Kubby: Legalizing Marijuana – A post-election analysis

Legalizing Marijuana – A post-election analysis
by Steve Kubby

Proposition 19, the California voter initiative to “legalize” marijuana, was doomed from the very beginning. The problem was polling, which was always weak.  Despite plenty of theories by the Yes on 19 group on why polling was wrong or didn’t matter, it mattered. The fact is that Prop. 19 never polled high enough to indicate a clear shot at victory.  Hopefully, if and when we get an opportunity at financing another initiative, polling will be given much more weight than this time around.

Regardless of polling, this initiative was dead on arrival, because it was proposed during a midterm election.  Based upon the low turnout of young people from this past election, it is clear that if Prop. 19 had been proposed two years later, when young voters traditionally flock to the polls to vote on a president, it would have passed.  In fact, there was a general consensus by activists and funders that 2010 was the wrong election and no proposed initiative could pass.  Despite strong pressure to wait until 2012, the Prop. 19 group soldiered on, ignoring  the pitfalls that lay ahead.

Now that the election is over, it is time to publicly question the wisdom of supporting any initiative that promotes taxing cannabis. Yes, lots of folks think it will make us safer to pay taxes, but we’ve yet to see that to be the case. We didn’t need taxes to sell voters on supporting Prop. 215, California’s historic medical marijuana law, why do we need it now? Frankly, any taxation of cannabis, except for retail outlets for non-medical use, will invite the same fishing expeditions that the police already conduct based upon plant numbers. We can only hope that the next initiative will focus on real legalization and not peddling a watered down version of decriminalization with a sin tax, like we saw with Prop. 19.

Real legalization means something is totally legal and not subject to a long list of rules and regulations.  Had Prop. 19 been more focused on providing real legalization, it would have enjoyed much greater support from activists and voters.  If you look at the history of voter initiatives on medical marijuana, you’ll see that the highest vote totals went to initiatives like Prop. 215, which boldly established new rights, without space or plant limits or complicated regulatory schemes.  Watered down initiatives have always resulted in poor results at the polls.

Another problem with Prop. 19 is that it was too vague with too many weasel words. We expunged all the weasel words from Prop. 215 and it is unfortunate that the same was not done before Prop. 19 qualified for the ballot.

Furthermore, the initiative itself pandered to police and prohibitionists, something many activists found to be especially obnoxious.  Such pandering never helps to win votes, only to discourage activists from becoming involved.  In short, this initiative was ill-conceived, poorly written and badly timed.

Prop. 215 was historic and successful, because it was short and to the point, much like the Bill of Rights.  Prop. 19 was an administrative scheme that didn’t establish any rights, just a confusing regulatory outline that would have resulted in providing police with a new way to convict marijuana users for tax evasion.

Richard Lee, who spent his life savings to qualify 19 for the ballot, is a brilliant and dedicated activist who mounted an impressive effort to recruit minorities, unions, former police and judges, and phone bank volunteers.  But Lee gambled that he could get young people to show up at a midterm election.  Now, one must ask why anyone in the 18-21 age group would show up and vote for an initiative that specifically excluded them from participation.  Excluding 18-21 year olds was totally unnecessary — it didn’t help us win any votes and it alienated an entire age group of young voters from showing up.

There is much that could have been added to Prop. 19 or to any future initiatives.  For example, if a prosecutor loses a case against a defendant who otherwise was entitled to initiative protection, then the District Attorney’s office should automatically be held liable for defendant’s court costs.  Furthermore, all future initiatives should make it crystal clear that nothing in that initiative can be used to modify or limit any rights already granted under Prop. 215.

Lee has already announced his group will introduce another initiative in 2012. That’s good news. Hopefully, lessons were learned and the next initiative by Lee’s group will be one we can all support  and that will finally achieve victory.

32 thoughts on “Kubby: Legalizing Marijuana – A post-election analysis

  1. paulie

    Excellent analysis, Steve. I wonder why I didn’t see this sooner? I thought I was on your email list.

    If you have the wherewithal to turn the American Medical Marijuana Association into a group that finances initiatives, I can put together and administer petitioners.

