Ohio’s recreational cannabis initiative has been delayed due to coronavirus social distancing measures, and the petition’s language is also undergoing revisions at the request of Ohio’s Attorney General. Despite these setbacks, the movement is not dead in the Buckeye State.
During the election season, petitioners rely on interaction with the public to inform voters on ballot initiatives and to collect signatures. Without that in-person mechanism, all ballot initiatives and petitions could be delayed indefinitely. Tom Haren, Spokesperson for Regulate Marijuana Like Alcohol, has indicated the group is taking social distancing measures seriously during the pandemic.
“We made the decision early on that the health of our volunteers, supporters, medical marijuana patients, and the general public would be our primary concern,” he said. “As Ohio begins the process of re-opening, we are evaluating our options and hope to have more to share soon.”
Being unable to exercise democracy through legislation and proposed ballot measures has First Amendment implications, and addressing this in court has already been problematic. Earlier this month, a judge in Ohio’s Franklin County said he lacked the ability to make alterations to the state’s constitution that would allow fewer signatures to be collected during the pandemic. Freda Levenson of ACLU Ohio, who is representing Ohioans for Fair and Secure Elections, has concerns about what this could mean for election laws.
“The First Amendment says any infringement on speech, even if it’s temporary or brief is a violation of your rights,” she said. “They can’t say ‘you can talk later.’ You have a right to say it.”
But coronavirus is only part of the petition’s setbacks. In March, the Attorney General of Ohio informed the petitioners by letter that proposed legislation, which would amend the state’s constitution in order to legalize recreational cannabis, was insufficient and required additional information.
“Upon reviewing Section (A) of the proposed amendment and comparing it to the summary language, I am unable to certify the summary as a fair and truthful representation of the proposed amendment,” wrote Attorney General Dave Yost in the rejection letter. “Section (A) of the proposed amendment lists several findings and declarations that the amendment proposes to be made by ‘the people of the state of Ohio.’ The summary makes no mention of these findings and declarations. Thus, it completely fails to inform a potential signer that the amendment elevates these ‘findings and declarations’ to a constitutional standard.”
Haren has said that the group will continue to revise their proposed amendment based on the Attorney General’s notes.
Ohio is one of several states who have a strict medical cannabis program that is largely unsuccessful due to overregulation and lack of available products. Of patients who are qualified and enrolled in the program, thirty percent have not made a single purchase.
“If you’re a patient in Ohio, it’s hard to participate in Ohio’s medical marijuana program,” Haren said. “We were promised a program that worked.” Ohio’s state medical cannabis business association is currently not supporting the bill.
Up to an ounce of cannabis for recreational use would be allowed under the proposed legislation, along with up to six plants for personal use. The state would establish a regulatory body that would oversee production, quality control, licensing, and retail distribution of cannabis along with a proposed sales tax structure, 25% of which would go towards social equity programs.
Image by David Mark from Pixabay
ResponsibleOhio — the private investment group critically referred to as a cartel that is attempting to convince voters in the Buckeye State to pass a constitutional amendment legalizing marijuana — has gained plenty of national media attention during the past few weeks.
While the controversial effort, if successful, would allow cannabis consumers in the state to possess, consume, and even grow a small number of plants, the majority of marijuana advocates are against it. But why?
In a word: Monopoly.
Or, as some picky observers will correct, an oligopoly. Regardless of semantics, if passed by voters, ResponsibleOhio’s bill would create a closed market for the production of cannabis in the state. Unlike Colorado, Oregon, and Washington — which are open markets that invite robust competition (resulting in lower prices and higher quality for consumers) — ResponsibleOhio’s plan would limit production to 10 “pot factories” located throughout the state, each owned by a different investor who has ponied up nearly $4 million.
Following the saga of ResponsibleOhio has become a near-daily task due to the rapid pace at which the drama is unfolding. On Monday, July 20, it was revealed that the investment group’s signature drive, which collected more than double the number necessary to place the bill on the November ballot, had come up short of valid signatures to the tune of 29,509 (nearly 306,000 signatures are necessary).
In Franklin County, where ResponsibleOhio is headquartered, the validity rate for signatures collected was only about 40 percent. In Hamilton County, located in extreme southwest Ohio and home to Cincinnati, the validity rate was only 34 percent. In most counties, the majority of signatures collected were invalid.
