Voters In Colorado And Washington Set Up Showdown With The Feds Over Marijuana Legalization

Unparalleled victories at the ballot box in the 2012 election have elevated the debate over marijuana policy in ways that were unimaginable only a decade ago, setting up an inevitable showdown over authority between states and a federal government intent on whether “weed” should be treated like alcohol or a more dangerous substance.

The looming conflict between the sovereignty of individual states and the reach of Washington when it comes to drug laws has attracted unusual compatriots in the fight to legalize some forms of marijuana as the mood of the nation takes a dramatic turn in favor of less onerous regulation. This coordination combined with a shift in public opinion has led to the most sweeping state-level rebuke of federal restrictions on a particular substance since the Prohibition era.

After decades of occupying the so-called “fringes” of public and political discourse, support for reform in state and federal policies on marijuana have fundamentally entered the mainstream.

In two historic votes, citizens in Colorado and Washington State approved separate ballot referendums that fully legalized the “recreational” production, use and distribution of marijuana within their borders. It marks the first successful statewide vote in American history to legalize any form of cannabis outside of medical purposes.

Colorado voters have approved a referendum that supports the legalization of marijuana on a recreational basis.

Amendment 64 in Colorado will amend the state constitution to legalize and regulate the production, possession, and distribution of marijuana for persons age 21 and older.

“The voters have spoken and we have to respect their will,” Colorado Governor John Hickenlooper said in a written statement released by his office. “This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug so don’t break out the Cheetos or gold fish too quickly.” 

Part of the reason why voters in both states overwhelmingly supported each measure is a simple case of economics; besides the issue of individual rights that advocates of legalization highlighted during the campaign, the question of using legalized marijuana as a means of raising revenue in a challenging economy proved alluring to voters. The Washington measure specifically included language authorize the regulation and taxation of marijuana sales and production, going so far as to detail a particular rate at which the substance would be taxed.Colorado voters have approved a referendum that supports the legalization of marijuana on a recreational basis.

Washington State voters on Tuesday cast their ballots in support of an unorthodox way of raising tax revenue: marijuana legalization. The measure, Initiative 502, will legalize and regulate the production, possession and distribution of cannabis for persons age 21 and older.

The Washington referendum called for a 25% tax rate imposed on the product three times: when the grower sells it to the processor, when the processor sells it to the retailer, and when the retailer sells it to the customer. It’s not clear exactly how much tax revenue legalization would bring in. Estimates for the Washington measure run as high as $500 million – a figure analysts say is overstated.

How the legalization movement managed to prevail in election outcomes that were unimaginable only a few years ago is a testament to the changing dynamics of American politics. When so much of the national discourse is based on pitting two opposite sides against one another, the campaigns on behalf of the legalization amendments in Colorado and Washington were built around common positions held by what the establishment might call the “extremes” of both the liberal and conservative grasroots.

Taking advantage of the increasing liberalization of social opinions among a majority of Americans — especially with young adults and in Western states — as well as the rise of the “Tea Party” movement in the Republican Party that espouses fewer government regulations, the legalization effort managed to combine the most effective forces among liberals and conservatives to achieve a universally accepted goal.

Opponents of the measures — the “establishment” — were taken aback by the level of grassroots support and the anger building among both sides of the political spectrum over the status quo as represented by a ban on marijuana.

Voters in Colorado and Washington easily passed ballot initiatives — 55% to 45% in each state — to legalize the possession and sale of marijuana.

So how did this happen? A third legalization measure stumbled badly in Oregon despite the state’s progressive leanings, with some supporters pointing to a disorganized and underfunded campaign.

What transpired in Colorado and Washington were disciplined efforts that forged alliances between liberals and tea party conservatives, often using public health arguments to advance their cause.

Proponents and analysts said both states benefited from existing medical marijuana statutes, money from national liberalization supporters and a sometimes disorganized opposition.

