Massachusetts Copies Oregon’s Separate-and-Unequal Pot Compromise

Photo by Vortex Farmacy

\What is the point of a statewide initiative if your town gets to ignore it?

That’s the question we must ask once again as marijuana proves to be the issue too hot for democracy.

In 2016, the people of Massachusetts voted on Question 4 to legalize marijuana, passing it with a 54 percent majority.

They didn’t walk into a legalization vote unaware, either. Colorado, Washington, Oregon, Alaska and Washington, D.C. had already legalized. There were five different templates to choose from. The authors of Massachusetts’ legalization took their lessons from those states, kept the best ideas and wrote them into Question 4.

Two of those ideas for legalization were to keep the tax rate low and to require a vote of the public to ban licensees (read: pot shops) within a town.

The low tax rate was a lesson Massachusetts picked up from observing the other states. In Washington, where taxes are highest (and home-grow is illegal), an unregulated underground marijuana market still thrives. Media reports about operators of legit pot shops chasing unregulated, independent weed dealers out of their parking lots where they had been poaching arriving customers and undercutting the taxed price of marijuana illustrate the point.

The people of Massachusetts said “yes” to a national-low tax of 12 percent, total, on marijuana purchases. So, when it came time for the legislature to craft the regulations governing newly-legalized marijuana, the House decided the people were idiots and set the tax rate at 28 percent.

Why 28 percent? They claimed they needed to raise that rate to guarantee the regulation of marijuana would pay for itself. Because, somehow, governing marijuana in Massachusetts must be much more expensive than governing marijuana in Oregon, where the tax rate is 20 percent, total, and the state is swimming in marijuana tax revenue

The Senate, on the other hand, figured that when 54 percent of the people of the state vote for something, that ought to carry some weight. They approved the original 12 percent total tax voted for by the people.

To solve this disparity between the Senate and the voters vs. the House, a compromise was reached that splits the difference—eight points lower than the House and eight points higher than the Senate—to set the state total marijuana tax rate at 20 percent.

Whether intentional or not, Massachusetts’ new tax mirrors Oregon’s.

In both states, the state tax man is collecting 17 percent of the take and the localities get a three percent incentive to allow pot shops to open.

The people of Massachusetts also voted that if a town wants to ban a pot shop, it needs to take a vote of the people of that town to decide the matter.

The Senate agreed with the majority and kept that provision intact. The House, however, decided that the voters of the state were too stupid to decide whether there are pot shops in their town. Instead, the House decided that a town’s elected officials, by a vote that could be as small as two-to-one, should be able to decide on pot shop bans without a vote of the people.

To solve this disparity between the Senate and the voters vs. the House, a compromise was reached that allows a town to ban pot shops through a vote of its elected officials, if that town voted in the majority against the statewide legalization initiative.

There are 351 incorporated towns in Massachusetts. There are 91 of them that voted against the initiative. For the voters in those towns who voted along with the statewide majority, they have had their right to direct democracy stolen from them by the House.

If anything, this compromise is a worse outcome than if the legislature had just stuck with the House’s version. If everybody’s right to address local pot shops through a vote was stolen, at least you could say the state is only ignoring the will of the voters.

But by allowing only the pot-hating towns to have this privilege to ban without public votes, Massachusetts has established a precedent that it not only ignores a statewide majority, but it caves to a local minority. Massachusetts has established precedent that if locals really, really don’t like a statewide issue, they can throw a temper tantrum and the legislature will give them special rights to flout the will of the majority.

This, too, is another mirroring of Oregon.

In 2015, after we’d passed legalization, the rural, conservative Eastern counties of the state complained that they had just had an election in 2014 on pot, and they voted against it. Why, then, they argued, should they have to have another election to ban pot shops? Members of the House in Massachusetts made similar arguments. Why can’t the places that have already indicated they hate pot be allowed to just ban it through the city council?

Well, besides the fact that the majority of the voters said so, it’s because those are two completely different questions.

When marijuana is illegal, nobody can grow it, possess it or sell it legally. You might hate pot and decide to vote no to keep the status quo.

Once marijuana is legal and everybody can grow it and possess it, the question’s frame changes.

No longer are you voting no to all marijuana. Now that pot’s legal, you’re voting as to whether your town should at least cash in from the sales of it. You’re now voting whether there should be storefront competition to every local weed dealer who can now cultivate and possess without penalty.

In Oregon, our legislature stole that decision from the people in counties that had voted over 55 percent against the initiative. In Massachusetts, their legislature stole that decision from the people in 91 towns that voted over 50 percent against the initiative.

Do the towns in Massachusetts that voted against Gov. Charlie Baker get to ignore his executive orders? Do the towns that voted against another initiative, Question 3, still get to sell eggs, veal and pork from animals confined in cages too small to turn around in?

Or is it just marijuana where statewide votes don’t count statewide?

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