After a tricky run in the New Jersey Legislature, the question of legalization of marijuana for all adult use is coming to the people in the form of a ballot question on Nov. 3, 2020. Given the uncertainties in the state due to the coronavirus, the slow and cautious move toward reopening, and questions regarding a potential return of the virus in the fall, how robust will voting be? The state is taking measures to ensure that every New Jersey voter will have the opportunity to exercise his or her right to vote in November, whether that vote will be cast in person or by mail.

Background

In May 2017, State Senator Nicholas Scutari introduced a measure to legalize adult use marijuana, including limits on personal possession of cannabis products, a ban on home cultivation, and a progressive state sales tax with annual increases up to 25%. Then Republican Governor Chris Christie opposed the legalization efforts, but after the election of Democrat Governor Phil Murphy in 2018, legalization was back on the table, with multiple competing proposals. The New Jersey Marijuana Legalization Act, introduced on June 7, 2018, would have, in its final form, allowed adults over 21 to possess up to one ounce of marijuana, and imposed a $42 per ounce excise tax and local transfer or user tax to be determined.

State lawmakers tried for more than a year to pass the bill, but fell short of votes in the Senate. It appears that there was momentum in favor among the Democratic majority, but the devil was in the details. There was debate over issues of expungement of criminal records, how to tax the sales, proper awarding of licenses for new business, and potential negative impact on communities. Certain legislators had consistently opposed legalization because of fear of impaired drivers, increased crime, and a general concern over public health issues.

Legalization Put to a Vote

On Dec. 19, 2019, both the Assembly and the Senate voted in favor placing the legalization question on the ballot on Nov. 3, 2020, as follows (requiring a "yes" or "no" vote):

Do you approve amending the Constitution to legalize a controlled form of marijuana called "cannabis"? Only adults at least 21 years of age could use cannabis. The State commission created to oversee the State's medical cannabis program would also oversee the new, personal use cannabis market. Cannabis products would be subject to the State sales tax. If authorized by the Legislature, a municipality may pass a local ordinance to charge a local tax on cannabis products.

• Will New Jersey Avoid the Mistakes of Other Adult Use States?

Concerns have been raised that the brevity of the ballot question fails to capture the many nuances presented by adult use cannabis. The proposed amendment leaves open-ended all issues related to licensing, distribution, tax rates, social justice and equity, combating the illicit market, insurance requirements and more, instead mandating the state legislature to work out these critical issues after the vote. Several of these issues were implicated in the failure of the 2019 adult use bill in the first place. But if the ballot initiative passes, the will of the people will be clear and the state legislators will be forced to work together to hammer out a plan to make marijuana available to all adults over 21 in New Jersey.

Early states that legalized adult use cannabis through a ballot initiative followed by voter-mandated legislation made costly errors that can be avoided in New Jersey. Until federal legalization allows for some level of interstate commerce, every legalized state is a self-contained market with a unique supply-and-demand environment formed by the state licensing structure, regulatory oversight, tax rates and engagement by city and county governments. Limitations imposed by localities on the number and location of licenses, on "vertical" licenses that allow commercial activity from cultivation through sale to consumers, and through social equity priorities, have a profound impact on the barriers to entry and the success of any state's model. How well a state market functions in turn drives the capital markets within those states, which allow cannabis operators to raise money outside traditional lending and financing through banks and other regulated financial institutions. Successful state cannabis models have sought to strike a balance between limited licenses and social equity priorities without imposing unreasonable barriers to entry and growth that freeze fundraising. The New Jersey Legislature and the proposed commission should be mindful of striking this balance.

• Will New Jersey Turn Out to Vote?

According to the Nov. 18, 2019, press release from Senator Scutari and Senate President Steve Sweeny, the November 2020 ballot date was specifically targeted, as "voter turnout will be maximized for the national election." A looming concern now is whether New Jersey will turn out to vote given social distancing restrictions and a potential second wave of COVID-19 in the fall. In the 2018 election, 88% of votes were cast in person, according to the federal Election Assistance Commission.

Unlike most other states, however, any registered voter may vote by mail in New Jersey with no special requirements or limitations. The ballot for voting in person and by mail is identical. Although the voter typically must apply via a Vote-by-Mail application by a first deadline, and must mail in the completed ballot by a second deadline, these requirements could be suspended or altered for the November 2020 election.

The state currently is scheduled for a dry run in the form of the primary election, which has been postponed until July 7. On May 17, Governor Murphy announced via Executive Order 144 that the primary will be conducted principally by mail, with most voters registered as Democrat or Republican automatically receiving a ballot by mail. All other registered voters will receive a ballot application. All of these will have prepaid postage, a significant expense to the state, but the traditional sample ballot will not be sent for this primary election. The Executive Order does not require voting by mail, but allows the voter the option to vote in person. Each county is directed to establish at least five secure ballot drop boxes, and to open at least one polling place in each municipality for a minimum goal of 50% of all polling places for in-person voters on July 7. Those polling places are directed to follow certain safety guidelines.

Projection for the Vote and the Outcome

In these times, vote-by-mail may result in higher overall turnout. Wisconsin's governor tried and failed to stop in-person voting in that state's April 7, 2020, primary. According to reports, voters waited as long as two and a half hours in Milwaukee, which could open only five polling places due to a lack of workers instead of the 180 it normally offers. In Milwaukee, more than 56,489 absentee ballots were cast compared with 18,803 ballots that were cast in person. Approximately 1.3 million voters had requested an absentee ballot throughout the state, but with that large volume and the short time frame, some were not sent to or received by voters in time for the primary.

No announcement regarding vote-by-mail for the November 2020 election has yet been made, and the decision could turn on what happens with the July 7 primary and status of the pandemic in New Jersey leading up to November 3. However, there is no reason to believe that New Jersey voters will not be motivated to vote by whatever means are available.

• Polling Results Bode Well for Legalization

An April 2020 Monmouth University Poll of registered New Jersey voters showed that 61% would vote in favor of cannabis legalization in November, and 34% would vote against. Per the poll, support comes from 74% of Democrats, 64% of Independents and 40% of Republicans. In fact, according to the same Monmouth Poll, legalization is more popular in New Jersey than either presidential candidate, Democrat Joe Biden (54%) or Republican Donald Trump (38%).

The April 2020 Monmouth Poll was conducted by telephone between April 16 and April 19, 2020, shortly after the New Jersey shutdown began. When asked how likely voters would be to vote in November, 81% said that they were certain to vote, 15% said they were likely to vote, 4% said they were not sure and 1% said they were unlikely to vote. The question made no distinction between in-person voting and vote by mail. No questions from the survey addressed vote-by-mail.

Turnout in November will be driven primarily by the presidential election, as recognized by Senators Scutari and Sweeny when placing the legalization question on the ballot for Nov. 3, 2020. It appears that New Jersey is prepared to be flexible in facilitating the ability of all registered voters to vote, and is working toward promoting maximum turnout in November by spending the money necessary to facilitate vote-by-mail and planning for ease and safety at the polls.

Conclusion

The April 2020 poll results demonstrate that support for adult use legalization is strong in New Jersey, and that the support does cross party lines to some extent. Whatever the turnout in November, the results on the legalization question likely will not differ from the April 2020 poll results, which would result in the measure passing. But that leads to a more important question —what comes next? It will be up to the Legislature to answer that question and to hopefully employ lessons learned from other adult use states.

Katherine Tammaro is a partner in the Cannabis and Insurance Coverage practices in the New Jersey office of Wilson Elser.