Tuesday’s vote on the measure in Colorado amounted to a popular revolt against the establishment. Despite opposition from the governor, attorney general and Denver’s mayor, 1.3 million Coloradans voted for Amendment 64 — which as of last count had received 50,000 more votes of approval than President Obama, who won the state by 5 percentage points.

“I think that the opponents of the amendment were taken by surprise by the degree of support and did not organize themselves until very late in the game,” said Peter Hanson, assistant professor of political science at the University of Denver. Hanson added that the presidential campaign probably boosted the pro-marijuana youth vote and directed conservatives’ attention elsewhere. 

The blueprint used to such great success in Colorado and Washington may soon be tried elsewhere. While two states were setting a historic precedent in drug legalization, others were possibly setting the stage for future measures in a similar vein. Massachusetts joined the growing list of states that have passed laws or initiatives legalize marijuana for medical use, with voters overwhelmingly approving a measure on Tuesday.

But before more votes like those taken in Colorado and Washington are cast across the United States, the legal status of the newly minted laws will have to be settled. With federal law trumping state law on issues like drug criminalization, the Justice Department still holds ultimate authority over whether the outcome of Tuesday’s historic votes will be preserved.

Most government officials in Colorado opposed the marijuana amendments, and they are now requesting the federal government to intervene and settle questions of legitimacy. Washington’s leading prosecutor, however, has already dropped all misdemeanor charges for marijuana possession in light of Tuesday’s vote.

Neither law is scheduled to take effect before the beginning of 2013, leaving Attorney General Eric Holder and Justice Department officials plenty of time to decide whether federal authority will be used to quash the will of the people in Colorado and Washington.

Should marijuana be treated like alcohol? Or should it remain in the same legal category as heroin and the most dangerous drugs? Votes this week by Colorado and Washington to allow adult marijuana possession have prompted what could be a turning point in the nation’s conflicted and confusing war on drugs.

Colorado’s governor and attorney general spoke by phone Friday with U.S. Attorney General Eric Holder, with no signal whether the U.S. Justice Department would sue to block the marijuana measures. Both states are holding off on plans to regulate and tax the drug while waiting to see whether the Justice Department would assert federal authority over drug law.

Meanwhile, prosecutors in Washington’s largest counties dropped all pending misdemeanor cases of marijuana possession Friday in response to that state’s vote to legalize the drug.

The Obama administration has largely turned a blind eye to the 17 states that currently flout federal drug law by allowing people with certain medical conditions to use pot, something that is banned under federal law.

A spokesman for Colorado Gov. John Hickenlooper said during Friday’s talks, state officials asked Holder for the federal government’s response to the marijuana vote but didn’t get one.

The Colorado officials “emphasized the need for the federal government to articulate what its position will be. … Everyone shared a sense of urgency and agreed to continue talking about the issue,” spokesman Eric Brown wrote in an email. No date for further talks was announced, he said. 

Legalization advocates have expressed some optimism that a newly reelected President Obama will be more amenable to the rights of states to challenge federal drug laws given that most of the voters that helped to pass the laws in Colorado and Washington also support the president’s election bid.

But legal experts say this view is naive and flawed. The Obama administration has a history of verbal intimidation of states where legalization laws have been floated in the past four years, asserting federal authority to the cannabis status quo. Even though there has been no substantive public reaction to the two Western initiatives either before or after Election Day, most expect the the Justice Department will spring into action if any state begins actual implementation of the law and take steps to “shut it down.”

This year, in contrast, federal anti-drug authorities have repeatedly declined to discuss decriminalization proposals in three states — including a measure in Oregon that would end the prohibition of marijuana there. (That initiative trailed in recent polls.) The response routinely delivered by U.S. Department of Justice spokeswoman Allison Price, including in an e-mail to NBC News: “We are not going to speculate on the outcome of the various ballot initiatives in each of the states.”

