one approved in Washington, D.C., that strictly limits how much pot people can grow or carry.
Another worry, Angell said, is complacency and overconfidence among marijuana advocates. Contrary to Sabet’s claims, he complained that the marijuana industry was not contributing enough to the legalization drive—and indeed, the medical-marijuana community in California is reportedly divided over the ballot measure in part because small growers view it as a boon to big business, according to the Los Angeles Times. The California Growers Association, for example, decided to stay neutral on the proposal. “There’s almost this sense that marijuana will legalize itself, that we’ve already won,” Angell said. If victories this year could put legalization on a nationwide path, losses would be a momentum killer. “A lot,” he admitted, “is riding on this.”
Russell Berman is a senior associate editor at The Atlantic, where this article was originally published.