This is a collection of Cannabis Business Times’ online election coverage. Catch up on all of CBT’s 2020 election news here.
As votes for the presidential race continued to be tallied, cannabis emerged as a clear winner on Election Night, with four states—Arizona, Montana, New Jersey and South Dakota—passing adult-use legalization measures, and Mississippi and South Dakota passing medical legalization measures. South Dakota is the first state to pass adult-use legalization without first having an established medical market.
In the weeks following this historic night, many cannabis industry stakeholders wonder what comes next for these new markets.
All five of the newly legalized states are significant in their own way and could each play a role in the future of continued reform efforts, according to industry stakeholders.
New Jersey, for example, could be the tipping point for adult-use legalization in the tri-state area, as New York and Pennsylvania consider policy reform efforts heading into 2021, according to Steve Fox, counsel at Vicente Sederberg and managing partner of VSS Strategies, the law firm’s policy and public affairs consulting affiliate.
“I serve as an adviser to the Cannabis Trade Federation, and we actually just put out an alert where I described these ballot initiatives as domino initiatives, noting that they were likely to lead to other states following that,” Fox says. “I think the Northeast, with New York, Connecticut, Maryland [and] Pennsylvania, … [has] good prospects for moving forward as early as next year.”
In addition, medical cannabis legalization in a conservative state like Mississippi is a good sign for the federal outlook, as cannabis becomes an issue that crosses party lines, according to Rachel Gillette, partner and chair of the Cannabis Law Practice at Greenspoon Marder.
“I think it shows the trend pretty clearly, that despite all sorts of political persuasions, cannabis has very strong support for legalization overall, nationally,” she says. “I think that’s a good sign for national legalization, and that’s regardless of which party controls the presidency or the House or the Senate.”
Consumer research firm BDSA’s data shows “consumption of cannabis in a bipartisan way,” says Liz Stahura, BDSA’s co-founder and president.
“Over 50% of those who identify as strongly conservative in our research are in support of some sort of cannabis legalization,” Stahura says. “And we’re really seeing that red curtain come down, as illustrated by states like South Dakota, like Montana, like Mississippi … that are embracing cannabis legalization.”
For example, according to BDSA’s research in South Dakota, 16% of adults 21 and older are current consumers, meaning they’ve consumed cannabis at least once in the past six months, Stahura says, which makes sense because cannabis was illegal there when the research was conducted. “A full 47%, nearly half, are ‘acceptors,’ stating they are not currently consumers, but they are open to it,” she says. About 37% are “rejectors,” or people who have not consumed cannabis in the past six months and do not want nor plan to. When compared to states that are fully legal, “We can see the potential for growth in consumption from those who are ‘acceptors’ or ‘cannacurious,’” she says, with about 36% of the 21-plus population in the U.S. consuming where cannabis is legal, and 33% who have not consumed but are open to trying it.
“The populations of these states are open to both legalizing and also ultimately to consuming once a legal framework or legal program is in place,” Stahura says.
Sam D’Arcangelo, director of the Cannabis Voter Project at HeadCount, echoes this sentiment, and says both the successful state initiatives and some individual U.S. House and Senate results could serve as a bellwether of more politicians expressing support for cannabis reform.
Here’s a roundup of the House, Senate, state and local races cannabis industry advocates watched closely and how the results could shape the future market.
Despite losing seats, Democrats will retain control of the U.S. House of Representatives, which is planning a December floor vote on the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, legislation that would federally decriminalize cannabis by removing it from the Controlled Substances Act.
Given adult-use legalization wins in red states like Montana and South Dakota, D’Arcangelo says, “I think you’re going to start to see some Republicans consider maybe recalibrating their position on cannabis reform.”
In the 1st Congressional District in Florida, pro-cannabis Rep. Matt Gaetz (R) won reelection. “It was no contest,” D’Arcangelo says of Gaetz’s win. “He’s been pretty unapologetic in his support for cannabis reform throughout his time in Congress. So, at the very least, he demonstrates that this issue’s not hurting him in any way, shape or form, and in fact, it might even be helping him.”
Don Murphy, director of federal policies at the Marijuana Policy Project (MPP) and a former member of the Maryland House of Delegates in the 1990s and early 2000s, says Gaetz’s win should serve as an example to other conservative leaders who may support cannabis legalization but are that concerned publicly vocalizing that could hurt their candidacy.
“… It proves that Republicans in a red district can take the lead and be outspoken [on cannabis] and survive,” Murphy says. “Not only survive, but Gaetz crushed his opponent.”
Which party controls the U.S. Senate will come down to two January runoff elections in Georgia.
“It’s still possible that the Democrats can have 50 seats if they win both of those runoff elections in Georgia,” Fox says.
If that happens, some form of cannabis reform could pass at the federal level, Fox says. “You had the leader for the [Senate] Democrats, Chuck Schumer, saying numerous times recently that it’s time to—well, sometimes he says ‘decriminalize’—but … end prohibition at the federal level,” Fox says. At the same time, he says, “To be clear, it’s not easy to pass anything in Congress. So, you need to take everything with a grain of salt.”
