Two initiatives seek to make cannabis legalization a ballot issue in Oklahoma
With two initiatives now filed Oklahomans may soon get to decide whether the state should legalize cannabis for adults over 21.
It’s been three years since Oklahomans voted to legalize cannabis for medical use and business has been booming. In 2019 activists quickly tried to capitalize on the initial wave of approval with a recreational petition that failed to gain traction. Now it seems the question isn’t if Oklahoma will legalize cannabis for adult use—but rather what proposed measures should do it. Two new ballot initiatives relating to legalizing cannabis for adult use have been filed in the past year and while both reach the same end in many respects, they take different routes to get there.
The main difference between SQ819 & SQ820
Oklahomans for Responsible Cannabis Action (ORCA) filed the first recreational petition in October of 2021. Their petition, SQ819 titled the Oklahoma Marijuana Regulation and Right to Use Act would amend the state constitution to legalize cannabis for adults over 21. The competing initiative, SQ820 filed just last week legalizes cannabis by changing the state statute. This is primary difference between the two initiatives because each require different levels of public support and legislative involvement. So the question could present itself as should we amend our constitution or create a new statute?
Only 18 states allow initiated amendments like SQ819. In Oklahoma the number of signatures required for initiated constitutional amendments must equal 15% of the number of votes cast for governor, whereas statutes only require 8%. So from the start, that would mean SQ819 needs 177,958 signatures of support to make the ballot and SQ820 only requires 94,911 signatures. By simple math, an initiated amendment could be twice as hard to get on the ballot as an initiated statute. There is so much more to understanding the difference between constitutional amendments and legislative processes, but this alone highlights why an amendment may have a harder road even if the right to use should be constitutional.
The big regulatory questions
SQ819 would establish the Oklahoma State Cannabis Commission which would operate independent of the Oklahoma Department of Health and would replace the Oklahoma Medical Marijuana Authority (OMMA) as overseer of both the recreational and medical cannabis programs. Under SQ820, OMMA would keep its regulating authority under the umbrella of the Oklahoma State Department of Health (OSDH), and create two separate sets of rules for recreational and medical cannabis.
Moving OMMA away from the OSDH has come up on legislative proposals as recent as last year. HB2674, introduced in February of 2021, would have transferred all powers, duties and responsibilities of OMMA from the State Department of Health to the Alcoholic Beverage Laws Enforcement Commission. Critics opposed the move due to the optics of the ABLE Commission regulating medical cannabis program. The whole idea behind the proposed move rallied behind the Commission’s resources. Proponents hoped that relying on ABLE resources and existing enforcement powers could actually protect the integrity of the program over time. While the measure didn’t pass, that same end met by expanding OMMA’s regulatory task force and allowing OMMA to enter memorandums with other agencies such as the Oklahoma Bureau of Narcotics for regulatory enforcement purposes. The newly appointed Executive Director of OMMA, Adria Berry has recently celebrated same-day turnarounds for patient applications and two week turnarounds for business applications. OMMA is not the same agency it was a year ago. However, when recreational comes into play, the idea of having a dedicated cannabis regulating body does make sense. The addition of an adult use program could take OMMA right back to where it once was without the proper planning for additional regulatory infrastructure. The main caution with SQ820 on this issue then becomes the assumption OMMA can carry on as is while potentially doubling or tripling the licensing load and regulatory responsibilities.
SQ820 requires a separate license for businesses who want to cultivate, process and sell recreational cannabis and medical cannabis. With SQ820 for example if an existing medical dispensary wanted to sell to non-medical patients they would need an additional license for that. Commercial adult use licenses would be the same price as the current commercial medical license at $2,500 each. This type of licensing structure follows the model of Colorado—which has four recreational licenses and four medical licenses businesses can apply for. SQ819 takes a one license one set of rules approach to medical and recreational. Alternatively, under SQ819 licensed medical cannabis dispensaries would be able to sell to the recreational market 60 days after enactment. Both options have their faults. With a one size fits all approach the distinction between a batch of medical cannabis and recreational cannabis might simply be the tax paid by consumers. In this sense, a truly patient focused market may be best preserved by requiring specific licenses for each.
As with all things it always comes down to implementation.
Taxes and retroactivity
Both SQ819 and SQ820 place a 15% tax on retail sale of cannabis. The big variance here is that SQ819 phases out the excise tax for medical cannabis patients over the course of one year. This is an essential element to recognizing the medical program for its medical purpose. Both petitions set recreational excise tax at double what medical cannabis excise tax has historically been in Oklahoma, but SQ820 preserves the 7% excise tax on medical cannabis indefinitely.
Prescription medications are 99% exempt from sales tax. Having a clear distinction between recreational and medical cannabis sales ideally allows for a clear tax distinction similar to the separate tax treatment for over the counter and prescription medication.
