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Brnovich prefers Legislature, not voters, to legalize recreational marijuana

Deposit Photos/Syda Productions

Deposit Photos/Syda Productions

Attorney General Mark Brnovich wants state lawmakers to debate and enact a recreational marijuana program rather than risk an industry-crafted measure from becoming the law of the land at the ballot box.

And even Gov. Doug Ducey, who said he needs to see any legalization proposal before commenting, said he is concerned about the unchangeable nature of passing laws at the ballot box. But the governor said he remains personally opposed to adult use.

Brnovich told Capitol Media Services on Monday that the issues are far too complex to be left to a take-it-or-leave-it ballot measure. And he said those issues deserve more discussion than 30-second TV ads pushed by proponents and foes.

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

“Generally speaking, as a matter of public policy, the public policy makers, i.e., the Legislature, should step up and address issues so voters don’t have to do it via the initiative process,” he said.

But Brnovich said his key concern is that if marijuana for adults is legalized at the ballot it will be constitutionally protected against legislative fixes.

The idea is getting a skeptical response from the committee that is crafting what it hopes will be on the November 2020 ballot.

“I think this is more work than the Legislature has the capacity to tackle,” said Stacy Pearson, a consultant working with the group that is crafting the initiative. “This is complicated.”

More to the point, her organization does not intend to wait around until next year to see what state lawmakers craft, with petitions to get the necessary 237,645 valid signatures by July 2, 2020, likely on the streets as early as next month.

That potentially sets the stage for two competing measure on the 2020 ballot, one by initiative organizers and one adopted by lawmakers.

The Arizona Chamber of Commerce and Industry, which helped defeat a recreational marijuana program in 2016, is open to the idea of having the issue tackled by the Legislature.

“In order to be able to fix errors or address unintended consequences, adopting new policies via the regular legislative process is almost always preferable to the ballot box,” said spokesman Garrick Taylor.

That’s also on the governor’s mind.

“I think in any law there are unintended consequences,” Ducey told Capitol Media Services.

“Voter protection doesn’t contemplate that” he said. “And, yes, that does concern me.”

Yavapai County Attorney Shiela Polk speaks at a debate on cannabis at Arizona State University in Phoenix on April 29, 2015. (Photo by Gage Skidmore/Flickr)

Yavapai County Attorney Shiela Polk speaks at a debate on cannabis at Arizona State University in Phoenix on April 29, 2015. (Photo by Gage Skidmore/Flickr)

But Yavapai County Attorney Sheila Polk said she will oppose any efforts to allow recreational use of the drug, whether at the ballot box or the Capitol.

“There is not a single successful model for legalization anywhere, whether by initiative or by legislative action,” she said.

“Once a state starts down the path of legalization, there is no turning back,” Polk said. “Good public policy should discourage, not encourage, drug use.”

Central to the debate is the Voter Protection Act.

In 1996 voters approved a law to allow doctors to prescribe marijuana and other drugs. The following year the Legislature effectively gutted the law to prevent it from taking effect.

So in 1998 the same group got voters to enact a constitutional measure which prohibits lawmakers from repealing or altering anything approved at the ballot box. It allows changes only with a three-fourths vote of both the House and Senate, and only when those changes “further the purpose” of the original measure.

“Recent history has shown that there are all sorts of unintended consequences when it comes to legislating via the initiative process,” Brnovich said.

For example, state lawmakers tried in 2012 to amend the 2010 medical marijuana law to keep students from possessing the drug on campus. But Brnovich was rebuffed by the Arizona Supreme Court when he sought to defend the law, with the justices saying that wasn’t what voters approved and the Legislature had no authority to change it.

The same, Brnovich said, will be true with whatever initiative organizers present to voters. He said there will be complex questions ranging from location, packaging and advertising to how the state deals with edible forms of the drug.

And then there’s the issue of people operating motor vehicles while under the influence of marijuana.

“What do you do about testing for THC,” the psychoactive ingredient in the drug, Brnovich asked, a question that includes not only how to test but what is considered impaired.

“I think that there are a lot of really serious questions that are a part of this conversation,” he said.

“It’s hard to do that sometimes when you are doing that via the initiative process and 30-second TV ads,” Brnovich said. “These are complicated issues that deserve intellectual debate.”

Doug Ducey

Doug Ducey

Ducey, who opposed the 2016 measure, said his views of recreational use haven’t changed.

“I don’t think any state ever got stronger by being stoned,” he said. “And we have existing laws that support medical marijuana.”

