Part 1

It’s been decades and decades of hard work, heartbreak, toil, trouble, tears, jeers, and sometimes cheers. On November 7th, Ohio voters passed Issue 2 – the Regulate Marijuana Like Alcohol (RMLA) citizen-initiated statute – by a comfortable fourteen-point margin of 57% vs 43%. In sum, 2,183,735 Ohioans voted for marijuana that day.

Ohio’s cannabis community applauded and lauded this general election win. With a 30-day effective date, this statute initiated by voters, not the legislature, becomes law on December 7th. Or does it? Just like Ohio politics, this debate has become the subject of controversy.

First, the laws of Ohio find their basis in the Ohio Constitution, the Ohio Revised Code, and the Ohio Administrative Code. The constitution supersedes the other two. The revised code contains the law, while the administrative code lists rules adopted by state agencies. The Legislative Services Commission (LSC) codifies these codes.

Some suggest that the statute language inserted in the Ohio Revised Code should reflect the will of the voters and remain as is. However, the trifecta dominated Ohio General Assembly signaled changes are in the works. Even before the election, Ohio Senate President Matt Huffman had in mind “reviewing things or repealing things or changing things." Post vote, Governor Mike DeWine observed, “there's a lot of holes in what was passed."

“What the people have clearly told us is they want legal marijuana in Ohio,” said DeWine at a Columbus event. “We are going to see that they have that, but we’ve also got to live up to our responsibility to all the people in the state of Ohio, whether they voted for it or voted against it ... And we do it, frankly, the Ohio way.”

One can see why advocates might be concerned. The trifecta’s “Ohio way” has taken the form of a $20,000,000 August election loss, an error-ridden Senate resolution, and of course, Larry Householder.

The “Ohio way” also means murky mystification muddying the would-be process. Can the General Assembly modify Issue 2? If so, how?

One perception holds that RMLA’s “approval on the ballot is essentially tantamount to Ohio voters passing a new piece of legislation just like Ohio lawmakers do. This means that those lawmakers can change the law back without voter consent. There is no limit on the extent to which the GOP-controlled state legislature can amend the 41-page initiative voters just supported; they could even outright repeal it.” 

On the other hand, a professor of history and law claimed that legislators can only change RMLA within the 30-day window before the December effective date. After that, modifications “would likely be challenged in court.” The problem, he says, lies in the lack of clarity about Ohio’s initiated statute procedures.

For one, there is little precedent. Citizen-initiated statutes are a rare breed. Since the inception of the process over one hundred years ago in 1912, only 12 have been placed before voters, and including the RMLA, only four passed. The last two concerned smoking in 2006 and oleomargarine in 1949. Clearly, the General Assembly lacks historical precedent on which to base its ability to make any changes to or even repeal citizen-led statutes statues, particularly controversial ones.

The Ohio Constitution can be even murkier. Possible relevant clauses might include:

• “The legislative power of the state shall be vested in a general assembly consisting of a senate and house of representatives but the people reserve to themselves the power to propose to the general assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided. …The limitations expressed in the constitution, on the power of the general assembly to enact laws, shall be deemed limitations on the power of the people to enact laws.” Article II, Section 1 | In whom power vested
• “If a proposed law so submitted is approved by a majority of the electors voting thereon, it shall be the law and shall go into effect as herein provided in lieu of any amended form of said law which may have been passed by the general assembly, and such amended law passed by the general assembly shall not go into effect until and unless the law proposed by supplementary petition shall have been rejected by the electors.” Article II, Section 1b | Initiative and referendum to enact laws
• “No law proposed by initiative petition and approved by the electors shall be subject to the veto of the governor.” Article II, Section 1b | Initiative and referendum to enact laws
• “The foregoing provisions of this section shall be self-executing, except as herein otherwise provided. Laws may be passed to facilitate their operation, but in no way limiting or restricting either such provisions or the powers herein reserved.” Article II, Section 1g | Petition requirements and preparation; submission; ballot language; by Ohio ballot board

Finally, there seems a suspicious sense of urgency in lawmaker’s interest to render change. DeWine reasons, “[It] would be good if that [changes to Issue 2] was all done and done by the 7th so that we're not in a situation of taking something away from people. We're not in a situation of telling them, 'For X number of days it's going to be one thing, and then an X number of days after that it's going to be something else." Huh? For his part, Huffman wants to put this legislation up for vote on by December 6th, the day before Issue 2’s effective date and likely the last Senate session of the year. To overturn parts of RMLA, the tight timeline would require invoking an emergency clause … and a two-thirds vote of both chambers. (This is beginning to sound more like May 2023.)

What modifications does the governor, et al have in mind? Targets appear to be include public smoke, child attractiveness, THC levels, impaired driving, and allocated taxes. The well-known opposition wants to eliminate “commercial sales, advertising and production, at a minimum.”

If December 7th is a hard deadline, could the trifecta General Assembly reach consensus by then to slice/dice adult use marijuana in Ohio? As with the August special election, would the Ohio House refuse to go along? Does a lack of agreement suggest that RMLA will remain intact and thereby honor the will of two million voters?

The drama continues. Part 2 of this article will provide an update through the end of the year. Stay tuned.

IMPORTANT LINKS

Here is the full text of the Regulate Marijuana Like Alcohol (RMLA) statute.

Here are bullet points that outline the RMLA’s provisions.

Here is a document that overviews the initiated statute process using the RMLA as an example.

Here is the legislative language of H.B. 168, the Enact Adult Use Act, similar to the RMLA.

Here is a presentation version 216 Rebuttal to Senate Resolution 216.

Here is the full text of the Ohio Senate Resolution 216.

Here is Mary Jane’s Guide, “Initiate this: Adult Use Comes to Ohio.” December 2022. Deep dives into the RMLA.

Here is Mary Jane’s Guide, “Just Say NO! to Issue 1.” May 2023. Covers Issue 1 and the RMLA, offering a historical backdrop.

Here is Mary Jane’s Guide, “UPDATES: Issue 1 – RMLA – Courage in Cannabis Launch.” July 2023. Updates on the August special election concerning Issue 1 (upping the passage percentage for constitutional amendments) and the RMLA.

Here is Mary Jane’s Guide, “Adult Use Marijuana & Courage in Cannabis Updates.” August 2023.

Here is Mary Jane’s Guide, “Special Angel” about Angelica Warren with an update on the RMLA. September 2023.

Here is Mary Jane’s Guide, “Vote YES on Issue 2.” (Issue 2 is RMLA) October 2023.

Here is a Wikipedia entry about the RMLA.

Here is an analysis of cannabis opponents in the State of Ohio.

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Mary Jane Borden is a best-selling author, skilled graphic artist, insightful analyst, and award-winning cannabis activist from Westerville, Ohio. For nine years after earning her MBA in finance, she analyzed the global cancer chemotherapy market for a major pharmaceutical company. Then, during her 40-year career in drug policy, she co-founded seven cannabis-oriented groups, co-authored four proposed constitutional amendments, lobbied for six medical marijuana bills, penned over 100 Columbus Free Press articles, and has given hundreds of media interviews. She is one of the Courage in Cannabis authors, with articles in both editions. Her artwork can be viewed at CannabinArt.com and she can be reached at maryjaneborden@ gmail.com