  2. Craig

    “Polling” is just a check of where people stand on the issue- had other things been done, polling would have been higher. One of the main reasons it got 3.4 million votes is because it would have been taxed. Had it just been completely legal with no strings attached, without that “1 billion” a year in tax monies to fix Cali’s budget shortfalls, it would have received many more “no” votes, I’m willing to bet.

    Furthermore, lowering the age limit to 18 would have done more harm than good. More people would’ve came out to vote “no” had high school seniors be allowed to purchase cannabis, than 18 yr olds coming out to vote “yes”.

    So you wanted a bill where cannabis is completely legal, grown and sold in a tax-free market, for anyone over 18…who doesn’t? Fact is, a bill like that just wouldn’t pass.

    I think it laid the groundwork for 2012 legalization campaigns in California and Colorado, and I applaud Richard Lee for ignoring the naysayers. “Legalizing it” will be widely debated in the next two years, and more mainstream topic come 2012.

  3. John E in SF

    I agree with most of what you say, also it is very good writting, Steve! One additional point however, the proponts were way to negative and rude to their opponents and critics. First they refused our input during the drafting process and then when our points were brought out in the context of the campaign they kept calling us “prohibitionists” or “pot dealers trying to protect their monopoly.” Now they even have an “enemies list’ posted. Additionally they failed to put a face on their initiative. I never saw them put out one single person who claimed to be a “recreational user” who could not get pot under the status quo (prop 215). Who is this person? How many others like him/her exist? Should the rest of us give up the rights we fought so hard for to help this person? Hate it all you want but these are critical points that need to be addressed. One more point. The Richard Lee initiative proposed stricter rules for pot than tobacco which tends to imply that pot is more dangerous that tobacco. If that were true then perhaps it is too dangerous to legalize it for general consumption. (I personally believe pot is safe and tobacco is dangerous by the way.)

  4. Mike

    It’s a tough subject and I strongly believe that it will never be passed fir quite some time there’s just too many people from the older generations that are against it and not enough people young enough that even care to vote on that subject or any other subject.

  5. paulie

    Actually, we are getting closer and closer every year, already in the high 40s in the leading edge states and gaining about 1% support per year, plus other factors such as turnout have an impact on the vote, so it is quite likely that we can win in 2012.

    If not 2012, certainly not long after that.

    When you speak of older generation…baby boomers are already starting to retire.

  6. John E in SF

    Proposition 215 gave all potheads in California a bulletproof legal defense, all they need is a recomendation from a doctor. Prop 19 put potheads in the position of being a cash cow for the State of California. This is a war, we need shields not taxes!

  7. Gene Trosper

    Steve, I’d love to see YOU help head up a new campaign for legalization. I would most definitely be on board with it in any capacity necessary.

  8. paulie

    Steve, I’d love to see YOU help head up a new campaign for legalization. I would most definitely be on board with it in any capacity necessary.

    Yep, any chance we can gear that up for 2012?

  9. Bruce Cohen Post author

    The real underlying problem was mechanical, not philosophical.

    It wasn’t about the message or the messenger.

    Yes, there are plusses and minuses about the Prop and the presentation. All around.

    And we can replay this particular chess game in our minds for months, even years, and discuss all of the above.

    Very interesting, very wortwhile to understand.

    But the reality of the matter is that stuff is all minor.

    You can shave a few points here and there, but the real problem is there wasn’t enough money to spend on getting out the vote. [G.O.T.V.]

    In most cases, and Prop 19 being one of them, how well the folks on either side motivate people to physically get out and vote is key.

    Direct Mail.
    Phone Banking.
    Any way one can personally reach out and directly touch folks.

    TV, radio, yard signs, all signs of people with too much money and not enough planning.

    Especially for pro-freedom causes, because we can’t get union or corporate money, normally.

    The Police Union in Orange County (AOCDS) endorsed Democrats up and down the State, and only had one real recommendation on the Proposition.

    Yeah, Orange County, one of the most friendly to personal freedom Counties in California, the cops there, whom you would think would want to focus on something else, their UNION asked them to vote NO on 19.