But the governor also said he fears what might be approved at the ballot box.

“I think in any law there are unintended consequences,” he said.

Anything approved by the Legislature can be fixed.

The governor was careful to say he was not trying to undermine the ability of people to craft their own laws.

“Of course I want to protect the will of the voters,” he said. “But I also think we have a legislative process for a reason, and that’s to adjust and improve policy when we can.”

Ducey said he wants to “know the specifics” before committing to a legislative solution.

One issue likely weighing on those who will decide whether to support a legislative solution is the chance that a 2020 initiative would pass.

The 2016 measure lost by a margin of just 51.3 percent to 48.7 percent. And that was with opposition from some supporters of medical marijuana who claimed that measure was designed largely to benefit existing dispensary owners.

Since then several states have legalized the adult use of marijuana, either through legislative or voter action. And a telephone survey in Arizona earlier this year showed 52 percent of those questioned in support of recreational use.

Pearson told Capitol Media Services the cash will be there to mount the campaign.

“The funders have committed the resources to win,” she said.

Editor’s note: The second paragraph in this story and headline were revised to clarify that Gov. Doug Ducey is not taking a position on legalization, but that he is concerned about the ballot route. 


  1. The Arizona state government doesn’t think the voters are capable of making decisions that directly effect their lives…only the government can make good decisions for “the people”. Considering the state is still currently dominated by republicans, the Arizona government, which is lead by a republican governor, they may be correct! Marijuana is here to stay…regulate and tax it !

  2. Well, they’ve had plenty of time to pass a decrim or legalization law. Now the only reason they are considering it is because of how close Prop 205 came to passing, they know the next one will most likely pass. All of a sudden they wanna pretend like they care. I guarantee anything the legislators propose or pass will not be nearly as permissive as a voter approved initiative, however restrictive that may be.

  3. I’ve have an AZ medical card and have a good feel for what the voters want. The legislature is too conservative to craft a sensible recreational cannabis law. They’ll add so many limitations that a citizen initiative will be necessary to correct it. They’ll have to enact something similar to CA, NV, and CO including home growing or get bulldozed by the voters.

  4. Perhaps County Attorney Polk should re-disclose the fact that her PAC accepted $500k from INSYS, the now guilty of conspiracy opiate manufacturer, and she remains “proud” of accepting that donation.

    So in her own way she is actually encouraging drug use… as long as it’s her drug of choice?

    Not to mention the piles of cash they got from the alcohol industry as well. #AnyoneButPolk2020

  5. Gloria Braathen

    Those so-called supporters of “adult personal use cannabis” who insanely railed against Prop 205 should receive a dose of whoop-***. Citizens initiatives are the only way to get the law right.

  6. Same situation with tribal gaming in 2000-2002… legislature failed to act efficiently and the tribes put their petition on the ballot. Voters narrowly passed that bill and the issue of all-or-nothing propositions that are virtually unfixable is well founded, and grounded in marijuana law tamperings.

  7. Marijuana prohibition is a form of social control that has been forced upon the people of this country in order to benefit special interest groups. Lets be real: marijuana is not that big of a deal. It is a soft drug. Hard liquor is much much much more dangerous and addictive. Free people should have the right to choose marijuana instead. And they do. All the time. Laws that punish free choice when there is no victim have a name: tyranny. But law enforcement and prisons and big pharma and others profit from it. Wake up people. The government does not care about you. It does not care about protecting you. It wants to control you and profit off of you. And the government is scared that the people will be able to vote on an initiative that will give away too much of that profit and control. The religious conservatives and old white hairs are too stupid to understand. But Brnovich is a smart guy. He sees what’s going on. And he wants to hold onto as much profit and control as possible. Unless they allow home cultivation then their “legalization” is a farce. THC limits are a farce. They don’t care about people. They just want to keep getting those campaign contributions from their special interest friends.

  8. Somebody might point out to Sheila Polk that there is no single, successful model for cannabis prohibition either. I’m also rather curious as to what she plans to tell “The Children” when they find out that this stuff is not the horror she says it is.

  9. Yes, of course the Arizona Legislator’s where gaming advantage of ANY lucrative scheme is welcome.
    Note, ever wonder why so many greedy lemmings put forth such effort to join the opportunists? The best example, is the outsized ‘rewards’ garnered from Charter Schools.

  10. Lets keep it real. The real concern is that Brnovich knows a marijuana ballot initiative will bring out more young voters who will predominately vote for democrats. Just more voter suppression tactics. Wake up America.

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