Another benefit of SQ819’s tax provisions is that it sets aside three percent of tax revenue to fund grants for its expungement program. If SQ819 passed the Oklahoma Department of Corrections would be required to publish a list of all people incarcerated for cannabis-related convictions within 180 days. The provisions are:
A person currently serving a sentence for a conviction, whether by trial or by plea of guilty or nolo contendere, whose conduct would have been lawful had this Article been in effect at the time of the offense, may file a petition for resentencing, reversal of conviction and dismissal of case, or modification of judgment and sentence before the trial court that entered the judgment of conviction in the person’s case to request resentencing, modification, or reversal in accordance with this Article.
A person who has completed his or her sentence for a conviction, whether by trial or plea of guilty or nolo contendere, whose conduct would have been lawful had this Article been in effect at the time of the offense, may file a petition before the trial court that entered the judgment of conviction in the person’s case to have the conviction dismissed, expunged, and vacated as legally invalid in accordance with this Article.
While SQ820 includes similar expungement language, it fails to offer tax revenue to actually support a program. If our state truly desires to grant citizens the opportuniy to correct the impact of years spent criminalizing and prosecuting cannabis, a plan should be in place to fund it. Otherwise, expungement promises are just empty words. In addition to setting aside tax revenue to support decriminalization efforts, SQ819 allows The Oklahoma Department of Corrections to request reimbursement for any costs related to SQ819s directives from the proposed Oklahoma State Cannabis Commission responsible for the regulation of marijuana—SQ820 provides no such DOC support.
Putting the protections side by side
SQ819 and SQ820 offer many of the same protections, but where they differ is vital to the rights of users to enjoy their personal freedoms.
SQ819 provides for employee protections—that is no employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely for their personal legal cannabis use. SQ820 would not affect an employer's ability to restrict marijuana use by employees regardless the change in its legal status.
Another major missing protection from SQ820 relates to medical care. With the known percentage of Oklahomans who use cannabis today, it is essential their right to medical treatment can not be denied due to their use. Personal horror stories have made this an issue SQ819 provides protections for and that should be addressed with or without its passage. With SQ819, marijuana use does not constitute the use of an illicit substance or otherwise disqualify a marijuana user from medical care. SQ820 provides no such protections.
Possession and Penalties
Both petitions offer nearly identical possession and penalty provisions. The possession limit between the two is the most striking difference.
SQ819 would allow adults over 21 to legally possess up to twelve cannabis plants and the cannabis harvested from them. Adults may posses on their person eight ounces of commercially sold cannabis flower, one ounce of concentrate, seventy-two ounces of topical and edible cannabis and eight ounces of suppository. These amounts are cumulative and the legislature can increase them as well as permit other forms as needed.
SQ820 allows adults over 21 to legally possess six mature plants and six seedling plants. A single household may not have more than twelve mature plants and twelve seedlings. Adults over 21 may legally posses one ounce or less of cannabis flower, eight grams or less of concentrate, and/or eight grams or less of edibles or cannabis-infused products.
Possession in excess of these limits is still a crime with both initiatives. SQ820 specifies those caught beyond the limits of the law would face up to a $200 fine and have to forfeit their cannabis. SQ820 also details other scenarios in which you could incur a personal use penalty, such as cultivating in plain view and possessing as a minor.
The path to the people
Both petitions have a long road ahead of them and SQ819 has already faced challenges that have ORCA and the rest of Oklahoma awaiting a ruling later this month. If either petition succeeds in gathering the necessary amount of signatures they are then sent to the secretary of state for verification. The secretary of state must be able to match at least three data points on the petition sheet with the signers voter registration record or the signature will not be counted. Needless to say, if you are signing these petitions and want your signature to count register to vote if you haven’t already.
After signatures are verified they will be sent to the state supreme court which makes the final determination of sufficiency. Once the secretary has received the determination of the court they are required to publish the results in the paper. At that point you’ll know whether you’ll be seeing either petition on the ballot in November.
In Oklahoma each ballot measure requires only a simple majority. If more people vote for it than against it, legalization wins. If a measure gets rejected by voters however, it can’t be initiated again for three years unless proponents can gather 25% of the total vote cast for governor. Even now both petitions will require capturing a decent percentage of the voting population: 15% for SQ819 and 8% for SQ820 as mentioned earlier.
SQ820 is supported by New Approach PAC which has backed nearly every ballot initiative since 2020. New Approach spent nearly $10 million on Montana’s successful legalization effort that year. SQ819 could shape up to be more of a grassroots movement—but that didn’t stop SQ788 from becoming what it is today.
Beyond the competing measures of these two petitions is the plain truth that people should not be criminalized for their personal cannabis use. SQ819 and SQ820 share that general principal. It will be up to the people of Oklahoma from here to decide on the details. Petitions should begin circulating in February.
