The Delaware House of Representatives on Tuesday voted to uphold the governor’s veto of a marijuana legalization bill—a disappointment for advocates that comes on the same day that a rally was held outside the State House to push to overturn the veto.
The chamber failed to override Gov. John Carney’s (D) action in a 20-20 vote, with one member not voting. The bill had initially passed with 26 votes—more than the supermajority threshold needed to override a veto—though some members were evidently hesitant to contradict the governor even though they support the reform as a matter of policy.
“We’re missing an opportunity,” Rep. Ed Osienski (D), the sponsor of HB 371, which would legalize possession and gifting of cannabis without a sales component, said on the House floor before the chamber’s vote. “Eighteen states around the United States have passed this legislation…and nobody’s come back to say this was a mistake. Nobody has come back and said we need to repeal this.”
After the legislature sent the measure to the governor’s desk last month, he announced that he was refusing to sign it, a move that wasn’t entirely unexpected given his past comments on the issue but still stands in stark contract to the policy positions of virtually every other Democratic governor in the country.
“I respect the Legislative Branch’s role in this process, and I understand that some hold a different view on this issue,” the governor said at the time. “However, I have been clear about my position since before I took office, and I have articulated my concerns many times.”
Osienski also sponsored a complementary bill to set up regulations for an adult-use cannabis market that advanced through the committee process alongside HB 371, only to be narrowly defeated in the House last month by one vote. Under a procedural maneuver that the sponsor executed, that measure could have been brought back up for another vote and could have passed since one of its supporters was absent for the prior roll call—but that seems in serious doubt now that the companion possession bill has failed.
Osienski made the calculated decision to break up the measures after an earlier proposal that included both components was rejected in the House because it also failed to get a required three-fifths majority. Because the simple possession bill did not deal with revenue-raising, it only needed a simple majority but still cleared both chambers with supermajority support.
Carney made his first comments on the legalization legislation last month, saying that he agrees that using cannabis shouldn’t be a “criminal offense,” but he still signaled that he still had concerns with the policy change and declined to say at the time whether he intended to sign either measure.
“Unless there are major changes to the composition of the Delaware House, prohibition will almost surely continue in Delaware until there’s a new governor in 2025,” Karen O’Keefe, state policies director for the Marijuana Policy Project, told Marijuana Moment. “In the meantime, Delawareans—disproportionately Black and Brown Delawareans—will continue to be subjected to thousands of unnecessary, intrusive searches and stops because Gov. Carney vetoed HB 371, and several members of the House didn’t have the courage of their convictions to vote to override his veto.”
Ahead of the failed override vote, activists with the Delaware Cannabis Policy Coalition and allied organizations rallied outside the State House on Tuesday, alongside Osienski and Rep. Eric Morrison (D), imploring lawmakers to pursue an override vote given both the support the reform bill received in the legislature and the overwhelmingly popularity of the issue among Delaware voters.
“We cannot, nor should not, ignore the will of this body, nor the will of the people who voted to sent us to Dover,” Osienski said at the rally ahead of Tuesday’s vote, referring to voter support for legalization as demonstrated by polls. “We must override the veto of HB 371.”
Morrison, for his part, said that the “governor’s veto of House Bill 371 is unfortunate and is not reflective of what the majority of Delaware legislators or the majority of Delawareans want.”
“Now, it is time for the state legislature—the men and women who walk in these halls and sit in these chambers—to take the next appropriate step in that same democratic process and override,” he said.
Here’s what Delaware’s HB 371 would have done if enacted:
The bill would amend state statute by eliminating penalties associated with the possession of up to one ounce of marijuana by adults 21 and older.
It would further add a section stipulating that adults 21 and older could share up to an ounce of cannabis “without remuneration.”
That section clarifies that marijuana could not be “gifted” as part of a contemporaneous “reciprocal transition” or if the gift is contingent on a separate transaction for non-cannabis products or services.
Here are the main provisions of the complementary HB 372:
A marijuana commissioner would be appointed under the state Division of Alcohol and Tobacco Enforcement. The official would be tasked with regulating the industry and overseeing licensing of retailers, cultivators, manufacturers and laboratories.
