Ohio’s failure to legalize marijuana tells us little about reform, and less about the future

Tonight, Ohio voters rejected Issue 3, a referendum on recreational marijuana legalization. The ballot measure served as the only statewide marijuana measure to appear in 2015 and is the first defeat for marijuana advocates since Florida narrowly rejected medical marijuana last November. It is the first loss for a recreational legalization initiative since 2012.

For the marijuana reform community, Ohio’s rejection of the ballot measure is a setback, but the post-mortem on this referendum isn’t all that damning for the activist community. There were plenty of reasons why Ohio’s measure faced an uphill battle, and the forces of defeat had more to do with timing, referendum language, demographics, and other ballot initiatives than it did with public opinion on the issue.

Let’s breakdown some of the hurdles facing Ohio’s legalization initiative.

1. Timing matters for ballot initiatives

Ballot measures are sensitive to turnout not just in terms of the total number of voters, but also the makeup of the electorate. As a result, referendum sponsors often try to run a ballot initiative when the voting base is most likely to support them. Colorado and Washington didn’t vote on Amendment 64 and Initiative 502, respectively, in 2012 by happenstance. The groups pushing for marijuana reform recognized that their success depended heavily on turnout among young voters and liberal voters (though marijuana initiatives do appeal to other demographic groups as well). In presidential election years, younger and liberal voters turn out in much higher numbers than they do in other years.

In fact, despite their ultimate success, last year’s reform efforts in Oregon and Alaska were seen as risky because they were timed with a midterm election—where turnout is substantially lower, older, whiter, and more conservative than in presidential years. In fact, the midterm-rather-than-presidential timing is likely the major reason a 2014 medical marijuana initiative in Florida narrowly failed to reach the needed 60 percent threshold for passage. Supporters are more confident in Florida’s chance of reform next year.

Ohio reformers picked the worst time to run an initiative—an “off-off” year. Other than ballot initiatives, Ohioans largely went to the polls to vote for municipal leaders. There were no races for president, senator, congressman, governor, or even state legislator. Turnout in off-off years is notoriously low and tends to skew older and more conservative—marijuana reform’s biggest skeptics. It is not to say that reform would have surely been successful in a presidential year, but you can be certain support for Issue 3 would have been higher in 2016 than it was tonight.

2. A different kind of state

The states that have previously legalized recreational marijuana—Colorado, Washington, Oregon, and Alaska—look very different than Ohio. Colorado, Washington, and Oregon blend a unique brand of liberalism with a staunch, frontiersman libertarianism to create a coalition to reform marijuana laws. Alaska capitalizes on a long history of moderate views on marijuana, a younger than average population, and an even stronger libertarian identity. Even the District of Columbia, which passed a ballot measure legalizing marijuana in 2014, is unique in that it is the most Democratic-voting entity in the U.S. that casts Electoral College votes.

Ohio is bigger, more diverse, and more politically competitive. The Democratic Party in the state isn’t driven by the type of Portland-Denver-Seattle liberalism; it’s union-centered and ethnic. The Republican Party in Ohio is more traditionally conservative and/or religious, not dominated by Western-style libertarianism. Ohio is a typical Midwestern state, not known for being a leading indicator of social change. Ohio’s rejection of legal marijuana was not the signal of a country shifting the winds on marijuana reform; it was a signal of a less progressive state not yet ready to move forward with reform—or with this specific reform.

3. A state with no medical history

Issue 3 sought to legalize marijuana in an unprecedented way: without first experimenting with medical marijuana. Many in the reform movement have pointed to existing medical marijuana systems as evidence that some form of legal marijuana does not usher in the end of times. That tactic is an effective way to diminish voter skepticism by reminding them of their own observations. Ohio, however, has no existing medical marijuana system. The lack of familiarity with medical marijuana surely increased the level of skepticism among some voters, and skeptical voters are voters who favor the status quo. In the case of marijuana, the status quo is prohibition and a “no’ vote on Issue 3.

4. A controversial market structure

Ohio’s initiative was structured in a very unique and unprecedented way. The constitutional amendment listed 10 plots of land throughout the state on which marijuana could be grown. These 10 plots were to be exclusive (the only additions could have come if the state determined those 10 grow operations did not meet state demand). The amendment would have created very high-value real estate and grow rights that would have shaped the nature of the market and made a small group of landowners quite wealthy in the process. Marijuana grown at these sites would have been sold to more than 1000 licensed dispensaries throughout the state. The marijuana monopoly—or more aptly, oligopoly—was not only controversial to voters, but became divisive even within the marijuana reform community. Some groups voiced opposition to the measure because of this structure. Some other national reform groups gave only tepid endorsements of the measure, supporting reform over the status quo but with reservations about the details of this proposal. Policy reform is difficult to enact. On issues of controversy or that seek to reverse decades of institutionalized policy, it is even harder. When the advocacy community around the issue is divided, the chance of successful reform is greatly diminished. Responsible Ohio—the organization that authored the ballot initiative—was never able to consolidate the marijuana reform community inside or outside Ohio, and the ballot measure’s fate was dramatically affected by it.

5. A conflicting ballot measure

Ohioans voted on multiple ballot initiatives—not simply legalization (Issue 3). Another ballot measure, Issue 2, was odd—not necessarily in itself—but because it appeared right beside the legalization initiative. Issue 2 amended the constitution to ban monopolies. The measure is titled, “Anti-monopoly amendment; protects the initiative process from being used for personal economic benefit” and the first bullet point explaining the initiative reads that the amendment would, “[p]rohibit any petitioner from using the Ohio Constitution to grant a monopoly, oligopoly, or cartel for their exclusive financial benefit or to establish a preferential tax status.” In effect, Ohio voters were asked on one measure to ban ballot initiative-created oligopolies and on another to create a marijuana oligopoly. In some ways Issue 2 served as inside-the-polling-booth negative advertising for Issue 3.

Ohio will not rollout legal marijuana just yet, and tonight’s results suggest that successful strategy (time, place, language, structure) is as important, or more so, than tens of millions of dollars in funding support. Ohio’s rejection of Issue 3 is not a death knell for the marijuana reform and activist communities. In fact, I’m certain there are reform-minded individuals and organizations around the country that will be quietly pleased—or at least not shed tears—that Issue 3 failed, knowing that eventually another initiative, written in another way, on the ballot in another year, will likely pass.

I have written previously that the success of previous marijuana reform ballot initiatives was due in part to the professionalization of the reform community, hiring political strategists, lawyers, lobbyists, communications professionals, and others to join issue-driven activists in the fight for their cause. The failure of Issue 3 was a failure by Responsible Ohio to implement an effective political strategy that is sensitive to the challenges facing referenda.

The “big” takeaway from tonight’s rejection of legalization is this: don’t run a controversial marijuana initiative in Ohio in an off-off year. Anyone who suggests Ohio’s decision tells us anything about the success or failure of initiatives in 2016 is just blowing smoke.