WOLA: Advocacy for Human Rights in the Americas
10 Nov 2016 | Commentary

Silver Linings: U.S. State Votes to Legalize Cannabis Boost Reform Opportunities in the Americas


One of the most striking juxtapositions of the 2016 U.S. elections is that on the same day that the nation elected to the presidency a candidate who employed openly racist language and fueled his campaign by denigrating and stoking fear of Mexicans, four U.S. states—notably including California—continued to roll back cannabis prohibition, a policy rooted in overtly racist demonization of Mexicans and black Americans in the early 20th Century. With over 20 percent of Americans now living in states that have voted to regulate rather than ban cannabis, the United States is in no position to slam the brakes on similar reform efforts abroad. The U.S. government has championed global cannabis prohibition for decades, but within the United States a shift is clearly underway towards a more humane and reasonable approach, opening the door for other countries to explore their own regulatory alternatives to the disastrously failed strategy of prohibition.

Donald Trump’s stunning triumph in the presidential election is undoubtedly the most dramatic outcome of the 2016 U.S. elections. The rhetoric that characterized Trump’s campaign—frequently xenophobic, racially tinged, often misogynistic—has left many people in the United States and around the world fearful of what may come next, not least in Latin America.

But Trump’s victory was not the only outcome of November 8 that will reverberate around the globe. On the same day, four states—California, Maine, Massachusetts, and Nevada—approved ballot initiatives legalizing and regulating cannabis for adult use, bringing to eight (plus the District of Columbia) the number of U.S. states that have voted to legalize cannabis. (Arizona voters defeated a legalization initiative in their state.) Overnight, the number of Americans living in states where voters have chosen to legalize cannabis leapt from 18 million to nearly 69 million; one in five Americans now reside in jurisdictions where cannabis is legal for adults under state law. Prior to November 2012—when Colorado and Washington became the first states to approve legalization initiatives—not a single member of the U.S. House of Representatives hailed from a state that had legalized adult-use cannabis. When the next Congress is seated in January, 91 members will come from legalizing states.

In addition to the four states that voted to legalize adult-use cannabis generally, on November 8 another three states—Arkansas, Florida, and North Dakota—voted to approve the use of cannabis for medical purposes, while Montana voters approved an initiative to broaden access under their state’s existing medical marijuana law. Significantly, all three of the new medical marijuana states, as well as Montana, voted for Donald Trump for president. Adult-use legalization remains a “blue” (i.e., Democratic) state phenomenon; but not so medical access. Of the eighteen states that have approved medical marijuana (but not yet legalized adult-use or “recreational” cannabis), eight are “red” (Republican) states, based on their voting in the presidential race this week: the three newcomers and Montana, plus Arizona, Michigan, Ohio, and Pennsylvania.

A Major Benchmark in Ending Prohibition

The successful adult-use and medical initiatives also expanded the geographic reach of legalization, with Maine and Massachusetts becoming the first Northeastern states to legalize adult use cannabis, and Arkansas and Florida becoming the first Southern to states to approve robust medical access laws.

Perhaps most importantly—especially from an international perspective—California has joined the ranks of states that have approved legalization. It’s hard to overstate California’s importance, not simply due to the sheer size of its population and economy, but also because of its role as a bellwether for national trends, and its outsized place in the global imagination of what the United States of America signifies. California’s vote also means that the entire Pacific Coast of the United States, including Alaska, has opted for legalization over prohibition.

And of course California shares an active border with Mexico—the single country most vilified by Trump during his campaign. California’s passage of legalization hastens the day when Mexico must decide its own interests regarding cannabis policy. Can Mexico continue to spend its money and put its citizens’ lives at risk to conduct eradication and interdiction operations meant to stop cannabis from entering the United States, when cannabis is being produced, sold, taxed, and consumed legally just across the border?

Substantial reform of U.S. federal law—which continues to ban cannabis, including medical uses—will still take considerable time. But thanks to the latest round of state ballot victories, the momentum for regulation as the alternative to prohibition continues to increase. Moreover, national opinion surveys find that 55 to 60 percent of Americans favor legalization, with support strongest among younger people. Previous cannabis reform moments have fizzled, notably after Ronald Reagan won the presidency in 1980 and worked with Congress to escalate the “war on drugs.” But the state-level changes now underway already far surpass the reforms of the late 1970s, and seem unlikely to fade away—even in the face of renewed hostility from the federal government.

The Potential for Federal Hostility

The names being floated for the Attorney General’s job within a Trump administration include the likes of Rudy Giuliani, former New York City Mayor, and Chris Christie, current Governor of New Jersey. Trump’s own views on state-level cannabis legalization have been inconsistent, but if he taps a Giuliani or Christie as the nation’s top law enforcement official, a more hostile federal reaction to state-level legalization than has been the case under President Obama would appear to be likely. Obama’s policy of qualified accommodation of the new state laws—laid out in an August 2013 memorandum by then-Deputy Attorney General James Cole—could be eroded or upended entirely.

But the Trump administration would do well to tread cautiously, given the practical, legal, and political constraints on federal power over the states in this arena. Flooding legalizing states with DEA agents to replace local law enforcement is simply not feasible, especially with the addition of a legalizing state the size of California. Moreover, the political optics of the federal government intervening to block implementation of laws approved by state voters would be divisive among conservatives and Republicans; conservatives tend not to favor legalization, but they also tend to oppose federal intervention in states that opt to legalize. Bringing legal action to freeze the states from implementing regulatory controls, or to make businesses think twice about conducting activity that the federal government considers a felony, could cripple the regulatory aspects of the states’ new laws. But that would bring a pyrrhic victory that undermines federal interests, since the states will still have struck down prohibition, and would be left without a regulatory system in place to oversee and control the newly legal activity.

At Home and Abroad, Space for Legal Cannabis is Wider than Ever

Of course, whether the Trump administration will be inclined to tread cautiously, in this and other matters, remains to be seen. Had the ballot initiatives in California, Maine, Massachusetts, and Nevada gone down to defeat on Election Day (as was the case in Arizona), the atmosphere might be different today. Colorado, Washington and the other early movers (Alaska, the District of Columbia, and Oregon) might have been left feeling isolated and exposed. But that’s not what happened: the momentum for reform is still growing, the number of political allies is rising, not falling, and national public opinion is more in favor of legalization with each passing year. Every president needs to pick his battles, and Trump’s team may conclude that intervening against state legalization would constitute a high risk, low reward proposition.

A related question is whether the Trump administration will seek to pressure other countries against taking steps similar to what is already on clear display within the United States, and even threaten political retaliation and sanctions against governments that move to do so. In 2013, Uruguay became the first country to enact national legalization of cannabis, and commercial sales are expected to begin soon. Canada is the first G7 country to announce that it will be ending cannabis prohibition, with legislation expected to be introduced in spring 2017. In ColombiaJamaica and Chile, implementation of new medical cannabis laws is getting underway. And in Mexico, a policy of crop eradication and interdiction to stop cannabis from entering the United States seems more absurd than ever.

Throughout the Americas and around the world, the message about cannabis policy reform to take from the U.S. elections is: “move ahead.” For those considering regulation as an alternative to the prohibition of cannabis, the United States is in no position to play the bully anymore. The political space for legalizing and regulating cannabis is opening wider than ever before.