Jacob Fischler

(States Newsroom) Midterm voters in five states will determine if they should join the growing list of places where recreational marijuana use is allowed, even as any use of the drug is still illegal under federal law.

Referendums to legalize recreational use of marijuana are on Nov. 8 ballots in Arkansas, Maryland, Missouri, South Dakota and North Dakota. If approved, those states would join 19 other states and the District of Columbia in allowing use. The current jurisdictions account for about 44% of the United States population.

Though some Republican-trending states such as Montana and Alaska have lifted prohibitions in recent years, most that have legalized recreational use still tend to lean toward Democrats in state and national elections.

That could change this year, as four of the five states with legalization on the ballot — Arkansas, Missouri and the Dakotas — have Republicans in control of both legislative chambers and in the governor’s office.

“We’ve seen a growing number of states in the middle of the country re-examining their marijuana laws,” said Mason Tvert, a spokesman for the Denver-based cannabis law and policy firm Vicente Sederberg. “This is really just the next step in the evolution of public attitudes toward marijuana policy.

“Generally, what we find is the more people hear about and learn about marijuana, the more likely they are to support making it legal and regulated.”

Adding more states that allow for recreational use provides the possibility that members of Congress from those states will support a fledgling industry and promote federal changes, Tvert said.

Criticism of cannabis ballot measures

The initiatives are not without their critics, even on the political left. St. Louis Mayor Tishaura Jones, a Democrat, said this week she opposed Missouri’s ballot measure because it would exclude Black business owners from the industry, the Missouri Independent reported.

Legalization advocates in Arkansas have also criticized that state’s ballot initiative for being too strict and not including expungement of previous offenses, the Arkansas Advocate reported.

But the trend since Colorado and Washington first allowed recreational use 10 years ago has been toward further legalization.

As the industry has flourished where it is state-legal, it has developed an interest in expanding elsewhere.

“For-profit companies, they have an interest in getting in these other markets,” said Beau Kilmer, the co-director of the nonprofit think tank RAND Corp.’s drug policy research center.

As more states adopt legalization, the model could shift, Kilmer added. Colorado and Washington “definitely set a precedent” for a for-profit model, but other approaches are possible, he said.

Places in Canada, for example, permit only sales through state-owned stores, which allows the government to set prices and strictly control what products and potencies are available.

“It’ll be interesting to see, especially as more conservative states start having more serious conversations about this, whether or not we see a middle option — the state store approach, for example,” Kilmer said.

Marijuana legislation in some states?

As cultural acceptance of marijuana use has increased, more states may opt to address legalization through the “traditional legislative process” rather than through ballot initiatives, Kilmer said.

That could leave space for other approaches beyond the for-profit model.

Each state that passes legalization has adopted varying regulatory approaches, Tvert said. But the model popularized by Colorado and Washington is generally seen as successful.

Former critic U.S. Sen. John Hickenlooper, a Democrat who was the state’s governor when the ballot measure passed, said this month his concerns never materialized.

“I feel pretty darn sure now that this is such a better, in terms of almost every measure, such a better societal decision than what I grew up in, and it’s going to have huge impacts,” Hickenlooper said at an event commemorating the 10th anniversary of the state’s legalization.

“This model is something that has opened the door for all these other states. And I’ve personally gone and talked to either the general assembly or the governors in half a dozen states, and… literally, there is no attack, no anxiety that we don’t have a pretty good answer for.”

Social justice concerns

Last month, President Joe Biden pardoned thousands of people convicted of federal offenses and tasked his administration with considering removal of the drug’s Schedule I classification that puts it in the most severe class of drugs of abuse.

Efforts in Congress to legalize marijuana under federal law have stalled in the U.S. Senate, despite broad popularity.

That has left almost half the country living with a major difference between federal and state marijuana law.

As more states move to allow it, questions of fairness for those convicted of prior offenses have proliferated.

In his statement, Biden asked governors to follow his lead and pardon low-level marijuana offenders, a call that largely went unanswered.

In Missouri, Jones’ opposition stems from a provision in the measure that would allow state regulators to cap the number of licenses for manufacture and sale of recreational marijuana and give first choice to parties that are licensed to provide medical marijuana — almost all of whom are white.

Legalization push to continue after Election Day

When they’re put on the ballot, marijuana legalization measures typically pass, though often by relatively slim margins.

Tvert said there was “a good chance” each of the five states would pass their ballot measures on Nov. 8.

No matter the results, the momentum toward more legalization will likely continue, Kilmer said.

“Regardless of what happens on Nov. 8,” Kilmer said. “You’re still going to see a push for this in other states over time.”