Why Oregon's Attorney General Election May Be Referendum on Medical Marijuana With National Consequences

Oregon’s Democratic primary for state attorney general May 15 was widely viewed as a referendum on medical marijuana—and medical marijuana won.

Ellen Rosenblum, a former state appeals court judge who promised to “make marijuana enforcement a low priority, and protect the rights of medical-marijuana patients,” won 65 percent of the vote. She defeated Dwight Holton, a former federal prosecutor who was backed by almost all the state’s prosecutors and sheriffs and its two leading newspapers. Holton had called Oregon’s medical-marijuana law a “trainwreck,” that was “putting marijuana in the hands of people—in the hands of kids—that are not using it for pain-management purposes.”

If elected—as is likely, because the Republicans are running only a write-in candidate—Rosenblum would become Oregon’s first woman attorney general. Medical-marijuana and legalization advocates contributed at least one-fourth of her $600,000 campaign budget. She also billed herself as the "Oregon candidate.” Holton, from a prominent political family in Virginia, moved to Oregon in 2004.

“The medical-marijuana community here in Oregon was the swing vote,” says Lori Duckworth, executive director of the Southern Oregon chapter of the National Organization for Reform of Marijuana Laws and the Cannabis Community Center in Medford. Holton, she says, “spoke very loudly” when he endorsed federal raids on medical-marijuana growers in southwest Oregon last fall.

“Ellen gave us hope,” says Madeline Martinez, head of Oregon NORML and the World Famous Cannabis Café in Portland. Holton, in contrast, “sent me a letter telling me to close my café because I give medicine away.”

“The medical-marijuana community has shown they’re a powerful voting bloc,” says Kris Hermes of Americans for Safe Access in Oakland, California. He points to California’s 2010 election for state attorney general, in which Democrat Kamala Harris narrowly defeated Republican Steve Cooley, who as Los Angeles prosecutor threatened to raid medical-marijuana dispensaries even if the city licensed them. Harris, he says, has publicly opposed federal raids on dispensaries.

“I definitely think it has national impact,” says Jill Harris, managing director of strategic initiatives at the Drug Policy Alliance in New York, whose political-action arm contributed to Rosenblum. “We hope that U.S. Attorneys will think twice before they adopt these hardball tactics against providers who are complying with state law. Elected officials need to recognize that they’re behind the public on this issue.”

A Mason-Dixon poll of “likely” 2012 voters conducted May 10-14 found overwhelming opposition to enforcing federal laws against medical marijuana in states that have legalized it. Overall, the respondents opposed it by a 74-15 margin, with the percentages among demographic subgroups ranging from more than 60 percent among Republicans and people over 65 to more than 80 percent of people under 35 and African Americans.

Others are more skeptical that the Oregon results will have a broad national effect. “It certainly does alert elected officials that they ignore the pro-marijuana vote at their own peril,” says Keith Stroup, legal counsel at NORML’s national office in Washington. “But we don’t want to get too far ahead of ourselves and presume we can do the same thing in every other state.” In the Oregon race, he points out, there was a clear choice on the issue—one not available in most other races, such as this year’s presidential election.

Marijuana smokers and medical users are also much more organized on the West Coast. In Oregon, which has slightly more than 2 million registered voters, there are more than 55,000 patients and 28,000 caregivers registered with the state’s medical-marijuana program. Combined with their families, they represent a significant bloc, Martinez contends.

That bloc is much less cohesive in the Northeast. Still, New Jersey is slowly implementing its 2010 medical marijuana law, Connecticut’s legislature in early May passed a bill that would let pharmacists dispense medical marijuana, and in New York, the state assembly’s health committee approved a bill to legalize medical marijuana on May 15.

“I don’t think one race across the country will affect what happens here,” says a staffer for New York Assemblymember Richard Gottfried, a Manhattan Democrat who is the health committee’s chair and the bill’s lead sponsor. “But we really have a lot of support here, and people understand the importance of medical marijuana.”

In a Siena College poll of New York registered voters taken in early May, the respondents supported legalizing medical marijuana by a 57-33 margin.

The Oregon vote shows that “public opinion and support for this issue grows and continues to grow,” says New York state senator Diane Savino, a Staten Island Democrat who is sponsoring the bill in the upper house. People in New York may not have followed the Oregon results, but they have similar concerns. The issue, she says, affects “every family that has ever been touched by a terminal illness or a debilitating disease.” If “there’s a treatment out there that would help, why would we prosecute a doctor?”

