By Alex Kreit, assistant professor of law and director of the Center for Law and Social Justice at Thomas Jefferson School of Law in San Diego. Kreit is author of the ACS Issue Brief, "Toward a Public Health Approach to Drug Policy."
Now that California's Proposition 19, which would have legalized marijuana, has gone down in defeat, those who follow drug policy issues are beginning to reflect on why the initiative failed to pass and what the result might mean for marijuana policy going forward.
As someone who researches and writes about controlled substances laws, I'm happy to have the opportunity to share a few preliminary thoughts of my own.
With regard to why Proposition 19 faltered, there are a number of individual factors that likely cost the measure a few percentage points of support, such as insufficient funds for a statewide television ad campaign and running the measure in a midterm where youth turnout was much lower than in a presidential cycle. But, it is also important to keep in mind that passage was always something of a long shot.
Although polling showed the initiative with support in the low 50-percent range for much of the campaign, conventional wisdom holds that measures polling below 60 percent going into a campaign are unlikely to pass. This is because most ballot initiatives tend to lose support over time, particularly in the home stretch of the campaign. Simply put, it's easier to convince someone to vote against something than for it. A vote against a ballot measure preserves the status quo. As a result, sowing one or two doubts about an initiative in a voter's mind is usually enough to get that person to oppose it, even if he or she is generally supportive of the aims of the initiative.
The "No on Prop.19" campaign smartly played on this dynamic. Their campaign slogan, for example, did not even mention marijuana legalization but instead called on voters to reject the initiative because it was "a jumbled legal nightmare" regardless of their views on legalization. The Chamber of Commerce's advertisement against the measure likewise ominously warned voters that "Prop. 19 would do more than simply legalize marijuana," and focused on the supposed adverse effects of an employment provision contained in the initiative.
In other words, the "No on Prop. 19" campaign did not win by running a campaign against marijuana legalization generally but by sowing doubts in the minds of swing voters based on specific provisions in the proposed law. To be sure, this strategy would not have succeeded if the opposition had not also begun with a solid base of voters who oppose legalizing marijuana on principle. But, those voters alone would not have been enough to defeat Proposition 19.
The nature of the opposition's campaign also helps to explain why the initiative's supporters have not seemed particularly dejected by the loss. The measure's proponents know that even though Proposition 19 only received 46 percent of the vote, there is little doubt that a majority of California voters currently favor legalizing marijuana in principle. If drug policy reformers return in 2012 with a tighter measure that speaks to the "No on Prop. 19" campaign's criticisms by, for example, eliminating Proposition 19's employment provision and adding a provision to increase penalties for drugged driving, they have a very good chance at capturing the additional four percent that they would need to win. Because of this, the line coming out of the "Yes on 19" campaign on election night was that the results showed marijuana legalization, like gay marriage, is no longer a question of if but when.
Whether or not that proves to be the case, I would not be at all surprised if 2012 sees ballot initiatives to legalize marijuana in three to five states (likely candidates include Washington, Oregon, Colorado, Nevada, Massachusetts and, of course, California, among others).
Of course, attempting to predict the future is always dangerous business. For all I know, 2012 might be the year the world ends rather than the year of marijuana-themed ballot measures.
Regardless of what the future may hold, however, Proposition 19 confirmed beyond any lingering doubt the drug war era is over. A sizeable portion of the electorate believes that the war on drugs has failed and these voters are open to considering policies (like marijuana legalization) that would have been politically unthinkable in the recent past. Five years ago, "legalize it" was a message relegated largely to the t-shirts of dreadlocked reggae festival attendees. Today, it is a mainstream political issue that garnered more votes in California than Republican candidate Meg Whitman did for governor.