Marijuana and Voting

Litigation is pending in three states — Mississippi, Montana, and South Dakota — to invalidate successful statewide ballot measures legalizing marijuana access.

Commenting on the litigation, NORML’s Deputy Director Paul Armentano said: “These are cynical, and arguably frivolous, attempts to undermine the democratic process. Legalization opponents have shown time and time again that they cannot succeed in either the court of public opinion or at the ballot box. Thus, they are now asking judges to set aside the votes of over a million of Americans in a desperate effort to override undisputed election outcomes. Whether or not one supports marijuana legalization, Americans should be outraged at these overtly undemocratic tactics.”

In Mississippi, where 73 percent of voters decided in favor of Measure 65 legalizing medical cannabis access, the state Supreme Court is scheduled to hear arguments specific to a lawsuit filed by the city of Madison. City officials filed a legal challenge days prior to the election claiming that the legislature’s failure to update guidelines for petitioners should invalidate the initiative vote. Notably, litigants failed to challenge the legal status of a separate initiative that also appeared on the 2020 ballot, despite the fact that petitioners for that initiative acted no differently than did those who advocated for the marijuana measure.

In Montana, where 57 percent of voters decided in favor of Initiative 190 legalizing the adult-use marijuana market, a lawsuit has been filed on behalf of the opposition group Wrong For Montana. Their suit claims that the initiative language is unconstitutional because it earmarks a portion of tax revenues from retail marijuana sales. Plaintiffs argue that only the legislature can determine how tax revenue is spent. The suit seeks to void the entirety of the initiative language, not just the portion of the initiative relevant to appropriating tax revenues. Litigants filed a similar legal challenge just prior to the election, but the Supreme Court declined to hear the case at that time.

In South Dakota, where 54 percent of voters decided in favor of Constitutional Amendment A legalizing the adult-use marijuana market, a pair of law enforcement officers this week filed suit seeking to invalidate the vote based upon the claim that the ballot language violates the state’s single subject rule. Notably, plaintiffs have not similarly challenged a separate 2020 ballot initiative, also passed by voters, legalizing the production and dispensing of medical cannabis. In Nebraska, opponents of a proposed medical marijuana legalization measure successfully litigated to keep it off the ballot by making a similar legal argument. The office of Republican Gov. Kristi Noem, who publicly opposed both South Dakota legalization initiatives, is reportedly providing a proportion of the funding for the legal challenge.

Prior to the election, marijuana legalization opponents in Arizona also filed a lawsuit attempting have Proposition 207: The Smart and Safe Arizona Act struck from the ballot. That litigation was unsuccessful. Arizonans ultimately passed the marijuana legalization measure by a margin of 60 percent to 40 percent.