Ready to light up? Not so fast
By Tim Merris -
Colorado voters on Election Day approved Amendment 64 by nearly 55 percent of the votes, joining Washington as the first states in the nation to legalize marijuana use, possession of up to one ounce, authorization to grow up to six plants per residence and made way for retail sales.
So, let’s get out in the garden, open up retail pot shops and openly light up that joint whenever or wherever we feel like it.
Not so fast. There are many things to consider. For instance, the law will not take effect until Gov. Hickenlooper signs off on the vote, a process that could take a month or more. Until then, it remains illegal to possess any amount of marijuana in Colorado absent of medical-marijuana approval.
In a statement this week, local U.S. attorney’s office spokesman Jeff Dorschner said, “In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiative and have no additional comment at this time.”
Hickenlooper also had this to say, “Some people think there’s going to be big shops, and there’s going to be large (growers). It’s hard for me to imagine that happening and having big pot shops if the federal government still views it as illegal.”
Hickenlooper also said that state lawmakers will have to consider what the federal response will be as they look forward to defining how regulations will impact marijuana stores. The target date for those regulations to be in place is Jan. 2014 for those regulations to be in place and that leaves only one legislative session to work out the details.
The biggest obstacle will be the ultimate stance by the feds. The Supremacy Clause of the U.S. constitution holds that all federal laws trump state laws unless the federal law is unconstitutional. The process of a federal law overriding a state law is known as “preemption.” Of course the law is much more complicated than that, but preemption can take precedence.
What this means is that the federal government can step in and order the states to cease and desist the sale, possession of, and growing marijuana for other than lawful medical use.
There will be many discussions and rulings over the next year which will see lawmakers work toward some sort of compromise between the two parties involved.
Then there is the misunderstanding regarding the collection of taxes. Many of the voters now feel duped. They believed that by passing Amendment 64, it would allow for the first $40 million in tax revenue to go toward a capitol fund for Colorado schools.
Colorado Attorney General John Suthers said the 15 percent surtax on marijuana is not guaranteed, as proponents of Amendment 64 led voters to believe. In a written statement he said “Amendment 64 did not comply with required language under the Taxpayers Bill of Rights and no such tax will be imposed. Instead, it will be up to Colorado Legislature whether to refer such a tax to the voters, and up to the voters of Colorado whether to actually impose the tax.”
This leads to an interesting conjecture on my part. If the Colorado voters were made aware prior to the election that passing Amendment 64 would not guarantee additional tax revenues for the schools, would the measure have passed? On one hand you have the recreational pot user who saw the amendment as an easier way of procuring their stash and alleviating the fear of violating the law and thus would have voted yes unconditionally. The voters that have never used pot nor do they plan to, but only saw this as a vehicle to increase school funds, would most likely have voted no. Therefore, I believe 64 would have been defeated.
Mesa County voted down the amendment and from the folks I spoke to, it was more the fear of children having easier access to pot than for any other reason.
Now take away the premise that it would generate much needed tax revenue and I believe even the majority of yes voters would have given it much more consideration and ultimately voted it down sighting no real advantage to the average non-using citizen.
Now that being said, it would be reasonable to assume then that if and when the tax issue is brought before the voters in 2013, it should have no problem passing.
So, it goes back to the feds and what their next step will be. Will there be initiatives to overturn the federal law? We do have a democratic senate and president. However, only two states have passed the state amendment so far and others have voted it down.
Stay tuned and don’t rush out looking for a legal score just yet. You may have some time on your hands.
Reach Tim Merris at