OP-ED | We’re deciding the fate of marijuana legalization in Ohio, right? Well, maybe…

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Ed. Note: Today, Ohio voters will decide on three significant issues. Issue 1 has widespread bi-partisan support, which means it’ll likely pass easily, thus preventing (or at least curbing) gerrymandered voter districts. But it’s harder to get a read on Issue 2 and Issue 3. The Devil Strip has a policy of not endorsing candidates, which is why we haven’t, and we’re extending that to ballot issues like this. We’d rather present a reasoned side—especially if it runs a little counter to the mainstream—and let you figure out where you stand. That’s how we’re offering up this op-ed by Daniel Whitaker. His opinion doesn’t necessarily reflect mine or anyone else’s at The Devil Strip. Either way, please feel free to make your opinions known in the comments below. – Chris H.

The Trick to Voting on Issue 2 & Issue 3 in Ohio

an editorial by Dan Whitaker

It’s actually a bit more complicated than a simple yes or no vote on a single issue.

Issue 3 is a proposed amendment to the state constitution that would legalize marijuana in Ohio. In response to this ballot initiative, state lawmakers constructed their own amendment proposal, Issue 2, in an effort to prevent Issue 3 from taking effect, even if it passes with a majority vote. If both issues pass, the result would most likely be a battle to be decided in court.

Each proposal contains several controversial provisions. Misinformation has been abundant on all sides. The following are the facts, implications and opinions I was able to uncover through investigation of these ballot initiatives.

Issue 3 Facts

A majority vote in favor of Issue 3 would:

  • Legalize the production and retail sale of marijuana and marijuana infused products in the state of Ohio.
  • Establish a marijuana control commission will be established to regulate the industry.
  • Anyone over the age of 21 will be able to purchase, possess and share (with adults over the age of 21) up to one ounce of marijuana. Additionally, individuals that obtain a license from the state may grow and cultivate up to four flowering marijuana plants and possess up to eight ounces of homegrown marijuana.
  • Ohio licensed physicians may issue a medical marijuana certification for patients with debilitating medical conditions. Medical marijuana may only be obtained from state regulated, not-for-profit medical marijuana dispensaries.
  • Grant exclusive rights to 10 landowners of predetermined parcels of land to establish marijuana growth, cultivation and extraction (MGCE) facilities for commercial growth. Following the fourth year of the amendments implementation, the marijuana control division will annually assess whether or not the current MGCE facilities are able to meet the market demand for medical and recreational marijuana. If the commission deems that the current facilities are not meeting demand, an additional license for commercial growth may be granted.
  • Establishes marijuana product manufacturing (MPM) facilities that may produce marijuana infused products and accessories. All marijuana used in marijuana related products must be purchased from a licensed MGCE facility.
  • 1,100 marijuana retail locations will be permitted throughout the state. All retail establishments must be granted a state license, which must be approved by voters in the precinct of the store’s location. All marijuana sold in stores must be purchased from a licensed MGCE facility and all marijuana infused products must be purchased from a licensed MPM facility.

Read the full text of the amendment.

Controversy

The legalization of marijuana is controversial by nature. Despite a growing majority of U.S. citizens in favor of legalizing marijuana, there is still a vocal minority decrying anti-prohibition efforts.

However, Issue 3 has also taken heat from supporters of marijuana legalization because it proposes to amend the state constitution to limit commercial growth licenses to 10 predetermined groups of landowners.

The Ohio Libertarian Party, which has been a long-time supporter of legalizing marijuana, is among those in opposition, claiming in a statement made on the party’s website, “The Responsible Ohio initiative would lock in the 10 particular growing sites, granting an effective monopoly to the investors who control those sites. Since the initiative is being offered as an amendment to the Ohio Constitution.”

ResponsibleOhio spokesperson Faith Oltman defended the limitation of legal grow facilities, stating that the amendment is following the model of other states in which marijuana has been legalized but grow facilities have been limited.

“We’re following that model to responsibly move from prohibition to legalization. We want to make sure it’s a strict industry, highly regulated and safe,” Oltman said.

She also pointed to problems that states such as Colorado, that have not similarly limited grow operations, are having with regulating growing standards. The Denver Department of Environmental Health has quarantined over 100,000 marijuana plants since last spring because pesticides, unsafe for human consumption, were found.

Issue 2 Facts

In response to the ResponsibleOhio issue, state representatives Ryan Smith (R-93) and Michael Curtin (D-17) introduced House Joint Resolution 4 to the state legislature. The measure passed in both chambers and Issue 2, another proposed amendment to the state constitution was placed on the ballot.

