The high road to marijuana legalization in California

When news broke on election night that Colorado was the first state to legalize marijuana, patrons at the trendy Casselman’s Bar & Venue in Denver erupted in cheers, then hugged each other and cried. Organizers and friends of the state’s Campaign to Regulate Marijuana Like Alcohol thanked everyone—elderly black ladies, young hipsters, business execs—and there were far more people in suits than in tie-dye that night. And nary a hint of ganja smoke inside the hip establishment.

A few hours later in Seattle’s Hotel Ändra, travel writer Rick Steves joined business leaders and members of the American Civil Liberties Union, along with Seattle City Attorney Pete Holmes, in thanking volunteers for making cannabis-legalization history in Washington as well.

But cheers for Colorado and Washington that evening were accompanied by a bit of jealousy here in California, where voters narrowly defeated this state’s pot-legalization measure, Proposition 19, in 2010.

“A lot of people have said to me, ’How come we couldn’t do that last election?’” remarked Stephen Downing, a retired Los Angeles Police Department deputy chief and a member of Law Enforcement Against Prohibition.

But Colorado and Washington’s victories sparked more than just envy in the Golden State. Amanda Reiman, with the Drug Policy Alliance, says a new legalization initiative is now on the tip of everyone’s tongue in the California reform community.

“This was something that we were talking about before the election,” she said. “The results of the election have just ramped up those conversations, absolutely.”

Today, it’s not a question of if California will legalize marijuana for adults over the age of 21. Now, people just ask when.

“A lot of people in California are starting to talk about a future campaign—certainly the debate about 2014 vs. 2016, all that’s being engaged,” said Bill Zimmerman, who helped run California’s successful Proposition 215 medical-marijuana initiative in 1996.

The National Organization for the Reform of Marijuana Laws, for instance, has planned a conference on legalization in California later this month, January 26 and 27, in San Francisco. All the big players in the marijuana world—NORML, the Marijuana Policy Project, the Drug Policy Alliance, LEAP, Americans for Safe Access, the Emerald Growers Association, the Oaksterdam community in Oakland—have been holding both public and private talks as well.

And a new California legalization initiative may not be the only one in the nation. Recent polls show that Americans are increasingly comfortable with the idea of bringing pot out of the closet. A survey released last month from the respected polling organization Quinnipiac University showed that Americans now favor marijuana legalization 51 percent to 44 percent. It’s a historic shift.

Americans also believe that states, not the federal government, should decide whether pot is legal. A Gallup poll released on December 10, 2012, revealed that 64 percent of Americans want to leave marijuana policy up to the states.

“I would not be surprised to see [cannabis legalization] on the ballot in a number of places in 2014 and 2016,” said Beau Kilmer, co-director of the Drug Policy Research Center at the nonpartisan think tank the RAND Corporation.

But replicating Colorado and Washington’s victories isn’t simply a matter of copying and pasting initiatives, reform experts say. The victories in both states came from a decade of hard work, resulting not only in strong political coalitions and palatable initiative language, but also campaigns run by professional operatives armed with lots of cash.

Experts also say California is a different beast entirely. Moreover, evidence has emerged that drug warriors are already lobbying the Obama administration to overturn election outcomes in Colorado and Washington before states like California can legalize pot, too.

The Colorado victory may have blindsided the federal government, but the movement toward marijuana legalization had been building for a long time.

The state’s Amendment 64 really began with the Safer Alternative for Enjoyable Recreation education campaign, which relentlessly hammered home the message that marijuana is safer than alcohol. Then in 2006, SAFER ran a statewide pot-legalization initiative. Although it failed, the defeat taught the group some key lessons, including the importance of grassroots campaigning and building a solid political infrastructure.

Meanwhile, in Denver, elected lawmakers had become leaders of the national medical-marijuana movement. Coloradans legalized medical weed at the ballot box in 2000, but the medical-pot industry’s rapid and unchecked growth sparked intense criticism. The Colorado Legislature responded by passing seed-to-sale regulations for the state in 2010.

The new rules are administered by the Colorado Department of Revenue and today, gun- and badge-carrying officers from the Medical Marijuana Enforcement Division regulate the industry. Pot cops monitor grow rooms and club transactions via remote cameras linked to the Internet, while ensuring the collection of millions in tax revenue for the state.

Against this backdrop, in which the electorate not only had become aware that pot is safer than booze, but also realized that the state had a functioning system for controlling medical cannabis, marijuana-law reformers decided to launch another initiative for 2012. The Marijuana Policy Project, a nationwide effort to decriminalize pot and keep users out of prison, provided 90 percent of the funding for the Amendment 64 campaign, according to Mason Tvert, its co-director. The Drug Policy Alliance, another nationwide drug reform group, donated the other 10 percent.

The highly professional campaign in Colorado conducted polling, drafted initiative language and paid signature gatherers to get the necessary valid signatures to put Amendment 64 on the ballot. The campaign also worked closely with the Students for Sensible Drug Policy, LEAP, the ACLU of Colorado, and the National Association for the Advancement of Colored People of Colorado to mobilize thousands of volunteers to go door to door and staff phone banks.

