As discussed in our recent cannabis coverage, going into this week’s midterm election, five states had ballot measures giving their constituents an opportunity to weigh in on cannabis legalization. As the votes are tallied, two of those five measures have passed, with the remaining three failing. Some opponents of legalization herald these results as evidence that cannabis legalization is not a forgone conclusion for the nation, but it is now the case that nearly half of Americans will soon live in a jurisdiction where the sale and use of recreational cannabis is legal.
The results of the election will also have further impacts on cannabis policy based on newly elected governors and lawmakers.
Ballot Measures
Maryland. Maryland is set to legalize recreational cannabis comfortably. Voters voiced overwhelming support for a state constitutional amendment that guarantees adults age 21 and older the right to legally possess as much as 1.5 ounces of recreational cannabis or 10 grams of cannabis concentrate, to grow two plants at home out of public view, and creates cannabis business assistance funds and community reinvestment and repair funds. As of this, with 82% of the expected vote reporting, 65.6% of voters supported the amendment.
But Maryland’s work is not done. House Bill 837, which goes into effect immediately upon approval of the constitutional amendment, directs Maryland to conduct studies on the impact of legalization, focusing on health and business disparities. The aim of studying the latter is to facilitate an effort to understand how best to support women- and minority-owned businesses’ entry into the industry. Furthermore, the state must also establish a commercial licensing system and/or regulatory framework and decide whether to impose excise taxes on cannabis sales.
These results pair with the selection of Maryland’s governor-elect, Wes Moore. He has voiced support for legal cannabis and expunging records for those convicted of simple possession. Moore also indicated he would work toward equitable access to the emerging cannabis industry.
More broadly, Maryland’s House and Senate election results were positive for the cannabis industry. Democrats who support the sector and the Secure and Fair Enforcement (SAFE) Banking Act, like Reps. Dutch Ruppersberger (MD-2), John Sarbanes (MD-3), Steny Hoyer (MD-5), Kweisi Mfume (MD-7) and Jamie Raskin (MD-8), won down the ticket. Former District 4 Congressman Anthony Brown (D), who retired and ran for the state’s attorney general seat, also won his race. With more than 60% of the votes, Brown defeated Michael Peroutka (R) just before the state began its legalization process.
Brown is a strong champion of the cannabis industry. Throughout his time in Congress, he has supported the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2022 and 2020, the SAFE Banking Act of 2021 and 2019, the Marijuana Justice Act of 2018, the Clean Slate Act of 2018 and several other cannabis-related measures. The former congressman also introduced his own cannabis bill, the Restoring Equity For Offenses Related to Marijuana (REFORM) Act, which would amend the Uniform Code of Military Justice (UCMJ) to more closely align cannabis- and alcohol-related penalties. Brown’s attorney general campaign also focused heavily on cannabis legalization and communities adversely impacted by the war on drugs. He said he “strongly support[ed] [the ballot measure] and the companion legislation that would ensure we move forward equitably by taking strong steps” and noted that the advancement of the proposal would “create a fund to support small, minority-owned and women-owned businesses entering the adult-use cannabis industry as well as supporting Historically Black Colleges and Universities and business incubator programs.”
Missouri. Missouri is also set to amend its state constitution—although with a smaller margin of support than in Maryland. With 89% of the count completed, 53% of Missouri voters favor legalization. While regulated cannabis has enjoyed broad bipartisan support across the state, many pro-legalization advocates rallied against this initiative, arguing that it risked ceding the market to the corporatization of the market, pointing to the medical cannabis industry that largely bankrolled the legalization effort. Missouri Republican Gov. Mike Parsons also opposed this effort in part for similar reasons, claiming that the amendment would mostly benefit the “corporations behind marijuana.”
The amendment allows adults 21 and older to purchase and possess up to three ounces of cannabis and grow up to six flowering plants, six immature plants and six clones at home. The ballot measure also imposes a 6% sales tax on recreational cannabis. The change will take effect in December, and businesses can start selling recreational cannabis in February 2023.
