Cannabis on The Ballot – 2024 Brings Disappointing Results

Voters in five states voted yesterday on whether to legalize cannabis in some form and only one measure passed. In Florida, nearly 56 percent of voters approved Amendment 3 to legalize adult-use cannabis but the measure failed to achieve the required 60 percent of votes necessary to amend the state’s constitution. Adult-use cannabis legalization measures also failed to garner majority support in North Dakota and South Dakota. While voters in Arkansas were allowed to vote in favor of expanding the state’s existing medical cannabis program, the state’s Supreme Court ruled prior to the election that the votes could not be counted. The only state to approve a cannabis legalization measure was Nebraska, which became the 39th state to legalize cannabis for medical use. But the validity of the measure is the subject of an ongoing legal challenge.

The table below provides a snapshot of cannabis-related election results:

Florida

Florida Amendment 3, a proposed amendment to the Florida Constitution to legalize cannabis for possession, purchase and recreational use in Florida for adults 21 years of age or older, failed on Tuesday night, despite garnering support from approximately 56 percent of the electorate. In Florida, constitutional amendments must secure support from at least 60 percent of voters to pass. Thus, even though Florida Amendment 3 had the support of a majority of the state’s voters, it was still defeated.

The failure of Amendment 3 underscores the difficulty in meeting a 60 percent supermajority requirement. California Proposition 64, which legalized adult-use cannabis in 2016, won 57.1 percent of the vote. And Colorado Amendment 64, which legalized adult-use cannabis in 2012, won just 55.3 percent of the vote. Thus, roughly the same percentage of voters voted to approve adult-use cannabis in Florida as they did in California and Colorado. And voters in eight states approved the legalization of adult-use cannabis with less support than Florida’s measure received yesterday.

It is worth noting that had Amendment 3 passed, it would have required implementation legislation to issue additional licenses beyond the existing MMTCs. Thus, Governor Ron DeSantis, who staunchly opposed Amendment 3, and the state’s Republican-dominated Legislature may have prevented the development of a robust adult-use market in Florida.

Nebraska

Nebraska became the 39th state to legalize cannabis for medical use when it passed two cannabis initiatives, Initiatives 437 and 438, by large majorities. Initiative 437, which passed with 70.7 percent of the vote, adopts the Nebraska Medical Cannabis Patient Protection Act, which legalizes the possession and prescribing of medical cannabis. Initiative 438, which passed with 66.9 percent of the vote, enacts the Nebraska Medical Cannabis Regulation Act, creating a regulatory framework for a medical cannabis market. Highlights of these initiatives include:

• Legalizing possession and acquisition of up to five ounces of medical cannabis (not including the weight of any ingredient combined with the cannabis) for qualified patients, defined as a patient 18 years of age or older with a written recommendation from a healthcare practitioner or a patient younger than 18 years old with a written recommendation from a healthcare practitioner and a written consent from a parent or guardian (Initiative 437)
• Legalizing possession of cannabis accessories (Initiative 437)
• Requiring written recommendations from medical professionals in order to obtain medical cannabis (Initiative 437)
• Establishing a Nebraska Medical Cannabis Commission with the power to regulate possession, manufacturing, distribution, delivery, and dispensing of medical cannabis (Initiative 438)
• Requiring the Nebraska Medical Cannabis Commission to establish application criteria by July 1, 2025 (Initiative 438)
• Requiring the Nebraska Medical Cannabis Commission to begin granting licenses to medical cannabis operators by October 1, 2025 (Initiative 438)
• No criminal justice reforms, social equity provisions, or employment protections.

Despite passing both initiatives on election day, the validity of tens of thousands of signatures on each measure’s petition is currently being challenged in Lancaster County District Court. Should enough signatures be invalidated, the passage of the measures may be invalidated as well. Regardless of the District Court’s decision, it will likely be appealed to the Nebraska Supreme Court. We will continue to monitor developments in this legal challenge.

North Dakota

North Dakota failed to pass Measure 5, which would have legalized the possession of up to one ounce of cannabis flower, four grams of cannabis concentrate, 1,500 milligrams of THC in cannabis products and 300 milligrams of edibles for adults 21 years of age or older. North Dakota already has a medical cannabis industry, but has repeatedly failed to legalize adult-use cannabis.²

South Dakota

Like North Dakota, South Dakota has seen efforts to legalize adult-use cannabis for years. This year, South Dakota voters defeated Measure 29, which would have legalized possession and acquisition of up to two ounces of cannabis flower, 16 grams of cannabis concentrate, and 1,600 milligrams of THC in cannabis products, as well as home cultivation of up to six plants per person or 12 plants per household, for adults 21 years of age or older.

South Dakota voters previously approved an adult-use cannabis measure in 2020, but that measure was overturned by the state Supreme Court for violating the state’s single-subject rule. For this reason, Measure 29 did not include a proposed licensing regime. Thus, it still would have been up to the South Dakota state legislature to pass legislation establishing a regulatory regime to implement Measure 29.

Arkansas

Lastly, Arkansas Issue 3 would have expanded Arkansas’ medical cannabis program to allow for home cultivation, more qualifying conditions, and the ability for all medical providers to prescribe cannabis products to patients. But while Arkansas voters were given the opportunity to vote on the measure this year, the Arkansas Supreme Court ruled that Issue 3 was “misleading” and therefore the votes could not be counted. Specifically, the court found that the measure’s name and title, which indicated that the measure was about the expansion of medical cannabis, was misleading because the measure also included a provision to legalize adult-use cannabis in the state had it been subsequently legalized by the federal government.

2024 has been a disappointing year for cannabis legalization efforts. It appears that 2024 will be the first year since 2017 that no additional states will legalize cannabis for adult use; the number of states where adult-use cannabis is legal remains at 24. And only one state (Nebraska) appears poised to adopt a medical program this year. But the results in Florida and Nebraska demonstrate that popular support for cannabis remains strong, even in more conservative states.

^[1] Results at the time of publication. Some ballots are still being counted.
^[2] North Dakota voters previously voted down initiatives to legalize adult-use cannabis in 2018 and 2022. A similar measure in 2020 failed to achieve the required number of signatures to qualify for the ballot.

This informational piece, which may be considered advertising under the ethical rules of certain jurisdictions, is provided on the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin or its lawyers. Prior results do not guarantee similar outcomes.