Like those of Prop. 19 in California, opponents of Amendment 64 spent less than half a million dollars, so the campaign was the reformers’ to lose. Amendment 64’s ads featured and targeted a key swing group: young moms. The Regulate Marijuana Like Alcohol campaign didn’t extol the virtues of pot: Instead, it talked about controlling the drug to keep it away from kids and promised that the tax revenue from pot regulation would benefit schools.

“I think folks in Colorado and Washington learned from California’s experience,” said Kilmer of RAND.

Farther west, Washington—a liberal state with a long history of supporting medical cannabis—also had a group of serious professionals who slam-dunked pot legalization in a state that was simply waiting for it.

Washingtonians legalized medical pot in 1998, two years after Californians, and ever since have struggled with how to regulate the drug—not unlike what has happened in the Golden State. Illegal dispensaries have thrived in cities like Seattle, but they’ve also been subject to raids by federal, state and local authorities.

Fed up with that chaos, pillars of the Washington community came together to run the Initiative 502 campaign, known as New Approach Washington. The campaign sponsors included Washington ACLU drug-policy director Alison Holcomb, Seattle City Attorney Holmes, former U.S. Attorney John McKay, celebrity travel writer Rick Steves, Rep. Mary Lou Dickerson, two former presidents of the Washington State Bar, and a former professor at the University of Washington. In short, this was no coalition of hippie dreamers.

Much like Colorado, the Washington group polled extensively and came up with a moderate form of legalization that lifted penalties for adults possessing personal amounts, but banned home growing, created a tough new drugged-driving standard, and taxed the industry heavily to fund schools and research.

New Approach Washington spent about $5.7 million on the campaign, including about $2 million on TV advertisements that put tough-talking law-enforcement officials against prohibition front and center.

Initiative 502 passed, 55 percent to 45 percent, with 1.7 million votes for and 1.4 million votes against. Colorado’s Amendment 64 won by the same margin, 55 percent to 45 percent, with 1.3 million votes cast for it and 1 million votes cast against.

But California is not Washington or Colorado. We’re bigger and more diverse. The pot-legalization movement here also has failed over the years to unite behind a statewide measure. And, while drug-law reformers foresee a domino effect from pot legalization in two states, a historic backlash is possible as well.

One major hurdle for marijuana legalization in California is the diversity of opinion among residents.

“In Washington and Colorado, you can win over mainstream opinion and you’re then likely to win an election,” said Zimmerman of Prop. 215 fame. “Here in California, you’ve got to win the approval of a number of different communities, many of which often act independently of the mainstream: Latinos, African-Americans, youth, senior citizens. It’s a much more complex task.”

It will also be more costly: more than $1 million to gather the half-million valid signatures needed to put an initiative on the California ballot, experts say. Campaign marketing and operations could cost anywhere from $5 million to $15 million. But Reiman said pockets this deep do exist in the reform community. “A lot of people have $5 [million] to $10 million dollars laying around. It’s just a question of whether the people that have that laying around are going to find [marijuana legalization] a worthy cause.”

Funders will want to see an initiative that’s winnable at the polls yet acceptable to the fractious gaggle of reform groups in California. And that could be tough. During the Prop. 19 race, Oaksterdam organizers in Oakland not only had to fight the California Police Chiefs Association and the beer industry, but also the entrenched medical- and illegal-marijuana interests in Southern and Northern California.

Sharp divisiveness in the California cannabis community combined with tepid mainstream support in the electorate has also scared big donors over the years. And without the needed cash, legalization efforts have stalled. No fewer than five groups tried to get a pot-law reform initiative on the California ballot in 2012. All failed.

But Zimmerman and Reiman think there is enough objective data on California voter preferences to enable reform groups to agree on ballot language this time around. Even if the most extreme examples of “stoners against legalization” don’t agree with new drugged-driving laws or caps on home growing, the extremists “pale in comparison to people like moms in their 30s in Southern California” who voted against Prop. 19, Reiman noted.

Indeed, the gender gap over pot legalization remains strong—and that’s true throughout the nation. According to the Quinnipiac poll, American men support legalization 59 percent to 36 percent, but women oppose it 52 percent to 44 percent.

The age gap remains persistent as well. Nationwide, residents 65 and older strongly oppose legalization: 56 percent to 35 percent, according to the Quinnipiac poll. By contrast, younger voters adamantly support it. Those aged 18 to 29 want pot legalized, 67 percent to 29 percent, and those aged 30 to 44 support it, 58 percent to 39 percent. In the 45-64 age group, 48 percent support marijuana legalization compared to 47 percent who oppose it. “It seems likely,” said Peter A. Brown, assistant director of the Quinnipiac University Polling Institute, “that given the better-than-2-1 majority among younger voters, legalization is just a matter of time.”

For many pot-legalization reformers, however, that time is not 2014. The California electorate is different in nonpresidential years, Zimmerman noted. Republicans tend to come out in force in the off years, while Democrats stay home. Historically, off-year elections have given us Republican governors Ronald Reagan, Pete Wilson, George Deukmejian and Arnold Schwarzenegger. And a whopping 69 percent of California Republicans said no to pot legalization in a May 2012 Los Angeles Times poll.

