TAKING THE INITIATIVE: MARIJUANA LAW REFORM AND DIRECT DEMOCRACY.

• Author: Todd, Tamar

Introduction 554 I. Circumventing Elected Officials via Direct Democracy 559 II. Marijuana Law Reform Through Direct Democracy 561 III. The Marijuana-Driven Direct Democracy Backlash 566 A. Case Study: Nebraska 569 B. Case Study: South Dakota 578 C. Case Study: Mississippi 585 Conclusion 591 INTRODUCTION

The last two general election cycles have resulted in a national discourse about the meaning, and value, of democracy in the United States. Foundational questions about democracy have surfaced in the public consciousness recently: Is our right to vote protected? Do the votes of citizens of small states and large states have equal value? Are the mechanics of our election processes functional? Can the results of a validly held election be undone? Do the American people believe that our elections are fair and that their votes matter?

The November 2020 general election generated a storm of controversy and debate that focused primarily on the outcome of the 2020 Presidential Election and the effort to undermine its results levied by former President Trump and his allies. This has, in turn, led to efforts by many Republican state legislatures to limit access to voting in their states, (1) raising serious concerns about the impact of these efforts on democracy. While the spotlight is on national elected offices, including control of the presidency and Congress, another threat to democracy has emerged, quietly but no less perniciously. State legislatures and state courts in disagreement with laws adopted directly by the voters are aggressively moving to reverse those results, scuttling progressive reforms but even more fundamentally, undermining confidence in election outcomes and removing a lever of direct democracy that has existed for decades in many jurisdictions. In short, the successful use of the ballot initiative process to advance progressive causes has resulted in a curtailment of the democratic process. And there is one issue that has particularly advanced this troubling trend: hostility among conservative elected officials and judges to popular marijuana law reform.

More than any other issue, voters have transformed marijuana law through the initiative process. As early as the 1970s, municipal voters adopted ordinances to direct law enforcement to treat marijuana as its lowest law enforcement priority. In 1996, California voters removed state law penalties for medical marijuana patients to use and produce marijuana based on the recommendation of their physician. (2) Voters followed suit in a number of other states. (3) Eventually, starting in 2012, voters started removing state penalties for all adults and for the commercial production and distribution of marijuana. (4) Following these reforms, popular support for marijuana legalization continued to increase nationwide, (5) which politically and practically undermined the continued federal prohibition of marijuana and paved the way for other jurisdictions around the world to reform their laws. (6) To those who believe that the prohibition of marijuana is a failed policy, borne of a drug war rooted in racism and resulting in the unnecessary arrest and sanction of hundreds of thousands of people, this story of direct democracy--first at the municipal level and then at the state level--is a success story, and perhaps a model for other law reforms.

But not everyone was celebrating. Opposition to legal marijuana has become the minority opinion in the United States, (7) but it is a fierce opposition, and it finds a home in conservative legislatures and courts. This entrenched opposition has not succeeded at persuading voters of the policy merits of marijuana prohibition. Efforts to defeat marijuana law reforms based on policy arguments have generally failed. (8) Opponents of marijuana reforms have made dire predictions about the potential consequences of legalization, from a marijuana-related "drug use epidemic," (9) to increased crime, (10) to marijuana-induced harm and death. (11) These dire forecasts have not materialized. (12) In virtually every jurisdiction that has reformed its marijuana laws, those reforms have resulted in increased public acceptance of marijuana regulation and taxation, leading persons who once opposed or seriously questioned such change to rethink their positions and find common ground with reformers. (13) Legalization has boosted public support because the reforms, while perhaps not without room for improvement, have resulted in a more effective allocation of public resources, access to medicine by patients in need, a reduction in racially-disproportionate policing, and the protection of personal liberty and autonomy.