    Now don’t get me wrong.
    Most of the copper I know, the guys who drive a car and come to your house if you need help, those guys want pot legal for adults.

    They are totally not interested in rousting smokers, regardless of if they have cancer or not.

    But their UNION spent big bucks pushing them to vote NO.

    Think GOTV.

    No matter what you are voting on.
    No matter what system.
    No matter if it’s for the LP Chair of Sacramento County or for Prop 19, or Steve Kubby for City Council, it’s all about getting out the vote.

    Any sane, properly groomed, nice Candidate who shows up and has a good GOTV effort will probably win.

    Even if they are a Liberhooligan.

    The same thing for a Proposition.
    That’s why California voters have passed so many bad ones!

    Get out the vote.

    Libertarians need to learn that in a race, the only thing that matters is how many points you put on the board, what your time is, what your score is…

    Get Out That [damn] Vote, people!

    If we want to make a difference, and it’s not only for Libertarians or pro-freedom issues, but any person involved in politics, how many checkmarks you can turn out next to your thing that the Registrar of Voters will report to America the next day…

    That’s ALL that counts.

  10. paulie

    Bruce…good point.

    GOTV is very, very important.

    Campaigns with limited funds need to use every possible means of identifying their supporters’ names and contact information and getting them to the polls. Even if they have to give them a ride!

  11. Gene Trosper

    Bruce has it right. GOTV is extremely important. In the campaigns I organized back in the 90’s to defeat bond measures (each time successfuly, I might add!), there was a focused effort to identify voters and then get them to the polls.

    All the door hangers, yard signs, news releases, and fancy photographs don’t mean a thing if you can’t get supporters to cast votes in your favor.

  12. discusted

    Understand that prop 19 only failed by less than 5% of the voters. Which strongly indicates that if presented even in its current state in 2012 would pass without difficulty due to the much larger voter turnout.

    The necessity to pander to the financial interests, I do understand, was a mistake but not that drastic of one. The open ended language and failure to exclude throughout the prop sb215. Every time I raised this point I got poopoo stating that in this section so-n-so it excludes 215, my argument was simple, yes in that section it does but not in all sections. what ever section did not have the exclusion of sb215 then sb215 was not excluded.

    I would be willing to lend a hand on the national reduction of MJ from cat 1 narcotic down to cat 5.

    The complete decriminalization of Cannabis is the only true answer. Regulation is the natural followup, which would ultimately include some kind of taxation. That is the society we live in.

    The debate must continue, the research by independent labs and those results published. Squash mis representation, mis information, and the poor misguided masses that stand on the position “it was in the paper, it must be true.” or “the surgeon general says it is terrible drug and must be illegal.”
    “there is no excuse for ignorance and no cure for stupidity.”

  13. David F. Nolan

    Many good points here, by various people. But IMHO, the low turnout by younger voters vs. the higher turnout by older voters is by far the main reason Prop. 19 failed. In the future, marijuana must be “sold” to older voters (my age group!) on the basis of relief for their aches and pains. Anyone suffering from arthritis should be open to the idea of ending that suffering!

  14. Amanda

    I am so thankful that you posted this. It’s very true. I know many marijuana supporters who were not in support of this bill because as you said it was “ill conceived”. I was turned off when I found out about the added regulations and taxation.

    I’m happy that it was on the ballot, because I think it will change the public’s view on marijuana use, but I am glad it did not pass.
    I hope, as you do, that the next prop will be direct and to the point. The regulations would not be worth the legalization, and I have to say I am very pleased with prop 215. It has been a step in the right direction.

    Come 2012 we’ll have a better prop and the public will be more involved and ready to pass it.

  15. Legalize 2012 Campaign

    Get involved in the real grassroots effort to put an initiative on the ballot in Colorado: Legalize 2012.

