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Prop. 19 goes up in smoke

By Dean Schaffer | 2 Nov 2010

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Staff writers Lindsey Forte, Shaun Stehly, Amanda Schwab and Kelsey Williams contributed to this article.
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Prop. 19 would not directly affect medicinal marijuana, like the sample shown here from Northern California Natural Collective, a San Jose dispensary. (Photo: Dean Schaffer)

After gaining a wide lead last month, Proposition 19 was defeated yesterday by a handy margin. Vote counts showed the proposition losing by an eight-point margin, with 46 percent in favor and 54 percent opposed with 98 percent of precincts reporting. Prop. 19 would have made California the first state to legalize the possession and sale of up to one ounce of marijuana. An official statement released by the Yes on 19 campaign vowed to “come back with a new initiative in 2012.”

By rejecting the proposition, California voters avoided a potential head-on collision with federal law. Marijuana remains illegal on a federal level, and Obama’s administration vowed not to give precedence to Prop. 19. Last month, the Associated Press obtained a copy of a letter from Attorney General Eric Holder to former federal drug enforcement chiefs, in which he stated that the government would “vigorously enforce” federal laws against marijuana regardless of whether Prop. 19 passed or not.

Roger Salazar, a spokesman for the No on 19 campaign, pointed to this legal dissonance as a serious flaw in the proposition.

“Even if it were to pass, you still have a federal problem,” he said. “More of a concern to us is if the federal government comes in and sues the state of California or withholds federal funds,” he said. “I don’t think it’ll be pretty for California.”

One Palo Alto voter, Veronica Kornberg, said this potential conflict swayed her vote. “I voted no, even though I am in favor of legalization, because it will just go to the Supreme Court,” she said. “The Supreme Court will just get into states’ rights, and I just don’t want it to go there.”

Although possession of less than one ounce of marijuana will remain illegal, Governor Schwarzenegger signed a bill on Sept. 30 that downgraded the offense from a misdemeanor to an infraction punishable by a $100 fine, effective on Jan. 1, 2011. Santa Clara County Supervising Deputy District Attorney Frank Carrubba noted that this bill essentially deflated proponents’ arguments that Prop. 19 would save money on law enforcement costs. “There’s really no difference between [possessing less than an ounce of marijuana] and getting a speeding ticket, as far as the resources that it takes for a police officer to handle it,” he said. Carrubba also noted that cases involving only possession of an ounce or less are extremely rare, since this charge generally accompanies other, more serious charges, like burglary.

John Faulk, also known as Kool John, takes a deep breath as he waits for Prop. 19 results at the Oaksterdam University viewing party in Oakland. (Photo: Amanda Schwabb)

Carrubba anticipated additional attempts to legalize marijuana in the near future. “I wouldn’t be surprised if another [initiative] rolls around,” he said. Lauren Vazquez, Silicon Valley chapter director of the medicinal marijuana advocacy group Americans for Safe Access, said she has heard rumors that pro-legalization advocates may try again with another initiative in 2012, but no one knows for sure.

Yesterday’s vote marked the culmination of two campaigns with very different visions of how the initiative would affect the state.

Proponents focused on economics, arguing that legalization is just what California needs in its current budget crisis.

“Keeping marijuana illegal makes it impossible to tax a $14 billion industry in California simply because it’s illegal,” said Joseph McNamara, current fellow at the Hoover Institution and the former San Jose chief of police.

According to the California Board of Equalization, medicinal marijuana, which has been legal in California since voters passed the Compassionate Use Act in 1996, has generated somewhere between $58 and 100 million in sales tax annually. Because Prop. 19 did not outline a specific tax rate, the Board was unable to estimate potential sales tax revenues for recreational marijuana.

Additionally, supporters pointed to potential savings in law enforcement.

“The current marijuana laws have obviously failed,” said Tom Angell, a spokesman for the Yes on 19 campaign. They don’t prevent anyone from using marijuana and waste immense resources to enforce those laws.”

Palo Alto voter Elsbeth Newfield agreed. Prop. 19 will “keep the police from being diverted to unnecessary work,” she said. “They’ll be able to focus on real criminal elements, and I feel that the taxes that result from it will be worthwhile for the state.”

Opponents, however, countered that Prop. 19 would not achieve these goals.

“It’s pretty simple,” Salazar said. “The initiative doesn’t do what it says it’ll do,” he said, pointing to the fact that the proposition did not include a specific regulatory scheme or tax plan.

Keith Humphreys, a professor at Stanford’s School of Medicine and former senior drug policy advisor to President Obama, also pointed to the possibility of increased marijuana use if the proposition passed, “particularly among young people, the unemployed and other groups who have less disposable income,” he wrote in an email. In addition, he said, it would spawn “a new industry parallel to the tobacco industry” that would “attempt to generate more addiction in order to make more money.”

Opponents by and large did not raise moral arguments against marijuana consumption, pointing instead to what they say is simply a poorly written bill.

“If the initiative were a straight-up legalization issue,” Salazar said, “there would be room for a moral argument. But the thing is so poorly written that we can’t even get that to point.”

Regardless of the election’s outcome, medicinal marijuana patients can continue to obtain medicinal cannabis through dispensaries. Some medicinal advocates favored the proposition, but others had their reservations. Vazquez said that the proposition was “not perfect, but a step in the right direction” since California “can’t afford prohibition [of marijuana] anymore.”

The vote marked the culmination of flip-flopping polls. In September, most polls showed Prop. 19 with a strong lead of between 7 and 11 percentage points, but more recent polls suggested an abrupt drop in support. A CNN poll released on Oct. 27 predicted that, among likely voters, 45 percent would vote in favor of Prop. 19 while 53 percent would vote against it. Other polls indicated an even larger gap.

On closer examination, the picture becomes even more complex, perhaps due to what Nate Silver, a polling analyst for The New York Times, has dubbed the “Broadus Effect.” Named after pot culture icon Calvin Broadus (more commonly known as the entertainer Snoop Dogg), the Broadus Effect reminds Silver of a polling trend in California’s 1982 governor’s race, in which voters told pollsters they would vote for African-American candidate Tom Bradley to avoid appearing racist, but then voted for his opponent on election day.

Midday exit polls by the Peninsula Press at this polling place, the First Lutheran Church of Palo Alto, showed a strong voting trend in favor of Prop. 19. (Photo: Amanda Schwab)

The Broadus Effect similarly suggests that because marijuana use carries a social stigma, poll respondents are less likely to tell a human pollster than an automated system that they will be voting in favor of Prop. 19. Indeed, according to poll data on TalkingPointsMemo.com through Oct. 31, automated polls showed Prop. 19 down by three points, with 47.7 percent opposed and 44.7 percent in favor. Telephone polls, on the other hand, show a larger gap of 50.9 percent opposed, 43.2 percent in favor.

Despite the drama of the race’s polls, Prop. 19 drew much more publicity than funding, even with billionaire George Soros’s $1 million donation supporting Prop. 19 on Oct. 26. According to the California Secretary of State’s website, supporters donated almost $4 million, thanks largely to contributions from Soros, Progressive Insurance Companies Chairman Peter Lewis and Oakland’s Oaksterdam University founder Richard Lee. The No on 19 campaign raised only about $315,000 this year. In comparison, Proposition 27—the most funded initiative on the ballot—garnered a total of more than $17.6 million in contributions.

California first attempted to legalize marijuana in 1972 with an initiative that was also called Proposition 19. According to the California Ballot Initiatives Database on the University of California Hastings College of the Law’s website, that initiative would have decriminalized the possession but not sale of marijuana. It failed to pass by a 2-to-1 margin.

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