PHOENIX — Attorney General Mark Brnovich wants state lawmakers to debate and enact a recreational marijuana program rather than risk an industry-crafted measure from becoming the law of the land at the ballot box.
And even Gov. Doug Ducey, who said he needs to see any legalization proposal before commenting, said he is concerned about the unchangeable nature of passing laws at the ballot box. But the governor said he remains personally opposed to adult use.
Brnovich told Capitol Media Services on Monday that the issues are far too complex to be left to a take-it-or-leave-it ballot measure. And he said those issues deserve more discussion than 30-second TV ads pushed by proponents and foes.
“Generally speaking, as a matter of public policy, the public policy makers, i.e., the Legislature, should step up and address issues so voters don’t have to do it via the initiative process,” he said.
But Brnovich said his key concern is that if marijuana for adults is legalized at the ballot it will be constitutionally protected against legislative fixes.
The idea is getting a skeptical response from the committee that is crafting what it hopes will be on the November 2020 ballot.
“I think this is more work than the Legislature has the capacity to tackle,” said Stacy Pearson, a consultant working with the group that is crafting the initiative. “This is complicated.”
More to the point, her organization does not intend to wait around until next year to see what state lawmakers craft, with petitions to get the necessary 237,645 valid signatures by July 2 likely on the streets as early as next month.
That potentially sets the stage for two competing measure on the 2020 ballot, one by initiative organizers and one adopted by lawmakers.
The Arizona Chamber of Commerce and Industry, which helped defeat a recreational marijuana program in 2016, is open to the idea of having the issue tackled by the Legislature.
“In order to be able to fix errors or address unintended consequences, adopting new policies via the regular legislative process is almost always preferable to the ballot box,” said spokesman Garrick Tayor.
But Yavapai County Attorney Sheila Polk said she will oppose any efforts to allow recreational use of the drug, whether at the ballot box or the Capitol.
“There is not a single successful model for legalization anywhere, whether by initiative or by legislative action,” she said.
“Once a state starts down the path of legalization, there is no turning back,” Polk said. “Good public policy should discourage, not encourage, drug use.”
Central to the debate is the Voter Protection Act.
In 1996 voters approved a law to allow doctors to prescribe marijuana and other drugs. The following year the Legislature effectively gutted the law to prevent it from taking effect.
So in 1998 the same group got voters to enact a constitutional measure, which prohibits lawmakers from repealing or altering anything approved at the ballot box. It allows changes only with a three-fourths vote of both the House and Senate, and only when those changes “further the purpose” of the original measure.
“Recent history has shown that there are all sorts of unintended consequences when it comes to legislating via the initiative process,” Brnovich said.
For example, state lawmakers tried in 2012 to amend the 2010 medical marijuana law to keep students from possessing the drug on campus. But Brnovich was rebuffed by the Arizona Supreme Court when he sought to defend the law, with the justices saying that wasn’t what voters approved and the Legislature had no authority to change it.
The same, Brnovich said, will be true with whatever initiative organizers present to voters. He said there will be complex questions ranging from location, packaging and advertising to how the state deals with edible forms of the drug.
And then there’s the issue of people operating motor vehicles while under the influence of marijuana.
“What do you do about testing for THC,” the psychoactive ingredient in the drug, Brnovich asked, a question that includes not only how to test but what is considered impaired.
“I think that there are a lot of really serious questions that are a part of this conversation,” he said.
“It’s hard to do that sometimes when you are doing that via the initiative process and 30-second TV ads,” Brnovich said. “These are complicated issues that deserve intellectual debate.”
Ducey, who opposed the 2016 measure, said his views of recreational use haven’t changed.
“I don’t think any state ever got stronger by being stoned,” he said. “And we have existing laws that support medical marijuana.”
But the governor also said he fears what might be approved at the ballot box.
“I think in any law there are unintended consequences,” he said.
Anything approved by the Legislature can be fixed.
“Voter protection doesn’t contemplate that,” Ducey said, referring to the constitutional protection. “And, yes, that does concern me.”
The governor was careful to say he was not trying to undermine the ability of people to craft their own laws.
“Of course I want to protect the will of the voters,” he said. “But I also think we have a legislative process for a reason, and that’s to adjust and improve policy when we can.”
Ducey said he wants to “know the specifics” before committing to a legislative solution.
One issue likely weighing on those who will decide whether to support a legislative solution is the chance that a 2020 initiative would pass.
The 2016 measure lost by a margin of just 51.3 percent to 48.7 percent. And that was with opposition from some supporters of medical marijuana who claimed that measure was designed largely to benefit existing dispensary owners.
Since then several states have legalized the adult use of marijuana, either through legislative or voter action. And a telephone survey in Arizona earlier this year showed 52 percent of those questioned in support of recreational use.
Pearson told Capitol Media Services said the cash will be there to mount the campaign.
“The funders have committed the resources to win,” she said.
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