“There are going to be people tempted by 2014; I think that would be a disaster,” Zimmerman said. “It could be another rebuke, which would make it much more difficult to pass an initiative in 2016.”

But waiting for the youth vote and Democrats in 2016 isn’t a sure thing either, particularly when California’s top Democratic leaders remain opposed to pot legalization, including Sens. Dianne Feinstein and Barbara Boxer and Gov. Jerry Brown.

Part of the reason Californians haven’t moved further on legalization may be due to the turmoil surrounding medical marijuana in the state. Brown went on CNN after the election to say the Obama administration should respect states’ rights with regard to pot laws, but he also said California’s system has seen “abuses.”

“We’ve got a medical-marijuana dispensary situation which is a mess,” said Zimmerman. “If we can’t clean that up and show the public that we’re capable in California of running marijuana distribution with medical patients, I’m not sure that they’re going to allow us to create a marijuana-distribution system for recreational users.”

The California Supreme Court also has yet to rule on the legality of dispensaries, or a city’s right to ban them. San Francisco Assemblyman Tom Ammiano will reintroduce a medical-marijuana-industry regulation bill next year, but Sacramento legislators have worried about touching what they view as an electric third rail in state politics.

There’s also the possibility that pot already might be legal enough for many Californians. When he was in office, Schwarzenegger made simple possession an infraction. Since then, juvenile arrests for pot have plummeted to their lowest levels since record keeping began in the 1950s. In addition, most adult residents can get a medical recommendation for weed, and dispensaries and delivery services abound. According to RAND, the most common price Americans pay for pot is zero dollars. The reason? People typically receive it as a gift from friends.

History is replete with political tipping points—moments in time when large numbers of people change their minds about a controversial issue. In addition to marijuana legalization, same-sex marriage appears to be at a political tipping point, too. In 2008, a Quinnipiac poll showed that Americans opposed gay marriage 55 percent to 36 percent. But in just four years, the country’s mood shifted dramatically; now, 48 percent of Americans support same-sex marriage, compared to 46 percent opposed. That’s a 17-point swing.

“When these social issues begin to change and the public begins to view them a little different, the numbers can tumble pretty radically,” said Zimmerman.

Some pundits have credited President Barack Obama’s decision earlier this year to come out in support of same-sex marriage for helping turn the tide on that issue. Conversely, if his administration embarks on a federal campaign to punish Washington and Colorado for legalizing pot, it could have a chilling effect on reform efforts.

Yes, Obama told ABC News last month that busting potheads in Colorado and Washington was not an effective use of federal resources, but he didn’t say anything about busting marijuana businesses. Senate Judiciary Committee chairman Sen. Patrick Leahy of Vermont has called for hearings in 2013 on the conflict between state and federal law. Meanwhile, Attorney General Eric Holder has said recently the Department of Justice will announce its policy “soon.”

And while the federal government cannot stop states from repealing drug laws, it could sue to try to block the implementation of regulations in Colorado and Washington. The feds could also attempt to withhold transportation funds, or other retaliatory moves.

Holder may have single-handedly defeated Prop. 19 when he flew into Los Angeles for a pre-election press conference and blasted the initiative. Federal tolerance of state legalization also could threaten U.S. treaties with Latin American countries that fight our drug war, said Isaac Campos, a marijuana-prohibition historian at the University of Cincinnati.

Former Drug Enforcement Administration head Peter Bensinger is trying to mobilize retired DEA agents and narcotics officers to lobby the Obama administration for a crackdown, according to correspondence. In one email dated November 15, 2012, Bensinger urged the Association of Former Federal Narcotics Agents to take action: “We want to make it easy for all of you to help us put pressure on the Administration to step in and stop Colorado and Washington from implementing the legalization of marijuana,” he wrote. “We need to push back.”

Drug warriors also have a strong economic incentive to fight legalization. “The money [from the federal war on drugs] is just too big for police departments through grants and asset seizures,” explained Downing of Law Enforcement Against Prohibition. “The state prison population is going down for the first time ever, but the federal prison population is increasing. All of that has to do with money.”

And the backlash from drug warriors may be working. On December 7, The New York Times reported that the Obama Justice Department is weighing options as to how to respond to Colorado and Washington and whether to launch a crackdown or file lawsuits in those states.

At the same time, drug-reform advocates are girding for a long, tough battle. “I think it’s vital for anybody who wants to keep the momentum going to recognize that there’s going to be blowback in a serious way,” explained Campos. “There’s an enormous amount of practical, material interests wrapped up in the drug war. Those people must be putting a lot of pressure on Obama right now. The prison-industrial complex is superdependent on the war on drugs. We’re at a really crucial moment.”

Legalization in Washington and Colorado marks not only the beginning of the end, many say, but also the beginning of the most difficult part.

“We are looking up a huge mountain right now, and we’re all taking deep breaths and looking around and gearing up for a really long but hopefully successful fight,” Reiman said. “I think Californians are ready.”