What Ohio’s rejection of marijuana legalization tells us about direct democracy

Ohio’s Issue 3, which would have made the bellwether state just the fifth in the country to provide a legal market for marijuana, was decisively rejected by voters on Tuesday by an almost 2-1 margin. (For background on the peculiarities of this proposed state constitutional amendment, see my post describing the audacious business plan of its backers, united as “ResponsibleOhio.”) As John Hudak explained last night, it’s wise to resist drawing any sweeping conclusions from this vote: given the characteristics of the Ohio off-off year electorate, it was going to take an extraordinary turnout effort, especially among younger voters, to secure a win for legalization. Despite the hard work of Issue 3’s most recognizable champion, Buddie the marijuana mascot, as well as celebrity ads from the likes of NBA legend Oscar Robertson, we can now say that ResponsibleOhio made an epic miscalculation in imagining that they could control Ohio’s voter-initiated constitutional amendment process so brazenly.

Does that make Tuesday a good day for direct democracy? After all, predictions that voters in an off-cycle could be overwhelmed by moneyed interests—ResponsibleOhio was reported to be targeting $20 million in campaign spending going into the vote—turned out to be wrong. Ohioans, or at least those that turned out for this election, proved resistant to manipulation, demonstrating the integrity of the ballot initiative process.

There is something to that, but it is far from the whole story. For one thing, in spite of the clear margin of defeat for Issue 3, it is extremely difficult to say why the measure failed. Was it simply because of the composition of the voting electorate? Was it the unprecedented big-business orientation of ResponsibleOhio’s approach to legalization? Was it just that Ohioans don’t want legal marijuana in their heart of hearts, regardless of what they tell pollsters? We will never be able to say for sure, and so narratives about “voter integrity” writ large are very hard to evaluate.

There is also a case to be made that it was Issue 3’s opponents who managed to successfully manipulate the initiative process successfully. First, they managed to get Issue 2, titled “Anti-monopoly amendment; protects the initiative process from being used for personal economic benefit,” on the ballot through the legislature. Second, because the ballot board itself was hostile to Issue 3, they managed to give it a distinctly unflattering title: “Grants a monopoly for the commercial production and sale of marijuana for recreational and medicinal purposes.” Because voters have an instinctive dislike of monopolies, Ohio State law professor Daniel Tokaji argued that they were essentially faced with two questions on Issue 2 and Issue 3 respectively: “Do you like puppies?” and “Do you hate puppies?” At an event last Friday, he very confidently predicted that, given these framings, Issue 2 would pass while Issue 3 would fail, and he was correct.

Tokaji also warned that Issue 2 would effectively be empowering the Ohio Ballot Board—which is dominated by the Ohio Secretary of State, a partisan elected official—to further manipulate ballot issues in the future. With Issue 2 passed and Section 1e of Article II of Ohio’s constitution amended, the Ballot Board is now in a position to judge whether a proposed amendment would “would grant or create a monopoly, oligopoly, or cartel, specify or determine a tax rate, or confer a commercial interest, commercial right, or commercial license to any person, nonpublic entity, or group of persons or nonpublic entities, or any combination thereof, however organized, that is not then available to other similarly situated persons or nonpublic entities.” If they decide yes, then voters must simultaneously pass two ballot issues to make the change: one to certify that they would like to override the anti-monopoly provision, and one for the substance of the amendment itself. Presumably, the former would be difficult to overcome, meaning that the Ohio Ballot Board is now in a much stronger position to hinder passage of constitutional amendments it does not like.

In other words, direct democracy in Ohio just got a little less direct and more mediated. For strong believers in the ability of voters to think cogently about issues on their own and effect positive changes through direct political action, that will seem like a loss. For those of us who are skeptical of direct democracy and in most instances would prefer legislatures to be the forum for political decision-making, perhaps that doesn’t sound so bad.

The four states that have legalized recreational marijuana to this point (Colorado, Washington, Alaska, and Oregon) have all acted through voter referenda. Importantly, Colorado acted through state constitutional amendment while each of the other three used initiative processes that ended up amending their state statutory codes rather than the state constitution; as a result, it will be somewhat more difficult for Colorado legislators to make any adjustments to their policy framework if doing so becomes necessary. Ohio’s strange system under the ResponsibleOhio regime would have been similarly inflexible.

It is possible that we will soon see a legislature—Vermont’s—tackle the question of marijuana legalization head-on, rather than waiting to be forced by voters. For an issue with as many moving pieces as creating a legal and regulated marketplace for marijuana, there are good reasons to think that legislatures have some natural advantages, and we will see if Vermont’s statehouse takes the chance to become a national leader.

Regardless of whether that happens, though, marijuana legalization is deeply wedded to direct democracy mechanisms for the moment, with 2016 ballot initiatives likely to pose a critical test for the movement.