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“MI Legalize” Files 2016 Initiative Petitions to Legalize Adult Use of Marijuana in Michigan, Legal Hurdles Remain

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“MI Legalize” Files 2016 Initiative Petitions to Legalize Adult Use of Marijuana in Michigan, Legal Hurdles Remain

On Wednesday, June 1, 2016, “MI Legalize” submitted petitions to the Michigan Board of State Canvassers for a 2016 ballot initiative that would legalize the adult use of marihuana. For an initiated law, the Michigan Constitution requires that a ballot question committee obtain 8 percent “of the total vote cast for all candidates for governor at the last preceding general election.” This year, that requires 252,523 signatures.

In addition to the constitutional requirement, Michigan law provides that signatures obtained more than 180 days before petitions are filed are “rebuttably presumed” to be stale and void. Board of Canvassers policy provides a method to rebut that presumption, but MI Legalize, and others, contend that the policy is functionally unworkable. The Board has been presented a staff proposal to change the policy in a manner that staff suggests would make rehabilitating signatures easier, but has not acted upon it. 

While the Board of Canvassers was considering the proposed policy change, the legislature passed SB 776, which would change the underlying statute to remove the rebuttable presumption and simply provide that any signatures gathered more than 180 days before filing are void. Although the bill was given immediate effect, it was not presented to the Governor by the Senate until June 1, and it does not appear to have yet been signed. If SB 776 does go into effect, MI Legalize may be able to avoid its application by having filed before the change in law takes place. But MI Legalize still will face the Board’s policy requiring rehabilitation of older signatures.

According to a letter MI Legalize submitted with its petitions, MI Legalize submitted approximately 354,000 signatures, with what appears to be roughly 162,000 gathered within the 180-day window. They reported also submitting 137,000 older signatures with information attempting to rebut the presumption of staleness. Those 299,000 signatures, if valid, would put them over the threshold—but is a relatively thin margin given that some petitions and signatures inevitably fail to qualify due to technical defects or supporters signing more than once. (The remaining signatures are older than 180 days and do not appear to have been “rebutted.”)

Based on statements made at Board of Canvassers meetings, it appears that MI Legalize will file suit in federal court challenging the Board’s policy on rehabilitating signatures, and possibly challenging the underlying law as well. Separately, the Committee to Ban Fracking in Michigan, an anti-fracking petition group which has come up short on its signatures, filed a lawsuit in the Michigan Court of Claims on June 1 challenging both the current law on older signatures and SB 776. These court cases will ultimately play a prominent role in determining whether MI Legalize’s petitions survive and see the ballot this fall, although more garden variety challenges to the form of the petitions and validity of signatures could also materialize.

Substantively, MI Legalize would allow those over the age of 21 to possess and consume marihuana. The measure would allow municipalities—rather than the State—to regulate the licensing of marihuana facilities. Municipalities would be able to opt to prohibit marihuana facilities entirely. The only role for the State would be to enact rules concerning hemp cultivation and procedures to collect an excise tax of 10 percent on sales to consumers. MI Legalize would also allow personal cultivation of marihuana. Individuals would be permitted to grow 12 plants. The initiative does not name maximum plant size, but does specify that any plant under 12 inches tall or 12 inches in diameter does not count toward the total number of plants an individual is allowed to possess. Other significant, more technical, portions are included as well. 

Of note, petitions for a competing ballot measure proposed by the Michigan Cannabis Coalition were not submitted. That measure would have centralized regulation at the State level. Had both measures made it to the ballot, it may have been difficult for either to win. The Michigan Constitution provides that where conflicting initiated laws are on the ballot, the one that receives the most votes prevails. Unfortunately for the two groups involved, they would have still needed to obtain a majority approval. If voters had been presented a choice between two very different legalization frameworks, it is quite possible that many voters may have chosen to vote for just one, denying both the majority needed to pass. 

In the coming days, we will have more analysis of MI Legalize’s proposal, and of the MI Legalize “battle for the ballot,” which could have radical impacts on the marihuana landscape in the Midwest at the same time as Ohio and Illinois are moving to liberalize their own policies. (MI Legalize’s own take on the issues may be found on their web site.) For more on all of this, check back in with the Cannabis Law Blog.