Licenses would be granted through a scored, competitive process, with advantages given to those who pay workers a living wage, provide health insurance or meet certain other benchmarks.
After 19 months of the bill’s enactment, regulators would need to approve 30 retailer licenses, half of which would go to social equity applicants. Social equity applicants would be defined as entities majority-owned by people with past cannabis convictions or who live in an area disproportionately impacted by the drug war.
Those applicants would also be allotted one-third of the planned 60 cultivation licenses, one-third of manufacturing licenses and two of five licenses for testing laboratories. They would also qualify for reduced application and licensing fees as well as technical assistance from the state.
Retail marijuana sales would be subject to a 15 percent tax. No tax would be levied on medical cannabis sales.
Seven percent of the tax revenue would be used to support a new Justice Reinvestment Fund that would provide grants, services and other initiatives that focus on issues such as jail diversion, workforce development and technical assistance for people in communities that are economically disadvantaged and disproportionately impacted by the drug war. The money would also be used to help facilitate expungements.
Home cultivation for personal use would continue to be prohibited.
The legislation would allow individual municipalities to establish their own regulations for marijuana business operating times and locations, and they would also be allowed to ban cannabis companies altogether from their jurisdictions.
The bill provides explicit legal protections for state employees who work with the state-legal market. And it would also allow marijuana businesses to claim tax deductions at the state level—something they’re prohibited from doing at the federal level under a tax code known as 280E.
The tax-and-regulate bill is materially the same as the measure defeated in the state House in March.
Vermont lawmakers followed a similar approach to what Osienski pursued by first passing a noncommercial legalization bill in 2018 and then following that up with separate legislation to tax and regulate sales in 2020.
The governor said last year that he doesn’t support legalization in part because he believes marijuana can be a gateway drug to more dangerous illicit substances.
“We spend all this time and money to get people to stop smoking cigarettes and now we want to say it’s okay to just smoke marijuana recreationally,” he said at the time. “Look, I don’t want to sound like a prude about it, I just don’t think it’s a good idea.”
The governor also said that his assessment of other states that have enacted legalization is that “it just doesn’t seem to me to be a very positive thing from the strength of the community, of the economy in their states. Is it the worst thing in the world? No, of course not.”
An even earlier legalization bill from Osienski cleared committee last year. However, disagreements over social equity provisions stalled that version, keeping it from the floor. At the time, Osienski pledged to bring a revised bill for the 2022 session that could earn broad enough support to pass.
When the sponsor’s earlier bill was being considered last year, he said he was caught off guard when he was informed that the inclusion of a social equity fund meant the bill would require 75 percent of legislators in the chamber to approve it.
The lawmaker tried to address the problem through an amendment, but some members of the Black Caucus opposed the changes, and the measure failed.
Osienski has worked with the Black Caucus in the ensuing months to build support and move toward more passable legislation. And a clear sign of the progress is that Reps. Rae Moore (D) and Nnamdi Chukwuocha (D) signed on as cosponsors to the since-rejected bill after pulling their support for the 2021 version over equity concerns. They’re also listed as cosponsors for the new HB 372.
In 2019, Osienski was the chief sponsor of a legalization bill that cleared a House committee but did not advance through the full chamber. That bill would have allowed medical cannabis dispensaries to begin selling marijuana to adults 21 and older while the rest of the adult-use industry was still preparing to launch, a provision that was removed from later versions.
Four of the state’s six medical marijuana companies came out publicly against that change and testified in opposition to last year’s bill. In response, Delaware activists mounted a boycott against those operators.
Portions of the most recent version of the cannabis regulations bills on expungements were removed this session, as they were made redundant by the enactment of separate legislation last year.
Meanwhile, despite his wariness about adult-use legalization, Carney did previously sign two pieces of marijuana expungement legislation. In 2017 and 2018, a state task force met to discuss issues related to legalization, and the governor hosted a series of roundtable meetings about cannabis.
A legalization bill previously received majority support on the House floor in 2018, but it failed to receive the supermajority needed to pass.
An analysis from State Auditor Kathy McGuiness (D) released last year found that Delaware could generate upwards of $43 million annually in revenue from regulating marijuana and imposing a 20 percent excise tax. The legal market could also create more than 1,000 new jobs over five years if the policy is enacted, according to the report.