The future of legal cannabis in Virginia is even more uncertain after an election last week that replaced the commonwealth’s pro-legalization Democratic governor with a Republican who is skeptical about the issue and gave the GOP control of the state House of Delegates.
Possession, personal use and home cultivation will remain legal under a law that already took effect in July, but Democrats’ plan to establish a regulatory framework for commercial production and sales of cannabis products is now in their political opponents’ hands.
The election’s outcome raises the question of whether Republicans will torpedo efforts to establish a legal retail cannabis system entirely—which legalization proponents say would keep consumers locked into what they say is the nation’s fourth-largest illicit marijuana market—or instead seek to negotiate with Democrats to create and regulate a legal industry on their own terms.
“The question isn’t legalization. We’ve already enacted that. Now we have the other side of the legalization equation,” Jenn Michelle Pedini, executive director of Virginia NORML, told Marijuana Moment. “We haven’t enacted the other major policy components, which are consumer safety and public safety, and those come from implementing a regulatory structure.”
Even if GOP leaders agree to advance some form of legal sales regulations, the change in political control could also scrap Democrats’ effort to build racial and social equity programs into the market. Earlier this year, Republicans broadly opposed measures aimed at addressing the disproportionate impact of the drug war, for example by reserving some business licenses for people who attended historically Black colleges or universities or who were previously convicted of low-level cannabis offenses. Democratic proposals also would have offered technical assistance and low- or no-interest loans to equity applicants as well as created a state Cannabis Equity Reinvestment Fund to support communities harmed by the drug war. Those components are now in question.
So far, GOP leaders haven’t said much about their intentions, other than pointing out that Democrats may have missed their opportunity.
“They have a framework of things they would like do, but they didn’t have the guts to go ahead and do it when they had the chance,” said Del. Todd Gilbert (R), the current minority leader and a likely leader of the GOP majority next session, told local public news station WHRO. “The General Assembly is left with trying to figure out a path forward in terms of how to deal with that issue.”
“We’re going to have to fix all that and we’re going to have to work with the Democrat Senate to fix all that,” he added.
Gilbert’s office didn’t respond to an email sent by Marijuana Moment seeking more details on his party’s intentions.
Democrats will maintain a narrow majority in the state Senate, members of which were not up for reelection this year.
Lawmakers passed Virginia’s current legalization law in April along party lines, with not a single Republican voting in favor of the bill on the floor of the Senate or Assembly, which at the time were both controlled by Democrats. The policy change legalized possession of up to an ounce of cannabis by adults 21 and older, as well as personal cultivation of up to four plants at home and sharing between adults. Records for a variety of misdemeanor cannabis crimes were also automatically sealed.
Retail sales were expected to begin under the new law in early 2024, but all that hinged on lawmakers coming back to the table in next year’s legislative session to finalize the details—things like how licensing would work, what products would be allowed and how social equity would factor into licensing or revenue decisions.
While the bill gave tentative answers to many of those questions, the regulatory provisions included a reenactment clause, meaning the next legislature would sign off on the details before anything would actually be set in stone. With the shift in control of state government, however, Pedini said the earlier proposal is now effectively off the table.
“Because the votes were entirely along party lines, it doesn’t appear at this time there’s a path either in the House or the Senate for such a bill to succeed in the 2022 General Assembly,” they said. “We had a clear path to expedite adult-use retail sales and new cannabusiness licensing, but it’s not clear that that path exists at this time.”
To lead the commonwealth, Virginia voters chose Gov.-elect Glenn Youngkin, who in April said he’s “never met anybody who habitually used marijuana and was successful.”
In May he described legalization as “another problem that’s going to be dumped at my feet” should he be elected.
Youngkin was called out by The Washington Post this summer for falsely claiming that “every single state” to have legalized marijuana has fallen short on revenue projections.
The governor-elect will replace outgoing Gov. Ralph Northam (D), whose administration played an active role in crafting the legalization legislation. He pushed for personal use, cultivation and sharing among adults to become legal immediately rather than in 2024, as in earlier versions of the bill. “I personally don’t think we should be arresting or penalizing somebody for something we’re getting ready to legalize,” the governor said in an interview at the time.
Northam was ineligible to run for re-election because Virginia prevents governors from serving consecutive terms.
