Election Season—Marijuana Ballot Initiatives and Presidential Candidates’ Positions

November 6, 2015

By: John M. Tanner

During this six-part series on marijuana issues, articles have touched on the overview of marijuana’s legal status in the United States, as well as individual states such as Colorado, Washington and Washington, D.C.  Later articles addressed the ethical implications for in-house counsel’s personal use of marijuana, as well ethical issues surrounding advising clients involved in the industry.  Thereafter, employment issues were discussed.  In this final article, the focus is on the future, as eventually formed by state ballot initiatives and the presidential candidates’ public positions on marijuana.

State Ballot Initiatives

California was the first state to allow medical marijuana in 1996.  Each year since then, various states have turned to their electorate to determine whether marijuana will be decriminalized in some form or fashion, whether it be complete legalization (such as done by Colorado, Washington, Alaska and Oregon), or some lesser form of decriminalization.

This year, voters in Colorado (taxation), Ohio (legalization) and Washington (medical marijuana regulation) will face ballot initiatives related to marijuana.  Additionally, efforts are underway in the following states to have a ballot initiative in 2016 regarding marijuana policy:

Arizona (legalization and hemp), Arkansas (legalization and hemp), California (legalization), Florida (legalization), Georgia (legalization), Idaho (medical), Maine (legalization), Massachusetts (legalization), Michigan (legalization), Mississippi (legalization), Missouri (legalization), Montana (legalization), Nebraska (medical), Nevada (legalization), New Mexico (legalization), South Dakota (medical), and Wyoming (medical).

As discussed in previous articles, however, marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act (“CSA”), and various cases are pending in courts around the nation—including the United States Supreme Court—challenging the legality of state initiatives to decriminalize marijuana.  In December of 2014, Nebraska and Oklahoma sought leave to sue Colorado in the United States Supreme Court over Colorado’s recreational marijuana enactments.  In the would-be suit, Oklahoma and Nebraska seek a declaration that Colorado’s recreational marijuana amendment (Amendment 64) is preempted by the CSA under the Supremacy Clause of the U.S. Constitution.  The Court has yet to decide if it will accept the suit, but, if it does, the Justices will have an opportunity to shape national marijuana policy.

If the case is accepted, the conservative block of Justices will be faced with the thorny issue of weighing states’ rights under the 10th Amendment on the one hand, with liberal drug policy on the other.  A ruling that the CSA preempts roughly half the states’ laws decriminalizing marijuana in some form or fashion, would cause considerable practical ramifications, especially in states like Colorado that help fill the state coffers with tax revenue from the industry.  Similarly, the same practical ramifications would be faced if a new administration in 2017 reversed the Obama administration’s policy, and began aggressive marijuana enforcement.

Presidential Candidates’ Positions on Marijuana

In November of 2016, a new President will be elected, and the prospective candidates have already long been on the campaign trail.  The position on marijuana that the eventual winner may take could swing the pendulum from the status quo—as announced in the Cole Memos discussed in the first article—to a more aggressive law enforcement approach.

The following are the current frontrunners by party, and their positions on marijuana.


Trump—Medical marijuana legalization, no recreational marijuana

Carson—Has recognized a medical use and negative effects on developing brains

Rubio—Enforce Federal laws criminalizing marijuana

Bush—Opposes Florida’s medical marijuana ballot initiative

Cruz—Would lower minimum and mandatory sentencing for drugs


Clinton—Medical marijuana legalization, wait and see on recreational

Sanders—Medical marijuana legalization, study recreational use

With the candidates’ positions varying widely within the Republican Party, the future administrative priorities of a Republican President regarding the enforcement of federal marijuana laws are hard to predict.  Less difficult to predict are the priorities of another Democrat in the Oval Office.  Regardless of the political affiliation of the next Commander-in-Chief, if current trends continue regarding popular mores associated with marijuana, eventually a significant enough number of states will “go green,” and the CSA will be amended to reclassify marijuana.

With state ballot initiatives, pending court challenges, and a new President to take the oath of office in January of 2017, the landscape of the national policy regarding marijuana will change.  As in-house counsel, it will be your obligation to stay abreast of these changes in the law, so as to better navigate your company through the changing tides of national marijuana policy.     

This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.

Copyright © 2015 Fairfield and Woods, P.C.  ALL RIGHTS RESERVED.