“That, to me, is significant because they didn’t just copy and paste what they did and said in 2010. We feel pretty good about that,” said Alison Holcomb, campaign director for Washington’s Initiative 502, which seeks to regulate and tax marijuana production and distribution in that state. According to a poll released Thursday, Initiative 502 had the support of 55 percent of Washington voters.

But Dr. Kevin A. Sabet, former senior drug policy advisor to the Obama Administration and director of the Drug Policy Institute at the University of Florida, predicts a far different law-enforcement reality on the ground in Washington — as well as in Colorado, where Amendment 64 would allow the state to regulate marijuana as it does alcohol.

“Once these states actually try to implement these laws, we will see an effort by the feds to shut it down,” Sabet said.

Sabet’s vision of post-election pot realities in Washington and Colorado — where Amendment 64 has majority support, according to a recent poll — seems to suggest a possible weed war between the feds and the states.

“We can only guess now what exactly that would look like,” Sabet said. “But the recent U.S. Attorney actions against medical marijuana portends an aggressive effort to stop state-sponsored growing and selling at the outset.” (That includes, he said, letters sent by federal prosecutors last January to medical marijuana dispensaries in Colorado operating within 1,000 feet of schools, ordering those businesses to halt sales.) 

Coloring the possible federal response to legalization laws that seek to give marijuana the same legal status as alcohol is the Obama administration’s short history as leading the most aggressive crackdown on medical marijuana — let alone fully legalized pot — in American history.

Nearly one million Americans have been placed at risk either medically or legally from the Obama Justice Department’s aggressive sting operations that have breached the sovereignty of a number of states where laws regulating marijuana for medicinal purposes are in place.

Activists for legalization and medical marijuana say that Obama has “gone from first to worst” in terms of presidential marijuana policy, referencing the fact that then-candidate Obama infamously reached out to pro-pot advocates with promises of federal leniency if elected.

Back when he was running for president in 2008, Barack Obama insisted that medical marijuana was an issue best left to state and local governments. “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue,” he vowed, promising an end to the Bush administration’s high-profile raids on providers of medical pot, which is legal in 16 states and the District of Columbia.

But over the past year, the Obama administration has quietly unleashed a multiagency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush. The feds are busting growers who operate in full compliance with state laws, vowing to seize the property of anyone who dares to even rent to legal pot dispensaries, and threatening to imprison state employees responsible for regulating medical marijuana. With more than 100 raids on pot dispensaries during his first three years, Obama is now on pace to exceed Bush’s record for medical-marijuana busts. “There’s no question that Obama’s the worst president on medical marijuana,” says Rob Kampia, executive director of the Marijuana Policy Project. “He’s gone from first to worst.

The federal crackdown imperils the medical care of the estimated 730,000 patients nationwide – many of them seriously ill or dying – who rely on state-sanctioned marijuana recommended by their doctors. In addition, drug experts warn, the White House’s war on law-abiding providers of medical marijuana will only drum up business for real criminals. “The administration is going after legal dispensaries and state and local authorities in ways that are going to push this stuff back underground again,” says Ethan Nadelmann, director of the Drug Policy Alliance. Gov. Lincoln Chafee of Rhode Island, a former Republican senator who has urged the DEA to legalize medical marijuana, pulls no punches in describing the state of affairs produced by Obama’s efforts to circumvent state law: “Utter chaos.”

President Obama’s regressive shift on pot policy has occurred at a time when Americans have also made a notable shift on how they view marijuana — a shift in the other direction. A Gallup poll conducted last year found that a record 50 percent of Americans say that marijuana should be legal, a twenty-point swing from a decade ago.

With public support clearly having swung behind legalization and state voters now taking it into their own hands to push legalization, many see the burgeoning scrap over marijuana as a repeat of Prohibition-era fights over alcohol. The nationwide ban on booze began to crumble as more and more states passed individual laws to loosen regulations on alcohol within their own borders, defying federal authority.