Youngkin’s challenger, former Gov. Terry McAuliffe (D), made legal cannabis a part of his campaign platform. “The vast majority of Virginians support legal cannabis,” he tweeted in July, “but extreme Republicans are determined to make it illegal again.”
Youngkin’s campaign rejected the claim. “False,” his campaign replied. “Glenn Youngkin will not seek to repeal it.”
Glenn Youngkin will not seek to repeal it; his focus will be on building a rip-roaring economy with more jobs and better wages, restoring excellence in education, and reestablishing Virginia’s commitment to public safety.
— Team Youngkin (@TeamYoungkin) July 2, 2021
Younkin beat out McAuliffe in last week’s election, collecting 50.6 percent of the vote. McAuliffe won 48.6 percent, while Liberation Party candidate Princess Blanding picked up 0.7 percent.
While Pedini warned against putting too much stock in politician’s campaign-trail promises, some existing medical marijuana companies in Virginia seem to be taking Youngkin at his word.
“With Governor-elect Youngkin previously stating that he would uphold the will of the people, and focus on creating a ‘rip-roaring economy,’ we are fully confident that he and the people of Virginia will continue to make progress,” said Jim Cacioppo, the CEO, chairman and founder of multistate cannabis company Jushi Holdings, said in a statement.
While Republicans could prevent the creation of a legal marijuana market or even attempt to undo legalization completely, it’s also possible they could craft a bill more to their liking. Though Republicans opposed this year’s legalization bill, pushback by many GOP lawmakers centered on particular provisions, such a change by Northam that would’ve allowed regulators to revoke a company’s business license if it interfered with union organizing efforts or failed to pay prevailing wage.
The advocacy group Marijuana Justice, which opposed the Democrats’ legalization plan earlier this year on the grounds it failed to adequately advance issues of social and racial justice, told Marijuana Moment it will “continue to oppose bills that do not include equity and we will work with legislators that understand the importance of putting people over partisanship.”
“The results of this election showed that we have to be flexible and agile and shift our political strategy,” said Chelsea Higgs Wise, the group’s executive director. “We are unsure what the new priorities of the new administration will be about legalization but our goals of centering those impacted by disproportionately enforced marijuana crimes has not changed.”
The past year has seen Republicans in a number of U.S. states take lead roles on cannabis legalization and other reform measures, though often with different priorities than their Democratic counterparts. Some have pushed for lower taxes and simple business regulations, for example, while others have balked at progressive efforts to establish programs to invest in communities most harmed by the drug war.
Democrats in Virginia, who still control the government until the newly elected Republicans take office, could technically attempt to push through their own plan before the year is over in a new special session, but that’s widely seen as a long shot. Some centrist Democrats, such as Sen. Chap Petersen, already opposed legalization earlier this year and are sending signals they intend to play a stronger role in their party in the coming session.
“Historically Democrats have been disinclined to call lame-duck sessions,” said Pedini, who is also NORML’s national development director. “However when it comes to cannabis, they would certainly have public support on their side.”
More than two-thirds of adults in Virginia (68 percent) support marijuana legalization, according to a poll released in February, including a slim majority (51 percent) of Republican voters.
At one point earlier this year, voters would have had a chance to weigh in themselves. A provision in the Senate version of the legalization bill would have put a legalization referendum on the state ballot, but it was removed from the final bill before passage.
Not only could such a vote have allowed voters to have a say on the cannabis question directly, but some speculated that it could’ve boosted election turnout last week, especially among younger voters, potentially leading to a different result.
Sen. Scott Surovell (D), who was not up for reelection last week, tweeted, “Just imagine how different turnout would have been in the 18-29 y/o cohort if we had put an advisory referendum on recreational marijuana sales on the ballot.”
Just imagine how different turnout would have been in the 18-29 y/o cohort if we had put an advisory referendum on recreational marijuana sales on the ballot as proposed by the Senate @ACLUVA @MarijuanaPolicy @NORML https://t.co/6lBm0fRhJc
— Senator Scott Surovell (@ssurovell) November 5, 2021
For now, legislative conversations will continue—even if the outcomes are more uncertain. As Pedini pointed out, the legislature’s Cannabis Oversight Commission has a subcommittee meeting scheduled for November 10 focusing on expedited sales.
Photo courtesy of Philip Steffan