Ask Our Experts: Legalization and the U.S. Presidential Election


Q: Now that both major U.S. political parties have generally staked out their cannabis positions, what might be expected from November’s presidential election?


By J.J. McCoy, Senior Managing Editor, New Frontier Data

A: Nine weeks before the U.S. elections, 11 states and the District of Columbia have legalized cannabis for adult use, with another 33 states (and D.C.) allowing it for medical use. Two dozen states and D.C. have also formally decriminalized its use, to respective degrees.

This month, for the first time the number of registered U.S. medical cannabis patients surpassed 3 million. Given that 225 million Americans overall now live in jurisdictions with some legalized access to the plant, consensus thinking among industry experts and policymakers is that federal legalization is coming; yet to be determined is how quickly, and in what form.

As noted by New Frontier Data’s Senior Director of Industry Analytics Kacey Morrissey, ‘if all the states with legalization initiatives on the 2020 ballot pass them, it will mark the first time that the population of Americans living in states where cannabis is fully legal for adult use surpasses those who live in states which still jail people for possession or use.”

With Nebraska having determined that it will vote on a medical cannabis referendum, there are six states deciding cannabis measures, with each of Ohio, Oklahoma, and Tennessee possibly joining the list.

As a candidate four years ago, President Trump went on the record in favor of medical cannabis, but he subsequently appointed attorneys general who have been steadfast in their willingness to prosecute against it. Attorney General Jeff Sessions personally requested funds from Congress to prosecute medical marijuana cases in states where it was legal. Since 2014 during the Obama administration, Congress had prevented the Department of Justice from using any funds to prosecute state-legal medical marijuana transactions.

By June 2018, five months before the midterm elections, Trump said that he would “probably” lend support to the STATES Act, a bipartisan bill to protect the states (and D.C.) with legalized cannabis from any federal interference, and let businesses that sell marijuana to operate without fear of prosecution by the Justice Department. However, by February of this year, the president again shifted his stance, as in preparing its 2021 fiscal budget his administration proposed removing protections for medical cannabis. The president was also recorded as saying that using cannabis gave consumers “an IQ problem.”

More recently, the Daily Beast this month reported that the Trump campaign worries that attempts to legalize or decriminalize cannabis might hurt their chances at the ballot box, particularly through turnout for adult-use measures being decided in Arizona and Montana.

As noted by Rep. Matt Gaetz (R-FL), “marijuana politics have more multitudes in 2020 than 2018, [and] the political opportunity is there for either party in 2020 on marijuana policy,” as underscored by medical marijuana having a 92% favorable rating. Last week, the Republican National Committee Chairwoman Ronna McDaniel said that the party has no platform position on it this year, but opined that medical marijuana “should be left up to the states.”

For their parts, Democratic presidential nominee Joe Biden and his newly chosen vice-presidential running mate Sen. Kamala Harris (D-CA) last weekend discussed decriminalization and other drug policy reforms.

Longtime cannabis advocate Rep. Earl Blumenauer (D-OR) has described Biden as a “constructive player” for reform if he is elected, though he has also dismissed the former senator and vice president’s decriminalization plan as “meaningless.” Blumenauer tweeted praise for Harris’ selection as “terrific” for the ticket, given their efforts together toward legalization legislation. He has publicly concluded with “absolute confidence” that a Biden administration and Department of Justice under him would not interfere with legalization efforts at the federal or state levels.

As Wall Street data analyst Jessica Rabe shared with Benzinga, a tight contest may prove to be the best motivation for the Democrats to give urgency to cannabis legalization. “Perhaps an increasingly tight race will push Biden to embrace national legalization to rally voters to the polls, especially millennials [who] broadly support the issue,” she surmised.

In what looks to be the last presidential election between two candidates who were each of voting age in 1971 when President Nixon formally announced his war on drugs, legalization may not be immediately decided on November 3. But much will depend on the outcome.