However, despite these overall positive policy results, many elected officials and lawmakers, especially in the most conservative states, have not given up. In light of the failure to persuade the voters in these states on the merits, opponents have turned to restricting voters' access to the ballot to make it more difficult, if not impossible, to directly enact reforms. The consequences of this attack on direct democracy are clear and immediate for the future of marijuana reform in these jurisdictions but also threatening to the enterprise of all voter-initiated law reform.

This Essay begins with a brief history of the role direct democracy has played in the evolution of marijuana law reform. This was a role borne out of necessity, because popular support for reform has always far outpaced the will of elected officials. The Essay then provides case studies of this phenomenon from Nebraska, South Dakota, and Mississippi. During the 2020 election cycle, state supreme courts in each of these states either removed a popular marijuana-related measure from the ballot or overturned the results of a validly held election. They did so, as this Essay suggests, in a transparent effort to halt, or at least slow, the pace of marijuana law reform in their respective states.

The Essay concludes with a warning that the implications and consequences of these judicial interventions are far-reaching. Certainly, limiting citizens' ability to place legislation directly on the ballot will slow the adoption of new marijuana laws in these states by limiting voters' ability to bypass their elected lawmakers in areas of policy where they disagree. But the implications extend beyond marijuana. The efforts to prevent marijuana law reform are changing the playing field for direct democracy altogether, making it more difficult for voters to reach the ballot on any issue. By undoing election results and invalidating legislation supported and enacted by voters, these state supreme court decisions threaten to further undermine confidence in democracy and our elections process altogether, at a time when voter confidence is already at an all-time low.

1. CIRCUMVENTING ELECTED OFFICIALS VIA DIRECT DEMOCRACY

   Every election cycle, voters in many states across the country, in addition to voting for their representation in government, participate directly in policymaking by voting whether to adopt or reject constitutional amendments, state legislation, or municipal ordinances on a wide variety of issues. Ballot initiatives allow voters to bypass elected representatives to enact laws directly. (14) In fact, many successful initiatives are the product of disagreement between voters and state lawmakers over how to address a particular policy issue. (15)

   Direct democracy is a central component of lawmaking in many states. Twenty-four states have had at least one statewide initiative pass between 1904 and 2018. (16) Both progressive (17) and conservative (18) reform movements have used ballot initiatives since the later 1970s to advance their agendas, starting with Proposition 13 in California, which severely capped property taxes.

   The ballot initiative process holds, for some, a romantic notion of a populist form of pure democracy. Ordinary people whose needs are not being acted on by those in power can come together with an idea for a law, collect signatures from other voters to place that idea on the ballot, and change the law themselves--regardless of whether their elected lawmakers agree. (19) It can and has been used as a means to build movements and civil engagement to develop the infrastructure necessary to develop political and organizing power. (20)

   Others believe the initiative process suffers from many of the same factors that corrupt legislatures in terms of the power and influence of money and lobbying. Private interests fund costly ballot initiative campaigns, with targeted, well-funded, political advertising. (21) Private interests often draft the legislation behind closed doors, without the benefit of a deliberative process. (22)

   Either way, voters have a long history of participating in the initiative process (23) to embrace or reject policy and directly decide how our constitutions and laws should be crafted. And they have repeatedly done so in ways that significantly part course with their representative government when it disagrees or fails to act on in an area that voters care about. (24)

2. MARIJUANA LAW REFORM THROUGH DIRECT DEMOCRACY

   There is no other area of law that has been as dramatically shaped and recreated by the ballot initiative process as marijuana. (25) With marijuana, to put it simply, the voters and their elected officials disagree. The last several decades have seen a seismic shift in attitudes towards marijuana by voters, (26) which was not, until very recently, matched by a shift in attitude by their elected lawmakers. (27) This mismatch in opinion resulted in voters employing the ballot initiative process to reject the existing prohibitions on marijuana in favor of trying something new. (28)

   Dramatic departures from a prohibitionist approach to marijuana policy are not unique to the United States, but the use of the ballot initiative process to effectuate the change is. A number of jurisdictions around the...