Unless the percentage of valid signatures from the previous signature gathering campaign dramatically improve during the 10-day cure period, about 75,000 signatures will need to be collected overall (that’s 7,500 signatures per day). The group has until July 30 to accomplish its goal.
Some observers have theorized that ResponsibleOhio’s validity rate is so low due to the fact that it hired paid signature gatherers, many of whom arguably had little concern or vested interest in passage of the law. Cannabis legalization efforts in other states have traditionally utilized grass roots volunteers and activists for signature drives, helping ensure their dedication and concern for the campaign (and not simply collecting a paycheck).
Ohio law permits the group to compensate for its shortfall with a “cure period” of 10 calendar days in which it may collect additional signatures. If ResponsibleOhio is able to gather nearly 50,000 valid signatures during this period, it will appear on the Nov. 3 ballot. If not, it’s dead in the water.
Multiple Fronts of Opposition
However, even if the group is able to gather the required number of valid signatures within this time period, its bill still faces two major obstacles to passage.
First, November’s election will be an “off-off” year, meaning there are no major state or national offices or issues on the ballot. This typically results in lower turnout comprised mostly of an older voter population, a demographic that recent polls have shown is decidedly against marijuana legalization. ResponsibleOhio would need all the help it could get to convince enough citizens who will actually step into the voting booth that the measure is worthy of passage.
Second, ResponsibleOhio faces opposition not only from marijuana advocates who are opposed to the monopolization of production facilities in the state, but also from conservative politicians. Ohio’s Republican-dominated legislature and its most prominent leaders are openly against legalization of cannabis.
Whether as a ruse to cover their true intent of maintaining cannabis prohibition or a sincere effort to prevent monopolies in the state, Ohio’s lawmakers recently cleared a bill for inclusion on the November ballot that, if passed by voters, will prevent modifications to the state’s constitution that result in monopolies.
The proposed constitutional amendment, called House Joint Resolution 4 (HJR4), would:
“…prohibit an initiated constitutional amendment that would grant a monopoly, oligopoly, or cartel, specify or determine a tax rate, or confer a commercial interest, right, or license to any person or nonpublic entity.”
If ResponsibleOhio is able to gather the required number of valid signatures during the cure period, it will go toe-to-toe in November with the anti-monopoly issue. Assuming voter turnout is, as predicted, largely baby boomers and retirees — most of whom will know few of the details of either bill — they will likely support preventing monopolies in their state while also desiring to maintain marijuana prohibition.
However, assume that enough voters in Ohio say yes to ResponsibleOhio for passage. If HJR4 also passes, it will go into effect immediately, not 30 days later, as is the case with the legalization bill. This would nullify the investment group’s victory in no uncertain terms. The organization’s only option would be to rewrite its bill and begin the signature gathering effort anew for the 2016 ballot. Whether the proposed cartel’s wealthy investors would be willing to assume even more risk and wait another year for victory is obviously uncertain.
Desperation is a Stinky Cologne
Watching the ResponsibleOhio PR machine at work has been like witnessing an overly confident, opportunistic squirrel slowly die after a fatal fall incurred from reaching too far out on a branch for a nut. Recently, the campaign addressed naysayers by claiming that limited production will prevent low-quality or tainted product from making it to market.
Critics quickly countered that states like Washington and Oregon employ the simple process of testing. In states where recreational cannabis is legal, testing laboratories are quickly emerging to ensure the safety of cannabis and related products in an effort to help dispensaries and retail outlets comply with state regulations and protect patients.
Advocates Concerned about Precedent
Cannabis advocates and activists around the country are closely watching this situation. The fear is that, if it passes, ResponsibleOhio will send a message to similar well-heeled investors throughout the nation that citizens in other states might be willing to accept a constitutional amendment granting investors a closed market and, thus, guaranteed revenue based on a lack of competition.
Similarly, if ResponsibleOhio fails — whether from a shortfall of valid signatures, lack of votes in November, or being overruled by the passage of HJR4 — it will send a signal to investors eager to cash in on the “green rush” that there are limits to what state legislatures and citizens are willing to accept in exchange for legal pot.