The Senate midterm election race in Missouri was a close one to watch for the cannabis industry as former SAFE Banking Act co-sponsor Sen. Roy Blunt (R-MO) was not running. Earlier this year, the senator announced that he would retire at the end of his term. In addition to being a SAFE Banking Act co-sponsor, Sen. Blunt co-sponsored the Therapeutic Hemp Medical Access Act of 2015 and 2017 and has voted favorably for state medical cannabis programs and veterans’ equal access amendments. Eric Schmitt (R), Missouri’s former attorney general, and Trudy Busch Valentine (D) ran to replace the senator. With more than 55% (1,143,626) of the votes, Schmitt won the Senate race. However, it’s uncertain if he will follow in his predecessor’s footsteps in supporting the cannabis industry. More broadly, it remains unclear how Sen. Josh Hawley, now the state’s senior Republican senator, will approach the sector. Although Sen. Hawley supports medical cannabis, he opposes recreational cannabis. During an interview with FOX4, he said recreational cannabis was “terrible policy.”
Comparatively, voters in three states, Arkansas, North Dakota and South Dakota, rejected recreational cannabis measures, making this the first election cycle in which multiple states defeated cannabis referendums.
Similar to the campaign in Missouri, the medical cannabis industry funded the Arkansas measure to the tune of $13 million. Unlike Missouri, this sparked a substantial backlash, and Missouri voters rejected the measure by double digits. And while it appears unlikely that lawmakers will pass a legalization bill in the near future, advocates are likely to put forward another attempt in 2024.
Although advocates are optimistic about the upcoming opportunity to advance another cannabis legalization ballot proposal, the state’s senators are not. Arkansas Adult Use Cannabis Amendment (Issue 4) was strongly opposed by Republican Sens. John Boozman and Tom Cotton. Both took to Twitter before the midterm election and repeatedly vocalized their opposition to Issue 4.
In U.S. Senate election, Arkansas voters strongly favored Sen. Boozman. He secured more than 587,799 (65.8%) votes.
Another cannabis legalization ballot proposal that had strong support but ultimately failed was in North Dakota. Measure 2 received about 45% of votes in support. In 2018, North Dakota soundly rejected legalization. And while in 2020, Republican Gov. Doug Burgum signed a bill decriminalizing low-level cannabis possession, advocates directing the campaign for the 2022 ballot measure do not seem to have made sufficient changes to convince state voters to extend the legalization trend.
And although support for cannabis legalization continues to grow in North Dakota, this is the third constitutive year such a proposal has missed the passage mark. This prompts the question, is North Dakota prepared to legalize medical cannabis? At first glance, based on the polls from 2018, 2020 and 2022, the immediate answer may be no; however, Sens. Kevin Cramer (R-ND) and John Hoeven (R-ND) and Rep. Kelly Armstrong (R-ND) would argue differently.
Usual for many reasons, Rep. Armstrong’s midterm race versus former Miss America Cara Mund (I) was no challenge for the incumbent congressman. Rep. Armstrong won by a wide margin by collecting 147,984 (62.3%) votes. And although his win was no victory for the Democratic White House, it was for the cannabis industry. During his time in Congress, Rep. Armstrong co-sponsored and voted in favor of the SAFE Banking Act of 2021 and 2019 and the STATES Act of 2019. The congressman does not support recreational legalization, but his position on medical cannabis, veterans’ access, states’ rights and access to traditional banking services could help the federal government advance related legislation.
When it comes to cannabis, Sen. Cramer and Rep. Armstrong’s positions align. The senator remains hesitant about recreational cannabis but supports states’ rights and medical cannabis and is a SAFE Banking Act co-sponsor. In 2019, Sen. Cramer introduced the Clarifying Law Around Insurance of Marijuana (CLAIM) Act with Sens. Bob Menendez (D-NJ), Jeff Merkley (D-OR) and Rand Paul (R-KY) and co-sponsored Sen. Dianne Feinstein’s (D-CA) Cannabidiol and Marihuana Research Expansion Act and Sen. Jeff Merkley’s SAFE Banking Act twice, and helped Sen. Elizabeth Warren (D-MA) and former Sen. Cory Gardener (R-CO) introduce the STATES Act.
