There are few industries with quite as much on the line in the coming presidential election as the cannabis industry. In spite of pandemic-related setbacks, 2020 could prove to be momentous for cannabis as voters in five states decide on medical or adult-use cannabis legalization and as two very different candidates vie for the White House.
Voters in Arizona, Montana, and New Jersey will vote on adult-use legalization, while voters in Mississippi will decide on medical cannabis. Voters in South Dakota have the rare chance to consider both medical and adult-use cannabis legalization simultaneously.
New and maturing markets represent big opportunities for U.S.-based multistate operators, especially those that already operate in a changing market.
Arizona
Enough "yes" votes on Arizona's Proposition 207 would legalize adult-use cannabis in the Grand Canyon State. A previous push to legalize in 2016 failed after running up against a deep-pocketed opposition campaign, but proponents are more optimistic this time around.
"The spending for advocates of the bill are much larger than the expenditures of those against the bill. So, one reason that folks were hopeful is because there's not the same level of opposition to the bill in terms of advertising spending," said Eric Berlin, cannabis law attorney at Dentons.
In spite of widespread confidence, Berlin urged caution, warning that the fate of the cannabis initiative could come down to how many voters turn out for each presidential candidate. Although there is typically broad support for cannabis on both sides of the aisle, a Biden win in Arizona could up the odds adult-use passes, while a Trump win might hurt its chances.
With a robust medical market and a population north of seven million, Arizona is already primed for a promising adult-use cannabis market that could generate as much as $400 million in its first year and $760 million by 2024, according to Marijuana Business Daily.
Proposition 207 Descriptive Title: "The law would allow limited marijuana possession, use, and cultivation by adults 21 or older; amend criminal penalties for marijuana possession; ban smoking marijuana in public; impose a 16% excise tax on marijuana sales to fund public programs; authorize state/local regulation of marijuana licensees; and allow expungement of marijuana offenses."
Polling:
Registered voters:
Source: Monmouth University Poll, October 9-13, 2020
Mississippi
Mississippi voters will find two different cannabis-related questions on their ballots. They'll first be asked to vote for or against legalizing medical merijuana. Next, they'll have to choose between two similar sounding measures with very different implications: initiative measure No. 65 and alternative measure No. 65A.
Close to 230,000 voters in the historically red state signed a petition backing Initiative 65, which seeks to establish a medical marijuana program that grants access to residents with 22 conditions. The Mississippi Legislature added 65A, which would limit medical cannabis to terminally ill patients and does not provide a clear deadline or path toward establishing the program, according to The Clarion Ledger. Cannabis legalization advocates allege the move was a deliberate attempt to confuse voters and defeat medical cannabis legalization altogether.
"It's really interesting in Mississippi, what the government did, to try to make it difficult for citizens to be able to come in and make it clear that they want the citizen-provided ballot initiative," Berlin said. "And at the same time, you have government officials … coming out, heavily opposed to this, spouting sort of reefer madness stuff that most of us haven't heard for a few decades."
Although Berlin said the confusion will likely preclude a win for either measure, if Mississippi were to legalize, it would mark a significant milestone, as attitudes toward cannabis shift in the more conservative South.
Initiative Measure No. 65 text: "Should Mississippi allow qualified patients with debilitating medical conditions, as certified by Mississippi licensed physicians, to use medical marijuana?
Alternative Measure No. 65 A text: "Shall Mississippi establish a program to allow the medical use of marijuana products by qualified persons with debilitating medical conditions?"
Question 1: "Vote for approval of either, or against both"
Question 2: "And vote for one"
Polling:
Source: WLBT, FM3 Research, May 24-31, 2020
Montana
Adult-use cannabis is on the table in Montana. Voters will consider two measures: Initiative 190, which seeks to legalize adult-use cannabis and regulate its sale, taxation, and cultivation; and Constitutional Initiative 118, which aims to push the legal age for use to 21 years old.
Montana has gone red in every presidential election since 1992, and likely won't break the trend in 2020, according to a number of recent polls.. Even so, voters in the state approved medical cannabis in 2004.
