Polling numbers vary, but the most recent results indicate that voters in the four states with recreational legalization on the ballot—Arizona, New Jersey, Montana and South Dakota—will vote in favor of legalization. A shift in public perception and potential tax revenue are two key reasons the measures are likely to succeed.
ARIZONA
In Arizona, Proposition 207 would legalize the sale and use of adult-use cannabis for those 21 and over. Possession would be limited to 5 ounces of cannabis, 1 ounce of THC concentrate and six plants per household. The Department of Health Services would regulate commercial sales. A 16% excise tax would be imposed on sales. The initiative would also allow individuals with certain cannabis-related crimes on their records to apply for expungement.
Two polls conducted in September came back with differing results, but demonstrated that the majority of voters are in favor of the measure. A poll conducted by Smart and Safe Arizona—the group behind the initiative—showed 57% in support and 38% in opposition. A separate poll conducted by Monmouth University showed 51% of respondents are in favor of the measure, with 41% in opposition. The remainder of voters are either undecided or not planning to vote on the measure.
MONTANA
In Montana, two initiatives are on the ballot. Initiative I-190 would legalize the sale and use of adult-use cannabis for adults who are 21 or older. Possession would be limited to 1 ounce of marijuana, provided that no more than 8 grams of that may be marijuana concentrate. In addition, residents would be allowed to have up to four cannabis plants and four cannabis seedlings per residence. The Department of Revenue would regulate commercial sales. A 20% tax would be imposed on sales. The initiative would also allow individuals serving prison sentences for cannabis-related crimes that are decriminalized under the new law to request expungement or resentencing. Initiative CI-118 would allow for the state to set a minimum age of 21 for the purchase of adult-use cannabis products. According to a Montana State University poll conducted between Sept. 15 and Oct. 2, 2020, 49% of respondents were in favor of the measure, with 39% opposing.
NEW JERSEY
In New Jersey, Public Measure No. 1 would legalize the sale and consumption of adult-use cannabis for those 21 and older. If the measure passes, limitations on the amount that may be possessed would be determined by regulators at a later date. Commercial sales would be regulated by the Cannabis Regulatory Commission. The former 6.625% statewide sales tax for medical cannabis would be imposed on adult-use sales (medical taxes were lowered to 4% on July 1 and will be further reduced until medical sales will not be taxed in July 2022). Localities will have the option to add on another 2% tax. The most recent poll results from law firm Brach Eichler LLC, which were released in late October, showed 65% of respondents in favor of the measure, with 29% opposing it.
SOUTH DAKOTA
In South Dakota, Constitutional Amendment A would allow for adult-use use and possession. Individuals would be allowed to possess or distribute up to 1 ounce of marijuana and commercial sales would be regulated by the State Department of Revenue. Individuals who live in an area without any cannabis retailers would be allowed to keep up to three plants, although not more than six plants would be allowed in any one residence. A 15% tax would apply to sales.
Although poll results commissioned by opponents of the measure and released in September indicated that 60% of respondents were in favor of the measure, recent poll results released in late October by Mason-Dixon Polling & Strategy show a closer race, with 51% in favor of the measure, 44 % opposing and 5% undecided. The state also has a medical cannabis measure on the ballot, and poll results show a higher level of support for that measure.
Currently, adult-use cannabis is legal in 11 states plus the District of Columbia. After the 2020 election, the likelihood of adding to this number appears almost certain. But, as more states move to legalize adult use, reaching a critical mass of states where recreational use is legal is expected to usher in changes at the federal level, as well.
Melissa T. Sanders is an attorney at Fox Rothschild LLP and can be reached at [email protected].