However, Murphy points out the significance that 30 Senators now are from states that have legalized adult-use cannabis and says the focus should not be on Democratic control alone.
What would happen if Republicans retain control?
“I don’t really see big marijuana reforms moving forward in the Senate,” D’Arcangelo says. “But then you’ve got to wonder, with this now-clear demonstration of marijuana’s popularity, are Senate Republicans going to reexamine their stances on marijuana?”
Fox shares similar sentiments, saying, “… The No. 2 Senate Republican, John Thune, is from South Dakota, and he can see how many of his constituents just voted in favor of medical cannabis, not to mention a majority also supported [full] legalization.”
Murphy says two other races that he thought were significant were the Wyoming and Kansas Senate races, where voters in both states selected Republican Senators who previously served in the House and at that time voted to protect state-legal cannabis businesses from federal intervention. Although some Republican leaders may not like cannabis, they will support states’ rights, he says.
Nothing is certain, D’Arcangelo points out, but if more Republicans change their stances on cannabis, he says the Secure and Fair Enforcement Act (aka SAFE Banking Act) would be more likely to pass than the MORE Act.
If the MORE Act does pass both chambers, D’Arcangelo says Joe Biden could sign it. And vice president-elect Kamala Harris, who sponsored the Senate version of the MORE Act, will have the ear of Biden. “I’d be surprised if he didn’t, I guess, if a Democratic Senate were to put that on his desk,” D’Arcangelo says.
In Vermont, voters re-elected Gov. Phil Scott (R), who recently permitted legislation to become law that will establish a taxed-and-regulated adult-use cannabis market in the state.
Senate Bill 54 cleared the Vermont House and Senate in September, and Scott let the measure become law without his signature.
Now that Scott has won re-election, Matt Simon, New England political director for MPP, says, “It’s pretty much a continuation of the status quo in Vermont.”
Meanwhile, Vermont House Speaker Mitzi Johnson (D) lost her bid for re-election, which Simon says, “could be taken as a small positive,” as she was largely viewed as an opponent of cannabis policy reform efforts.
Aside from this change, Simon believes cannabis policy in Vermont is where it was headed before Election Day.
“The governor seems resigned to allowing a board to be created and to start doing its work, so they’ll start building that [Cannabis] Control Board, writing the rules, getting legislative approval, and there will be an ongoing process of slowly implementing the law that was passed,” he says.
The state’s medical cannabis program will undergo a transition as well, as S.B. 54 transitions medical cannabis oversight from the Department of Public Safety into the to-be-established Cannabis Control Board, which will eventually oversee Vermont’s medical and adult-use cannabis programs.
While it seems that cannabis policy reform is well underway in Vermont, Simon says that New Hampshire is likely to see “all bad things” on the cannabis front considering Gov. Chris Sununu’s (R) re-election.
Sununu prevailed over his Democratic challenger, Dan Feltes, in a roughly 65-33 margin, which Simon says wasn’t surprising.
“Sununu won by a huge margin and had big coattails,” Simon says. “So the GOP took control of both the House and Senate. … Several prohibitionists got elected and re-elected to the state Senate, making it even more hostile than it was before. It’s hard to find any silver lining in the cloud in New Hampshire.”
In the midst of the COVID-19 pandemic, Simon says several cannabis-related bills that were introduced this year got pushed to next year’s legislative session. Among the legislation that was postponed were bills that would have allowed patients to purchase medical cannabis from any dispensary, not just the one they signed up for when they enrolled in the program, as well as legislation that would have allowed out-of-state patients to access New Hampshire’s dispensaries.
“[The bills] all died, but they’ll come back, and some of them might pass,” Simon says. “The governor has signed several bills over the years to improve the medical cannabis program, including adding PTSD, chronic pain and other conditions. … I think there’s certainly the possibility to continue improving the medical program.”
Cannabis policy reform efforts could also face an uphill battle in Indiana, where Gov. Eric Holcomb (R) defeated Woody Myers (D).
Holcomb not only opposes adult-use cannabis legalization, but also medical cannabis and even decriminalization, says Olivia Naugle, legislative analyst for MPP.
“Indiana is severely lagging behind both its neighbors and the rest of the country on cannabis policy,” Naugle says. “It’s one of only 19 states that’s still implementing jail time for simple possession of cannabis, and one of just 14 that still lacks a compassionate medical cannabis law.”
While there aren’t any current cannabis-related proposals pending in the state legislature, Naugle says she is interested to see how next year’s legislative session progresses.
“Nationwide, … we saw sweeping victories in the marijuana reform movement in this election cycle, so as more and more states move forward, it’s only a matter of time before Indiana improves its laws,” she says. “It’s time for elected officials to act on this issue to bring meaningful reform to Indiana.”