Language:
Initiative I-190: "190 legalizes the possession and use of limited amounts of marijuana for adults over the age of 21. I-190 requires the Department of Revenue to license and regulate the cultivation, transportation, and sale of marijuana and marijuana-infused products and to inspect premises where marijuana is cultivated and sold. It requires licensed laboratories to test marijuana and marijuana-infused products for potency and contaminants. I-190 establishes a 20% tax on nonmedical marijuana. 10.5% of the tax revenue goes to the state general fund, with the rest dedicated to accounts for conservation programs, substance abuse treatment, veterans' services, healthcare costs, and localities where marijuana is sold. I-190 allows a person currently serving a sentence for an act permitted by I-190 to apply for resentencing or an expungement of the conviction. I-190 prohibits advertising of marijuana and related products."
Constitutional initiative no. 118 (CI-118): "Under the Montana Constitution, a person 18 years of age or older is an adult, except that the legislature or the people by initiative may establish the legal age of purchasing, consuming, or possessing alcoholic beverages. CI-118 amends the Montana Constitution to allow the legislature or the people by initiative to establish the legal age for purchasing, consuming, or possessing marijuana."
Polling:
Source: Montana State University, September 14 - October 2, 2020
New Jersey
New Jersey voters will have the option to legalize adult-use cannabis in the Garden State by voting "yes" on Question 1 for a state constitutional amendment. Polling suggests the measure will very likely pass, despite the fact the question is located on the back of the ballot. Proponents like Jessica Gonzalez, cannabis and intellectual property attorney at Bressler Amery & Ross, worried the location could contribute to Election Day confusion.
"If you asked me about three weeks ago, I would have said that I am cautiously optimistic. But now with a lot of the reports that are coming out, we are seeing an enormous amount of support," said Gonzalez, who also worked on the NJ CAN 2020 campaign to support the law. "You know, I think one of the issues that we're going to have is really, you know, making sure that folks turn their ballot around and answer the question, and properly sign their ballots."
New Jersey' is one of the most hyped upcoming markets for cannabis industry insiders because of the state's population density and its location adjacent to medical-only states Connecticut, New York, and Pennsylvania. If New Jersey legalizes, Gonzalez said it will likely kick off a "domino" effect, whereby surrounding states quickly follow so as not to miss out on cannabis tax revenue.
"New Jersey is really going to be that domino that once it falls, it's going to catalyze the Northeast," she said. "New Jersey is right smack dab in the middle of some of the states with one, very high density population, but we're also right across the river from the largest cannabis consumer market in the world, which is New York."
In the interim, as New Jersey takes advantage of business from the surrounding states, it could develop a very robust market of its own. Marijuana Business Daily projected it could bring in up to $950 million in sales by 2024,
Public Question 1: "Do you approve amending the Constitution to legalize a controlled form of marijuana called 'cannabis'? Only adults at least 21 years of age could use cannabis. The State commission created to oversee the State's medical cannabis program would also oversee the new, personal use cannabis market. Cannabis products would be subject to the State sales tax. If authorized by the Legislature, a municipality may pass a local ordinance to charge a local tax on cannabis products."
Polling:
Source: Monmouth University Poll, April 16-19, 2020
October polling:
Source: Stockton University, October 7-13, 2020
South Dakota
South Dakota voters will have the unusual task of voting on both medical and adult-use cannabis on their November ballots. More than 25,000 South Dakotans signed onto Initiated Measure 26, which proposes to legalize medical cannabis for critically ill patients. Constitutional Amendment A would legalize up to an ounce of cannabis for adults over the age of 21, as well as establish a regulated system for sales and cultivation.
South Dakota is a reliably Republican state that voted for President Donald Trump in 2016. Governor Kristi Noem is a vocal cannabis opponent. She famously vetoed industrial hemp legalization in 2019, arguing law enforcement would find it too difficult to distinguish between the two and that hemp could pave the way for cannabis legalization, Associated Press reported, although later came to a compromise with the state legislature. She has expressed her opposition to both cannabis measures on the ballot, though, according to Argus Leader.
"In many ways this bill would be, this ballot initiative would be passing over the general sentiment of the government. But the government has not opposed the bill in the same way that, for example, the Mississippi government is," Dentons' Berlin said.
Initiated Measure 26: "An initiated measure on legalizing marijuana for medical use."
Constitutional Amendment A: "An amendment to the South Dakota Constitution to legalize, regulate, and tax marijuana; and to require the Legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use."
Polling:
Initiated Measure 26
Constitutional Amendment A
Source: Aberdeen News; Mason-Dixon Polling and Strategy, October 19-21, 2020
