It’s Not Whether Maryland Will Legalize Marijuana, But When. How Matters, Too

Photo Credit: Northeastern

There isn’t a better reader of the tea lives in Annapolis than Senate President Thomas V. Mike Miller. He’s been saying for a couple of years now that legalization of recreational marijuana in Maryland — something that seemed like a far-out idea when former Del. Heather Mizeur made it a central plank of her 2014 gubernatorial campaign — is inevitable. We’re inclined to believe him. Public attitudes on the drug have shifted rapidly in recent years, and it is now legal for recreational use in nine states and (sort of) Washington, D.C. The most recent polls on the issue report that about 60 percent of Maryland voters support legalization. At least four of the seven Democrats running to unseat Gov. Larry Hogan have voiced support for some form of it. But legalization still may not happen as fast as proponents might like.

With the exception of Vermont, every state that has legalized recreational marijuana has done so through a ballot initiative, often over the objections of governors and legislative leaders.The only kind of referendum that’s allowed under Maryland’s constitution is one in which voters petition to repeal a new law that the General Assembly has enacted; there is no mechanism for voters to directly propose legislation. That means supporters of recreational marijuana will need to convince 71 members of the House of Delegates and 24 senators (though in reality, probably 29 to avoid a filibuster) to vote for legalization. If the governor isn’t on board and vetoes the bill, the threshold goes up. Given the cautiousness of many lawmakers when it comes to an issue like this, that’s a heavy lift.

Ironically, though, many see what should be a harder road to legalization to actually be the most likely path: a constitutional amendment. That avoids the question of a gubernatorial veto but requires supermajorities of both chambers — 85 votes in the House and 29 in the Senate. Yet some lawmakers who would oppose legalization might be willing to vote for such an amendment because it leaves the ultimate decision in the hands of voters, who would be asked whether to ratify it in the next election.

We have been and remain wary of the effort to legalize recreational marijuana here. We have learned much from the experience of early-adopter states, but key questions like legalization’s effects on public health, impaired driving and underage use remain unsettled. There is, as far as we’re concerned, no need to rush in to this, particularly given the state’s moves to decriminalize possession and make the drug available for those suffering from certain illnesses and chronic conditions. But if and when Maryland does take the next step, the one thing we should absolutely not do is legalize marijuana through a constitutional amendment.

We’ve tried this route before. In 2007, then-Gov. Martin O’Malley convinced the legislature, which had blocked legalization of slots during the term of his Republican predecessor, Robert L. Ehrlich Jr., to put the matter on the ballot as a constitutional amendment — not because it was necessary to amend the constitution but because it broke the political logjam in Annapolis. One of the talking points at the time was that it would protect Marylanders from further expansion of gambling by enshrining the details in the constitution. That protection didn’t mean much; gambling interests managed to get an expansion back on the ballot a mere four years later in what proved to be the most expensive (by far) public campaign around any election issue in Maryland history, with dueling casino giants spending tens of millions to persuade the public. Putting the issue in the constitution also meant that other details, like the precise number of slot machines, the locations where casinos could be built and the precise uses for the taxes they generated could only be changed through another amendment.

There was no legal reason to legalize slots through the constitution, and doing so neither closed the door on further expansion of gambling nor provided the state with the flexibility to manage the program in the best way possible. Legalizing marijuana through the constitution would likely lead to the same problems. The proposal to do so that’s pending this year would, for example, specify the precise amount of marijuana in regular or concentrated form a person could legally possess; how many plants a person could grow; how many of them could be flowering at any given time; and how much could be shared with a friend. More broadly, the proposed amendment anticipates a particular regulatory structure of commercial growers that might not necessarily be the best model.

Marylanders already have a chance to make their views on legalization known. They can and should ask candidates for governor and the General Assembly to stake out positions on the issue, and they should vote in the primary and general elections accordingly. Whoever is elected this fall should make the hard decisions about whether and how Maryland should legalize recreational marijuana and not take the easy way out of putting the question on the ballot.