A majority vote in favor of Issue 2 would:

  • Prohibit petitioners from amending the state constitution to grant a monopoly, oligopoly, or cartel for their exclusive financial benefit.
  • Prohibit petitioners from using the initiative to specify or determine a tax rate that is not then available to other similarly situation persons or non-public entities.
  • Give the five person, bipartisan ballot board the authority to determine whether a petitioner is in violation of this amendment. If the ballot board determines that there is a violation, they will pose two separate questions to voters on the ballot: One asking if they wish to grant permission to form a monopoly, oligopoly, cartel, or determine a tax rate that is not available to similarly situated persons, and the other asking if they wish to vote in favor of the proposed constitutional amendment.
  • Prohibit any legislation granting a monopoly, oligopoly or cartel appearing on the November 2015 ballot from taking effect.
  • Grants jurisdiction related to the proposal to the Ohio Supreme Court.

Read the full text of the amendment.

Controversy

Rep. Michael Curtin, one of the primary sponsors of Issue 2, believes that the amendment is necessary to protect Ohio citizens from wealthy private interests who seek to abuse the amendment process for personal gain.

“There has grown up in our country an initiative industry whereby some pretty sharp political entrepreneurs find some deep pocketed special interests to bankroll proposed amendments to state constitutions in the name of some public policy goal,” Curtin stated in an interview. “It is not the public policy goal that is my problem. My problem is embedding or trying to embed in a state constitution, an economic exclusive.”

The Ohio ACLU issued a statement in opposition of Issue 2: “For over a century, Ohioans have had the power to directly amend the state constitution by putting key issues on the ballot. This year, however, Issue 2 would change Ohio’s democratic process to make it harder for certain citizen-initiated constitutional amendments to pass.”

Common Cause Ohio Chairman Sam Sherman, in a statement to the Columbus Dispatch, warned that the ballot board may have the power to kill citizen driven initiatives, calling Issue 2 “a poison pill for direct democracy.”

Legal experts have also expressed concern about the potential interpretation of broad language within the amendment.

Issue 2 prohibits citizen initiatives from amending the Ohio Constitution to determine a tax rate that is not already available to similarly situated persons or non-public entities.

“This is a very broad provision, and it might be interpreted to mean that the Ohio Constitution could not be amended to tax cigarettes or casinos or gun manufacturers at a different rate,” said Wilson Huhn, Law Professor and Associate Director of the Constitutional Law Center at the University of Akron.

Opinion

Each issue has significant problems written into the text of the amendments. While I support the policy changes each claim to propose, on the surface, I do not support many of the underlying provisions.

The intent of Issue 2 is “to prevent the initiative process from being used to create an exclusive benefit that does not apply to similarly situated individuals,” according to Rep. Curtin.

I am in complete agreement that the state constitution should not be used for private interests to gain exclusive benefits or preferential tax rates. However, the language in the amendment is broad and there are important questions regarding how this amendment will be interpreted.

My problem lies in the provision preventing petitioners from determining a tax rate. As Prof. Huhn pointed out, this may broaden the scope of the amendment from a focus on monopolies and oligopolies to any amendment that sets a tax rate for a specific industry. This provision would put dangerous limitations on the power of citizen initiatives.

Furthermore, Issue 2 grants the power to alter a democratic process to a board of five partisan individuals. The ballot board will the power to impose a significant roadblock to the passage of any amendment initiated by citizen petitioners that deal with tax rates. The amendment will not, however, establish a similar road block for amendments initiated by the state legislature. Issue 2 reduces the power of citizen initiated constitutional amendments while protecting constitutional amendments initiated by the state legislature.

The initiative process does need to be protected from special interests with deep pockets, but Issue 2 is not the answer to this problem. An amendment that prohibits amendments to grant exclusive commercial rights to specific individuals would, no doubt, be beneficial to the State of Ohio. However, the amendment proposed by Issue 2 is too broad and will do some damage to our democratic process.

My opinion on Issue 3 is more complicated. I am in full support of the policy goal of legalizing marijuana. As a country, far too much is spent on enforcing flawed drug policies. Criminal justice expenses and incarceration for drug related crimes cost billions annually. We are past due for sensible marijuana policies.

Unfortunately, the benefits of a policy step in the right direction must be weighed against the problem of creating an economic exclusive within the new industry. While competition will likely be present, with 10 separate owners of competing MGCE facilities within the state, the sole benefactors will be determined by the amendment. Operating licenses should not be predetermined, but granted through an examination process by a regulatory commission.

The passage of this amendment will certainly benefit a fortunate few. However, the exclusive nature of the growing market could, and should, be remedied by a future amendment. If Issue 3 passes the state should prioritize policy that allows for a more inclusive market, while also insuring responsible regulation of the industry.

While I am in opposition to constitutional amendments granting economic exclusives, I believe the benefits of a sensible marijuana policy must be a priority. For this reason I will be voting in favor of Issue 3.

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