The New York law would allow patients to use marijuana if a physician certifies that they have a “serious,” “debilitating,” or “life-threatening” condition for which it would help. For example, migraine headaches would qualify if a doctor believes they’re severe enough. Some people take OxyContin for migraines, Savino notes, and “OxyContin is far more dangerous than medical marijuana.”

The patient would then have to be certified by the state Department of Health, which would also license growers at secure indoor sites. In general, already licensed pharmacies and hospitals would dispense medical marijuana. Patients would be allowed to grow their own only if traveling to a dispensary was too difficult.

Previous medical marijuana measures have failed in New York’s legislature, which is gerrymandered so the Democrats control the assembly and the Republicans the state senate—with the result that most major legislation is settled by “three men in a room,” Governor Andrew Cuomo and the leaders of both houses. Still, Savino is optimistic. No senators, she says, have told her outright that they won’t vote for the bill, and “not one person” has contacted her to say they oppose it.

Cuomo said in April that there were “tremendous risks” in legalizing medical marijuana and that the legislature probably wouldn’t have time to handle the issue before its session ends in June.

“I would be wildly optimistic if I thought we could do it by June 21,” Savino responds. But Cuomo saying “‘there isn’t enough time” is different from him saying “no,” she adds.

Overcoming Federal Hurdles

Federal law, which declares that marijuana has no valid medical use and makes cultivation and sale felonies, remains a huge obstacle to any state efforts to enable a legal supply of medical marijuana. In February, Delaware Gov. Jack Markell suspended the state’s fledgling medical-marijuana program after the federal government threatened to prosecute state employees involved in licensing. Washington Gov. Christine Gregoire vetoed a licensing bill last year for similar reasons.

The Obama administration has said that it is going after marijuana traffickers, not individual patients, but Hermes calls that hypocritical. “He’s directly impacting their lives by cutting off their supply. He can’t have that double standard.”

New Jersey, on the other hand, has not had any problems with federal authorities, says Roseanne Scotti, head of the state’s Drug Policy Alliance chapter. “We didn’t get any clarification, but we didn’t get any threats,” she says.

She believes this is partly because Gov. Chris Christie, a former federal prosecutor, is savvy about Justice Department procedures and policies, and partly because the state’s law, enacted in 2010, is the country’s most restrictive. It limits medical marijuana to a handful of specific illnesses. Cancer patients qualify only if they have severe or chronic pain, severe nausea, wasting syndrome, or less than a year to live.

The state is moving forward on implementing the law. A dispensary in Montclair, one of six permitted in the state, has just gotten local approval and a license to start growing. More than 100 doctors have registered for the program, and patient registration will begin later this year. Still, the delay has been “very difficult for patients,” says Scotti.

Oregon’s law, enacted by a 1998 initiative, occupies a middle ground between New Jersey’s restrictiveness and states like California and Colorado, where dispensaries are widespread. It does not permit dispensaries, and voters rejected an initiative to allow them in 2010. Instead, it authorizes caregivers to grow six plants each for up to four patients.

However, a number of dispensaries have been operating, mostly in the Portland area, as private “members-only” clubs. Open only to registered patients, they take donations in exchange for medical marijuana. Such spaces create a community life for patients, both Martinez and Duckworth say.

The Cannabis Community Center, opened in 2009, also provides a food and clothing bank and help with energy-assistance programs, says Duckworth, a former certified medication administrator who also managed an assisted-living home. The Oregon law allows growers to be reimbursed for their expenses, she says, so the group collects receipts from them and then determines how much that comes to per gram.

“’Donation’ is not an acceptable word,” she says. “The law says ‘reimbursement.’”

State legislators would like to work with Washington, says Stroup, but “it’s not clear exactly what the federal government will or will not allow.” The Obama administration has mainly gone after the larger dispensaries and growers with more than 100 plants, but, “we’re in a bit of a gray market now. Until we get that federal law changed, we’re always going to run up against those limits, and we’re not sure where those limits are.”

Savino doesn’t have a specific answer as to how New York would handle the conflict with federal law. “We hope that the federal government will change their approach. It’s so absurd,” she says. “At some point, the federal government will realize they’re handling this issue incorrectly—just like rights for the LGBT community.”

Martinez says she’ll vote for Obama again, but criticizes him for prosecuting medical growers and dispensaries and not going after Wall Street bankers and brokers for fraud. Citibank CEO Jamie Dimon, she says, just lost more than $2 billion on dubious speculation, but “he’s not going to do any time. Somebody who’s growing marijuana might get 99 years.”