    Models to Relegalization

    There are two models to cannabis relegalization: the Law Enforcement Model (fear-based) and the Practical Model (freedom-based). Colorado’s poorly-written medical marijuana initiative was based on the Law Enforcement Model. This resulted in a new branch of law enforcement dedicated to fingerprinting & videotaping patients and tracking every gram of cannabis from “seed to sale.” This model regulates cannabis tighter than alcohol or any other substance. The Legalize 2012 Campaign favors the Practical Model, where any adult 21 or over needs to show only their driver’s license to purchase cannabis. It is regulated equally or less-restrictively than alcohol. It is subject to the same sales tax as any other retail product. The Legalize 2012 Campaign is currently forming an advisory board & ballot initiative language committee.


  16. Clifton Middleton

    Free Market Hemp was the economic foundation of the Colonial Revolution and can be again. I am an advocate for FMH for the same reasons our forefathers were, life, liberty and the pursuit of happiness. The Tea Party is for FMH.
    Hemp can replace foriegn oil as a source of fuel, medicine and inspiration. Plant It Everywhere

  17. bong_jamesbong2001

    I read Kubby’s analysis with mixed feelings, some good, some bad.
    His good points are that 18-21 year olds should have been legalized. They were victimized by the Referendum as it was, and I would have been pissed off if I had been that age. If its good for a 21 year old, its good for an 18 year old. This was a bone thrown to prohibitionists who claimed that the brains of younger tokers are damaged by cannabis. This is just crap thinking on the Prop. 19 people’s part, and it should never again be part of our proposed referendums. I don’t see anyone’s brains being damaged by cannabis. And I especially do not see giving prohibitionists the least say as to what goes into the next proposition for cannabis legalization; that just gives them a chance to fuck it up, which they did brilliantly this time around.
    I don’t think that putting the question in a mid term election made much difference. There actually may have been more money available for the campaign during a midterm election than would be had during a Presidential election year. And, as other journalists have pointed out, cannabis legalization became a legitimate political question and got lots of attention that it would not have with a huge presidential campaign going on around it. Cannabis legalization is now a valid political topic everywhere, and it will not go away unless we sit by and do nothing.
    Polling: I watched this question from jump street, and up until September, we had outstanding poll results, and everyone was saying that nobody would change their minds on this question, one way or the other. It looked like a near thing, but a real thing. Then bad polls started coming in, especially near the election date. You can scroll down to the article about money contributed, as listed by the California State Secretary of State’s office: Pro Prop. 19 forces got TEN TIMES the amount of money that the prohibitionists put into the campaign against them. So what happened? Either a lot of money got wasted, or it even disappeared. Nobody can say the electorate was bought by money on this question. Did we buy a bunch of crap polls?
    We saw a lot of scare tactics done just before the election by the prohibitionists which were not answered at all by our side, though we could have easily and convincingly refuted this crap. We need to familiarize ourselves with the science and studies involving driving and cannabis and hammer the prohibitionists with the TRUTH. We also need to have our own ringers show up for driving road tests, stoned, so that the prohibitionists don’t get the publicity they got from the two canned journalists they let take the test stoned. They certainly did not take a standardized road test such as would be given to applicants for a driving license.
    Taxation: Kubby gives it the thumbs down AFTER the election. He is right; we didn’t need the issue for Prop. 215 and we don’t need it now. But the time of Prop. 215 was in a whole different economic climate from what we see now, and the taxation angle was not a bad gambit to attract a good number of neutral-thinking people to our side at a time when California desperately needs money. I was against taxation, and still am, but purely out of malice towards prohibitionists. I think the next bill we need to put a definite CAP on the proposed level of taxation in the referendum question, if we allow taxation at all, just to prevent the prohibitionists from highjacking the tax money or taxing the bee-jesus out of cannabis to make it prohibited through the back door strategy of excessive taxation.

    Despite some disagreements with Steve Kubby’s analysis, he brings up some good points, so hats off to him. We all need to discuss the results among ourselves, learn the bitter lessons, and come back better prepared next time. Cannabis is here to stay as a political question. Progess seldom comes at the first possible election; women’s sufferage took 100 years to get passed in some places, but who would go back and take away the vote from our female friends and relatives? TIME, and the TRUTH, are on our side.

  18. Gains

    In 1972 Proposition 19 to decriminalize marijuana got only 34% of the vote in California.

