Ballot barriers: How advocates plan to take recreational marijuana to Montana voters
MONTANA — At least three separate groups are organizing to legalize recreational marijuana in Montana on the 2020 ballot, a process complicated by rules regarding citizen initiatives, expense and a peculiarity of the state constitution.
The groups are taking varied approaches to getting their initiatives on the ballot. MontanaCan, a grassroots group drawing from the medical marijuana community, is gathering public input on its proposed legislation. The other organization that has announced its intentions is Coalition 406, led by lobbyist Pepper Petersen and former Montana Democratic Party Executive Director Ted Dick.
The third group has yet to go public or divulge its membership but is working with M+R Strategic Services, a campaign consulting firm with offices in Missoula that specializes in ballot initiatives, M+R senior vice president C.B. Pearson confirmed. In 2016, M+R worked for the Montana Citizens for I-182 ballot committee that resurrected Montana’s medical marijuana program a month and a half after the courts let the Legislature’s 2011 soft repeal go into effect.
Efforts to reform marijuana laws in other states suggest that the deciding factor in which group makes it to the ballot could be the Marijuana Policy Project, the largest marijuana policy reform organization in the country.
MPP funding has been crucial in initiative efforts in several states, including Alaska where the group managed the state ballot committee and spent more than $700,000 to put a recreational marijuana initiative on the 2014 ballot.
Pearson, Petersen and Erica Siate, head of MontanaCan, agree that getting initiatives on the ballot is expensive and all have talked with MPP. Siate said MPP Deputy Director Matthew Schweich visited the state earlier this year, and Schweich said in an emailed statement to Montana Free Press that the group is exploring a 2020 legalization campaign in Montana.
“We have been in contact with numerous groups in Montana about the potential for partnering on this effort. If we decide to get involved, our goal will be to unify all legalization advocates behind a single initiative,” Schweich said.
One reason the process is so costly is a legal requirement that signatures supporting ballot initiatives are well-distributed statewide. Montana law requires that signatures be collected from at least five percent of qualified voters in 34 of the state’s 100 legislative districts for Legislature or citizen-initiated statutes and 10 percent in 40 districts for constitutional amendments. That means groups can’t collect the 25,468 signatures necessary to put an initiative on the ballot solely from urban centers with predominantly liberal voters but must also canvas predominantly conservative districts where the issue may be less popular. In a state the size of Montana, that’s pricey. Such distribution-based requirements have been pushed by Republican-controlled legislatures in Western states for two decades.
On the basis of a prior ruling in Idaho, federal courts in 2005 struck down Montana’s county-based distribution requirement, which had been passed by voters in 2002 after referral from the Legislature. Nevada also lost a county-based requirement to a similar ruling, resurrected it, and lost it again in 2008 after a lawsuit involving MPP. Montana, Idaho and Nevada have all since passed or retained distribution requirements based on legislative districts, which reflect more uniform populations.
The Montana Constitution still contains the unenforceable county-based requirements, and two constitutional amendments on the ballot in 2020 will decide whether that language is updated to reflect current law.
MPP Director of State Campaigns Heather Azzi said last year that legislative district-based requirements still present challenges. “It can be especially difficult to coordinate a volunteer-based effort statewide, like many of these medical cannabis citizens initiatives are,” she said.
Coalition 406 and Pearson both project budgets in the millions to get a recreational marijuana initiative on the ballot. Siate said MontanaCan plans to do it with $500,000 by mobilizing the state’s medical marijuana community and the same support that passed medical marijuana in 2004.
MontanaCan is the only group so far to release a bill draft, which Siate said is based on a failed bill introduced by freshman legislator Rep. Tom Winter, D-Missoula, late in the 2019 session.
Winter’s bill would have allowed people 18 or older to purchase recreational marijuana in Montana. MontanaCan’s bill sets the age at 19. Every other state that has legalized recreational marijuana set the purchasing age at 21, as with alcohol. Siate doesn’t encourage a correlation between marijuana and alcohol, which she considers harmful in comparison. The legal marijuana age in Canada is 18 or 19 depending on the province.
According to Pearson, any age other than 18 would be illegal under state law due to precise language in the state constitution, a concern echoed by the Montana Legislative Services Division when it reviewed MontanaCan’s draft proposal.
Article II, section 14 of the Montana Constitution states that a “person 18 years of age or older is an adult for all purposes, except that the legislature or the people by initiative may establish the legal age for purchasing, consuming or possessing alcoholic beverages.”
According to Legislative Services’ legal review, “if passed as currently drafted, the initiative would be vulnerable to invalidation on the basis that it deprives 18-year-olds from the rights to possess, use, grow, etc. marijuana that are afforded to individuals 19 years of age or older pursuant to this initiative.”
Legislative Services identified other issues with MontanaCan’s bill, and said it was unable to complete a comprehensive review because marijuana laws passed by the 2019 Legislature, which the bill would amend, have yet to be codified.
Montana is no stranger to flawed marijuana law. The poorly regulated 2004 medical marijuana program passed by voters was so full of “gray areas” that it led to prosecution of its pioneers on drug charges. The legislative repeal got caught up in courts for years, leaving the flawed program on the books, which allowed for black-marketeering. Only in recent years has the program been reformed to function as intended.
Though a recent poll shows strong support for recreational marijuana legalization in Montana, voters in other states have shown an unwillingness to support inadequately regulated programs. North Dakota voters, for instance, legalized medical marijuana by a large margin in 2016, but a recreational initiative not funded by national organizations and without purchasing limits or industry regulations was overwhelmingly rejected last year.
Potential solutions offered by Legislative Services are for MontanaCan to lower its bill’s age limit to 18 or pass a concurrent constitutional amendment adding an exception similar to the one for alcohol.
Hunter Pauli is a Seattle-born, Missoula-based freelance investigative reporter and graduate of the University of Montana School of Journalism.