Sen. Hoeven was also victorious in his midterm election race. Running against Katrina Christiansen (D) and Rick Becker (I), he received 56% of the votes, while Christiansen and Becker collected 25% and 19%. However, the senator’s campaign did not address the state’s cannabis legalization ballot measure or cannabis reform generally. Among his colleagues, Sen. Hoeven remains the most conservative regarding cannabis legalization, although he has supported some measures related to state medical programs and veterans’ access.
Because of the political makeup of North Dakota’s state and federal political offices, the advancement of Measure 2 was critical for the cannabis industry. The state Senate and House have large Republican majorities and both Gov. Doug Burgum and Attorney General Drew Wrigley are GOP members. The state’s federal lawmakers are also all Republican, so the opportunity to advance a cannabis legalization ballot measure in an all-red state was monumental for the sector.
Finally, while South Dakota voters previously voted to legalize cannabis only to have the measure invalidated by the state Supreme Court for violating the single-subject rule, this cycle’s measure did not pass.
Like North Dakota, South Dakota’s congressional delegation is on the smaller side, with two senators and one House representative and is all Republican. To that, the senators and congressman are not entirely industry friendly. In a Facebook post in 2014, Sen. John Thune said, “while I understand that people have strong opinions on both sides of this debate, I do not support legalizing the use of marijuana. Currently, the medical benefits from the use of marijuana are still inconclusive, and I believe that we must be careful not to increase the availability of marijuana and the use of marijuana for nonmedical reasons. However, I support the development of alternative medications that will provide relief to patients without opening the door to substance abuse.” And although his position on the issue is evolving, the senator is still not fully onboard. More recently (2021) on the topics of medical and recreational cannabis ballot measures and legalization, Sen. Thune said, “medical’s getting big—the recreational [market is] not as big yet, but it’s growing—and there’ll be more initiatives on the ballot. It’s an area that’s still evolving, and our country’s views on it are evolving … How we deal with it nationally I think is still an open question.”
Although Sen. Thune’s stance is progressing, the same may not be true for Sen. Mike Rounds, who said he does not support “efforts to decriminalize and/or legalize marijuana” and noted that “[he did] not want to see marijuana legalized.” In response to questions about recreational cannabis, access to traditional banking services and small cannabis and cannabis-related businesses, the senator said, “I think we have a federal law on the books that is pretty clear. Just because this administration has chosen not to enforce the law does not mean that the law is not a valid law. If they want to come to Congress and change the law, that’s a different deal. But I haven’t seen that yet ... so far this administration has decided they aren’t going to enforce that law and I think that’s a mistake.”
Rep. Dusty Johnson remains “open-minded” about cannabis-related issues. In 2020, post-vote for the MORE Act, House Judiciary Committee Chair Jerry Nadler’s (D-NY) bill, the congressman said, “Given recent South Dakota election results, I’m staying open-minded, but I don’t think this is the right bill. This package prioritizes making grants to new pot stores instead of law enforcement, treatment, and youth prevention.” Rep. Johnson ultimately voted no on the MORE Act but has supported the SAFE Banking Act.
Conclusion
Results coming out of this week’s election are undoubtedly mixed for the cannabis industry and the chasm between federal and state cannabis laws remains pronounced. Adults will soon be able to legally purchase cannabis in 21 states across the country, but cannabis remains a Schedule I drug per the Controlled Substances Act—the same classification as heroin. The next session of Congress is unlikely to undertake significant cannabis reform, especially if Republicans gain control of the House, but a number of political insiders are pushing for financial or banking relief for the industry.
This document is intended to provide you with general information regarding the election results for state cannabis ballot initiatives. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.