    In 2008 Proposition 5 that only reduced simple possession from a misdemeanor to an infraction only got 40% of the vote.

    In 2010 Prop 19 managed to do in only one election cycle what the movement had fought to do for the 36 years before. In that two year battle, the efforts of many people moved public opinion 6 massive points; and forced the state legislature and governor to effectively pass the failed Prop 5 when they decriminalized pot to an infraction.

    Proposition 19 missed total success by only 4%. The momentum from the hard work of many people, and many Libertarians, paid off in spades, and helped set the stage for an easy victory in 2012.

  19. Sandsconnect

    They will never get the conservative vote if the rule states you can’t drug test a work. Better off passing it without that and then amending the law down the road once everyone realizes it’s irrelevant. I would propose an 19 age as well if high schoolers have access the parents will become fanatical.

  20. paulie

    There was never any provision that employers can’t drug test, that was prohibitionist propaganda.

    Employers should, of course, be able to enter into any agreement with employees that both sides willingly agree to.

  21. Gains

    The press in California was negative on 19 until the campaign had advertising money. Had funds come in just a week earlier, there may have been more middle of the road support with less hostile press.

    Employers having the right to deal with incompetence could have been better addressed in the campaign, but with the budget they had, all in all, it was a very productive effort. Good lessons for 2012.

  22. Single Winner Districts = Neanderthal Attractor


    I agree with David Nolan, young voters were ignored. In case anyone didn’t notice, the US Parliament, Inc. has been registering voters with the Pot Party and Marijuana Party since 1997 under the “all party system”.

    We welcome cooperation and coordination from all people, but very few have cooperated.

    I don’t know the affiliations of the prop 19 camp, Richard Lee [Info. Not Avail.], Chris Conrad [Democratic?] and Mikki Norris [Green?], but like many of the dictator types (i.e. “Neanderthals”) who were running for office, there was no communication or cooperation with the Free Parliamentary/Pot/Free and Equal Parties.

    There was no voter registration and conciliatory language for all parties and independents.

    That’s what I see as the biggest problem for not getting prop 19 passed. Everyone turned into “meanies” when I’d give them a call or an email. They said they “weren’t interested” in The USA Parliament, Inc.

    Those who consider themselves Libertarian were among the worst self censoring fanatics.
    I hate to use the word rude jerks, but how else can I describe people who are mean spirited, censorious, hypercritical and dictatorial?

    I had offered to help, and they treat you like you’re some sort of leper, answering polite inquiries with rude, arrogant snarls and insults.

    The candidates and campaign managers alike, acted like they knew everything and didn’t need any part of “no all party team effort”.

    I might throw out a bit of name calling, to describe them, but I’m here to answer any response. I love to converse, if anyone wants to email or call, I’m readily available. I’m not like the aloof snobs.

    Join the Frees,
    opposite gender #1!

    “Why do you THINK they called it Google?”

  23. Single Winner Districts = Neanderthal Attractor

    The 6th California Parliament’s ruling coalition dropped its endorsement of Prop 19, and preferred that each voter vote on the issue as individuals without the endorsement of the coalition of seven.

    You can click the link below to see the names of the COOL candidates, the ones who DID work together, based on votes cast as proof.

    Comprehend, votes cast as proof? Do you have a better tool for multi-parties to work together?

    An attempt was made to contact all 42 partisan candidates for the multiple openings for state office, and names of the team players who voted on the eballots are linked in the web page below;

    At one time, an email loop of 28 of the 42 candidates existed, and eleven of them remain connected via email up to now.


  24. Richard Steeb

    Indeed, counting on the 18-21YO voters to make themselves a pariah seems foolish in retrospect. The “adult” age should have been specified as 18 in the first place.

    And sin-taxes connote a “sin”– which is particularly offensive given the fact that the prohibition of earth’s most beneficial plant is the prime abomination.

    We shall overcome this crime against humanity and soon. Bank on it.

    -Richard Paul Steeb, San Jose California

  25. kevin iden

    Folks we need to take a strong look at the concept of “Decriminalization” Some of us activists in Co. are starting to smell the wisdom of this “rational”and obvious concept.

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