A Mixed Bag: State Marijuana Ballot Initiatives in the 2022 Election Cycle

Advisory

In addition to determining control of Congress in the 2022 midterm elections, voters in a number of states also weighed adoption of ballot measures governing cannabis issues. During this election cycle, Arkansas, Maryland, Missouri, North Dakota, and South Dakota held referendums on recreational marijuana legalization. The outcomes varied significantly: Maryland and Missouri approved recreational marijuana by margins of 31 points and 6 points, respectively, while voters in Arkansas, North Dakota, and South Dakota rejected the ballot measures by 12 points, 10 points, and six points, respectively. As a result, Maryland and Missouri now join 19 others and Washington, DC in legalizing the recreational use of marijuana.

Interestingly, those states rejecting legalization measures have previously approved comprehensive medical marijuana laws. South Dakota voters, in fact, previously approved an initiative legalizing recreational marijuana in 2020, which the state Supreme Court subsequently struck down following a legal challenge funded by Governor Kristi Noem.

State adoption of legal medical and recreational marijuana laws has rapidly increased since voters in Colorado and Washington approved the recreational use of marijuana in 2012. After the 2022 election, nearly half of the United States population will live in a state with legalized recreational marijuana. Additionally, 37 states, DC, and Puerto Rico all have laws permitting marijuana sale and use for medicinal purposes, and 11 states have laws permitting “limited-access medical cannabis,” which refers to CBD oil or cannabis under a certain THC content limit that is used for specific medical conditions. Nearly five million Americans are registered under state-legal medical marijuana programs.

The success of marijuana initiatives at the state level continues to put pressure on federal drug policy, adding millions of additional people to the state-legal marketplace and further eroding federal prohibitions. Despite the reluctance of voters in Arkansas, North Dakota, and South Dakota, the successful state referendums on marijuana make it increasingly likely that Congress will take action, with four additional senators and the respective House delegations now hailing from states with legal programs.

Developments at the state level have driven congressional legislative changes. Since Colorado and Washington legalized cannabis programs in 2012, substantial numbers of legislative efforts have been introduced in each cycle of Congress. In a related post, we take stock of the legislative efforts during the 117th Congress. Support in each successive Congress has grown, with Congress advancing appropriations riders protecting state legal programs, opening markets to CBD production, and, during the 117th Congress, enacting legislation to facilitate cannabis research. The Biden Administration acted to offer a mass pardon of federal marijuana possession charges in October 2022, a policy which governors around the country have begun to copy.

However, it remains to be seen if this additional support will translate into immediate success for broader reform efforts, such as the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3617), which passed the House; the Cannabis Administration and Opportunity Act (CAOA, S. 4591); or the Secure and Fair Enforcement (SAFE) Banking Act (H.R. 1996/S. 910), which has passed the House several times.

Efforts during the Lame Duck focused on including a package of reforms in the House-Senate compromise of the FY 2023 National Defense Authorization Act (NDAA), including the SAFE Banking Act, plus the Harnessing Opportunities by Pursuing Expungement (HOPE) Act (H.R. 6129) and the Gun Rights and Marijuana (GRAM) Act (H.R. 2830). Despite significant efforts from Congressional champions, these provisions were not included in the final text of the NDAA. While it remains possible for a end-of-year omnibus package to carry cannabis provisions or for a stand-alone compromise bill to be enacted, it appears more likely that the 118th Congress will restart cannabis liberalization efforts yet again, albeit with a slightly more favorable state law background.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.