Marijuana legalization has apparently failed in Arizona, with uncounted votes unlikely to turn the defeat into victory as they did with the state's medical-marijuana measure in 2010.
As evidence mounts that the gulf between the "no" and "yes" votes on Prop 205 is too vast for the measure to catch up, cannabis supporters are left with one burning question: How could this happen in Arizona, when voters in California and as many as five other states approved the legalization of recreational or medical marijuana?
The Associated Press called the race at about 11 p.m. on election day as a defeat for the ballot measure. But the Campaign to Regulate Marijuana Like Alcohol in Arizona still hadn't conceded the race as of Thursday morning, as officials seemed to cling to the hope that a miracle might still occur. Even Governor Doug Ducey, a staunch Prop 205 opponent who helped raised hundreds of thousands of dollars for the opposition, didn't acknowledge the AP call in a public statement on Wednesday, saying, "We are still waiting on all the votes in Arizona to come in."
Several hundred thousand ballots still need to be counted at county election offices around the state, and workers will be tabulating the count until Friday or Saturday. At least 415,000 votes remained to be counted as of Wednesday in Maricopa County alone — mostly provisional ballots and early ballots dropped off at the polls on election day. But for the uncounted ballots to turn the tide, they'll have to go against the trend that has already been established, which has the marijuana measure going down to defeat in nearly every Arizona county. The lead on the "no" side only increased with Wednesday's numbers: By Thursday morning, the proposition was losing by 83,033 votes.
"I think it's going down," says J. Charles "Chuck" Coughlin, president of the HighGround political consulting firm and a political adviser to former Arizona Governors Fife Symington and Jan Brewer. "The margins I saw were insurmountable." (Despite the name, HighGround has no direct connection to marijuana or Prop 205.)
Experts point to several factors that appear to have played a role in the marijuana measure's likely defeat.
A strong campaign by the opposition group Arizonans for Responsible Drug Policy (ARDP) and its many wealthy donors, including billionaires Bruce Halle of Discount Tire and Nevada casino magnate Sheldon Adelson, as well as fentanyl-manufacturer Insys Therapeutics of Chandler, made a big difference.
(ARDP chair Adam DeGuire and co-chair Sheila Polk, the Yavapai County Attorney, failed to return messages on Wednesday.)
Using those funds in a lengthy, well-planned campaign to "educate voters about the full range of consequences" of Prop 205 was key, says Maricopa County Attorney Bill Montgomery. The measure wasn't a "simple plebiscite" on legalization, adds Montgomery.
Though pleased with the Arizona vote, Montgomery — who won re-election on Tuesday against his Democratic opponent by about the same margin as ARDP's victory over Prop 205 — worries that the pro-recreational-marijuana votes in California, Massachusetts, Maine (possibly), and Nevada still violate federal law.
"I expect [President-elect] Trump, who referenced 'law and order,' to insist on the proper approach to rescheduling and to call states to account and end recreational markets," Montgomery says.
Trump's position on recreational marijuana isn't exactly clear. The president-elect has said he respects the rights of state voters to decide their own fates and that he supports medical-marijuana laws. Coughlin says Trump could look at the yesterday's vote in California, where 12 percent of the country's population lives, and decide to de-list marijuana as a Schedule I drug under the federal Controlled Substances Act and/or put millions of dollars into researching the health effects of consuming the plant.
Besides ARDP's effort, the split between blue and red is another obvious reason Prop 205 didn't smoke at the ballot box, according to Neil Franklin, executive director of Massachusetts-based Law Enforcement Against Prohibition (LEAP).
"This issue tends to follow the party line," Franklin notes. Franklin, whose group works closely with the national Marijuana Policy Project, points out that of Washington, D.C., and the eight states where voters have legalized adult-use marijuana, only one — Alaska — is a red (i.e., Republican) state this year.
Trump beat Clinton soundly in Arizona, 50-45, so it doesn't surprise Franklin that Prop 205 went down. He's waiting for the final numbers before conceding, he adds.
Even as they celebrate wins in the other states, Franklin says LEAP officials will examine what they could have done differently to help Prop 205, and when might be best to launch the state's next legalization campaign.
Kathy Inman of Momforce, a local cannabis-rights organization, says many Arizona voters don't understand marijuana or why it should be legal. That made them easy pickings for the two groups that campaigned against Prop 205: ARDP and a cadre of uncompromising marijuana activists, Jason Medar and Dave Wisniewski in particular, who claimed the proposition would be worse for Arizonans than the current law, which holds that possession of any quantity of marijuana is a felony offense.
"We had people lying on both ends," Inman says bitterly. "I'm disgusted."
She blames Medar's pro-cannabis, anti-Prop 205 supporters even more than she does prohibitionists like Polk and Montgomery.
"He's supposed to know the power of this medication and the good it can do for the planet," she says of Medar, adding that all cannabis consumers should have been united in favor of the proposition.
But one outside observer, Jonathan Caulkins, a professor of public policy for Carnegie Mellon University's Heinz College, echoes some of Medar's complaints as he discusses why Prop 205 is losing.
"It was a bad proposition. It was designed to serve the interest of business owners," says Caulkins, who's based in Pittsburgh. "I'm sort of pleased and stunned that voters were able to tell the difference."
Caulkins refers to the provision in Prop 205 that gave preference for marijuana retail licenses to existing, nonprofit medical-marijuana dispensaries. With about 130 dispensary licenses already in play, that would have left only about 20 licenses for new entrepreneurs, at least at the outset.
Although the license-giveaway scheme wasn't as "breathtaking" as the legalization measure Ohio voters rejected in 2014, which would have given cultivation rights to just 10 businesses, Caulkins says it was unethical nonetheless. He compares the scenario to an oil company being in charge of writing regulations on where to drill.
By contrast, the 2012 recreational-cannabis law that passed in the state of Washington was written by the American Civil Liberties Union, Caulkins notes, "with more of an ACLU mindset: Let's stop people from being arrested."
Caulkins says it might not be difficult to write a new measure that would be palatable both to voters and to the medical-marijuana dispensaries that fear competition. He's just not sure how to do it. He believes Americans in 20 years will regret jumping straight from prohibition to for-profit businesses when they see the industry evolve into a "behemoth" with massive lobbying clout.
That said, Caulkins sees the California vote as a turning point. If the federal government allows the state to proceed with legalization, which would mean "cheap, widely available marijuana for the rest of the country," a softening of federal law is inevitable, he says. (He's talking about black-market marijuana from California invading the rest of the country here. After all, the successful passage of Proposition 64 in California means that about 40 million people suddenly have grow rights in that state alone.)
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Trump and the feds may attempt to shoot down the California vote, Caulkins adds. But that's unlikely, because the issue "is a political loser for any president...Nothing they can do would increase their popularity."
In theory, Prop 205 might suddenly re-emerge from the dust as additional votes are counted in the next few days — after all, that's what happened with Prop 203, the Arizona Medical Marijuana Act, which voters approved in 2010. Over the course of 10 anxious days, Prop 203 went from losing 52 to 48 to winning by by a slim margin of 4,341 votes.
But Prop 203 was never more than about 20,000 votes behind. On November 3, 2010, the day after election day, Prop 203 was failing by only 6,732 votes, as county workers tallied the remaining early and provisional ballots.
Prop 205's hurdle to overcome is about 12 times higher.