Why Did Ohio's Marijuana-Legalization Push Fail?

Voters may have rejected a constitutional amendment because of concerns about monopoly control, not because they oppose looser laws.

Call it Not So O-high-o. Voters in the Buckeye State resoundingly rejected an attempt to legalize recreational marijuana by constitutional amendment on Tuesday. But unlike some other cases in which ballot referenda to liberalize drug laws were defeated at the polls, it’s a bit more difficult to draw broad conclusions in Ohio.

Ohio’s legalization initiative, Issue 3, attempted an unusual approach. Rather than legalize recreational use and allow businesses to sell cannabis, as in Colorado, or legalize recreational use and centralize distribution under state ABC agencies, as in Washington, Ohio’s measure was backed by a cartel of investors—ResponsibleOhio—who would retain the exclusive rights to cultivate marijuana. That arrangement was highly controversial, making it unclear whether voters were rejecting marijuana itself, or simply a system that was decried by opponents as a monopolistic travesty.

The business model was meant to serve a double purpose: It would both draw in strong monetary support for the ballot issue, and it would put a sober, corporate face on cannabis, soothing the nerves of swing-state Ohioans wary of a hippie takeover. But when I spoke to Douglas Berman, a professor of law at the Ohio State University’s Moritz College of Law Tuesday afternoon, he predicted defeat for the measure, chalking it up to a strategic miscalculation by campaigners.

“ResponsibleOhio misunderstood that there is dramatic support, not just among hippies, to say enough is enough for marijuana prohibition,” said Berman, who advised ResponsibleOhio. Meanwhile, they believed they could take for granted the support of marijuana advocates, failing to see “that hippies would be against corporatization.”

As a result, the measure proved divisive even among the most fervent advocates of marijuana legalization. The Drug Policy Alliance and the Marijuana Policy Project both pointedly abstained from endorsing the measure, while NORML—the O.G. of the cannabis community—offered a tepid endorsement, registering its unease about the monopoly. (ResponsibleOhio’s investors included Nick Lachey, formerly of the boy band 98 Degrees, as well as members of the Taft family, long influential in Ohio Republican politics.)

Polling ahead of Election Day showed a close split on the measure. A majority of respondents said both that legalization was a good idea and that the monopoly was a bad idea in a University of Akron survey, leading the pollsters to conclude that the outcome of the vote would depend on which factor voters ended up prioritizing.

Wittingly or not, by rejecting ResponsibleOhio’s proposal, Buckeye State voters aligned themselves with the concerns of some of the leading scholars of marijuana legalization. In a pair of features for Washington Monthly last year,  Mark Kleiman of UCLA made a case for government control, as in Washington state, while Jonathan Caulkins of Carnegie Mellon laid out an argument against big corporations cornering the market—as with tobacco.

In a curious turn, the success of ResponsibleOhio in getting Issue 3 on the ballot led to a somewhat hasty attempt to block it. The state legislature managed to place a separate ballot measure that asked voters to bar the granting of monopoly provisions to any economic interest. That issue was set to pass Tuesday night. Analysis ahead of time wondered what might happen if Ohioans voted both to legalize marijuana through a monopoly but also to ban monopolies. Which constitutional amendment would take precedence? Might it even produce a case in which legalization stood but the monopoly ended up dissolved?

That conflict didn't materialize, but the legislature’s decision to pursue a ban on monopolies is actually a hopeful sign for cannabis activists, Berman said—if not for cannabusiness.

“That reinforces my sense that actually it’s very hard to defend prohibition on the merits, but it’s much easier to attack any particular plan to get away from prohibition,” Berman said. “To me, the reform community has to be ecstatic to see that even in a purple state like Ohio, the advocacy against reform wasn’t ‘Marijuana is this evil weed.’ It was, ‘Don’t trust those monopolists to legalize weed.’”

It should perhaps not come as a total surprise that the initiative failed. In other states, marijuana legalization efforts that polled narrowly ahead close to the election lost, as undecided voters broke against them. First-time pushes face tough odds, and in Oregon and Colorado, which have both now legalized recreational marijuana use, earlier attempts failed.

The $64,000 question (or perhaps, in a nod to ResponsibleOhio’s astronomical spending, the $12 million question) is what advocates in Ohio will do next. A closer result might have provided a strong stimulus to activists who back legalization to mount a new effort, eschewing the monopoly system, but the lopsided result—around 65 against and 35 for as of this writing—will surely harsh their mellow. Perhaps campaigners will decide that the time is not yet ripe to legalize in swing states like Ohio, or maybe they’ll conclude that a flawed mechanism and an off-year election doomed a legalization effort that could succeed without a monopoly in 2016, which will likely draw more and younger voters because it’s a presidential election year. Who knows—given that some estimates suggested that Issue 3’s success could make investors like Lachey billionaires, maybe ResponsibleOhio won’t be able to resist trying again.

The failure in Ohio won’t stop the nationwide legalization campaign, which, despite its defeat Tuesday, has some momentum. Polls show national support for legalization at nearly 60 percent and rising, and four states and the District of Columbia have enabled recreational use. For the time being, though, they won’t be burning rivers or anything else in the Buckeye State.