Will Massachusetts Get Legal Recreational Marijuana? You Decide!

In November, 2016, voters in the Commonwealth of Massachusetts will get to decide whether we join Colorado, Alaska, Oregon, Washington, and Washington, D.C. in legalizing recreational marijuana. This process of direct democracy is known as ballot initiatives or referendums.

The ability to pass laws directly by ballot initiative or referendum is newer than you might think. Voters in Massachusetts only gained this power in 1918 with passage of Article 48 to the Massachusetts Constitution. "The principle of the initiative and referendum in its purity means that the people of this Commonwealth may have such laws and may have such a Constitution as they see fit themselves to adopt." Joseph Walker, Debates in the Massachusetts Constitutional Convention, 1917-1918, 16 (1918).

However, in giving the people this power, the amendment also recognizes the high bar that should be set before placing initiatives on the ballot. Before an initiative makes it onto the ballot, the sponsors must draft the law, pass scrutiny by the Attorney General's office, and then obtain a tremendous number of certified voter signatures from different counties in the Commonwealth (3% of voters in the last Governor election).

On December 9, 2015, Juliana Rice, Esq. from the Attorney General's Office Government Bureau; William Luzier, Esq. with the Campaign to Regulate Marijuana Like Alcohol; and Thomas O. Bean, Esq. with Verrill Dana, LLP who worked on the anti-casino ballot initiative in 2014 came to the Massachusetts Bar Association to speak about the process and difficulties of getting from initiative petition to law.

Attorney Rice is currently in charge of accepting and reviewing the ballot initiatives for the Attorney General's Office, and she or someone in her office will speak to individuals and groups about the process of getting initiatives on the ballot. They will also provide some assistance to ensure that the proposed initiatives are valid under the Constitution and have the best chance of passing Attorney General scrutiny.

Attorneys William Luzier and Thomas O. Bean spoke about the difficulties of getting initiatives onto the ballot and then passed into law. For instance, there is currently no limit on money contributions towards a ballot initiative campaign. This led to the incredibly lop-sided spending in the recent anti-casino gambling initiative: $14 million spent by the casino industry and advocates compared with about $650,000 spent by anti-casino advocates. Perhaps as a result of this imbalance in spending, the initiative to repeal casino gambling was crushed 59.5% to 40.5%. The good news is there is currently a bill in front of the Massachusetts legislature to limit ballot initiative donations to $500. This may at least somewhat level the playing field.

It is also important to note that ballot initiatives are still vulnerable once passed into law. The Massachusetts Legislature has the power to amend or repeal the approved ballot initiatives like any other law. The only thing that may dissuade them from doing so is the expression of the voters' will in passing the initiative. Barring the fear of voter retribution, however, groups may have to continue to zealously advocate to protect their ballot initiatives in the legislature for years to come.

So look out this coming November for the 2016 Massachusetts ballot questions. These direct-to-law initiatives will be summarized by the Attorney General's Office in the materials provided to registered voters ahead of the election. Read these summaries to make a careful and well-informed decision when exercising your power of direct democracy. We may have such laws as we see fit to adopt, and we should not take that power lightly.

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