In a nutshell
- Voters overwhelmingly approved three statewide questions appearing on the November ballot; two constitutional amendments and one initiated law.
- Before marijuana is available to buy, new congressional maps are drawn or citizens can enjoy new voting rights, a number of things must happen first.
- Key deadlines and implementation issues differ for each of the three new policies.
As an initiated state statute, the state constitution specifies that Proposal 1 will take effect 10 days after election results are certified. Certification by the Board of State Canvassers happens about three weeks after the election.
Once the election has been certified and the law has taken effect, adults who are 21 years of age or older will be permitted by state law to possess, use, and/or cultivate marijuana. Individuals will be able carry up to 2.5 ounces of marijuana and will be allowed to have up to 10 ounces of marijuana in their home (in a locked container) and up to 12 plants in their home (out of public view). Marijuana could also be gifted between adults.
The commercial sale of marijuana, however, will not be permitted immediately when the law takes effect. The Michigan Department of Licensing and Regulatory Affairs (LARA) is tasked with establishing regulations and a system of licensure for marijuana sales. LARA would need to establish fees for retail licenses, conduct inspections of marijuana establishments, hold public meetings for comments/complaints, and establish a variety of standards for safe cultivation, processing, and distribution, as well as packaging and labeling standards and some restrictions on advertising. LARA would also be responsible for regulating industrial hemp.
The department would be required to begin accepting applications to license marijuana establishments within one year of the law taking effect, and it would then have 90 days to approve or reject these applications. Once retail sales begin, a 10 percent excise tax would be applied to the sale of marijuana, in addition to the 6 percent state sales tax. At the same time, the legalization of recreational marijuana will eliminate the 3 percent excise tax on retail sales of medical marijuana. Depending on the pace of action by LARA, the state may realize to revenue gains in FY2019, but it is likely that those revenue gains will not materialize until FY2020.
There are a few key caveats on marijuana use, which will not be permitted in public, in schools, or on federal property. Minors would not be permitted to possess or use it. Operating a vehicle while impaired by marijuana will also remain illegal.
Some who advocated for eliminating criminal penalties for marijuana have also argued that past violations should be forgiven. Proposal 1 was focused on establishing a commercial market for marijuana sales and did not include any provision of amnesty for past offenders. Expungement of past marijuana offenses could be pursued by a future ballot initiative or by legislative action. Representative Sheldon Neeley (D-Flint) introduced such a bill, but it is unlikely it could make its way through the legislative process in the few session days remaining.
Marijuana legalization has been unpopular among many local government officials, and local governments will need to decide how to approach its now-permitted presence in their localities. The law enables local governments to pass some ordinances restricting marijuana businesses (or prohibiting them altogether). Local governments that do not allow such businesses would not receive any tax revenue from marijuana sales (even if they face some of the costs associated with legalization).
Michigan will need to devise clearer answers for protecting the public’s health and safety. Marijuana use before driving increases the risk of fatal collisions (especially when used in combination with alcohol). Last year, five counties in Michigan began a pilot program for roadside drug testing; the combination of policy and technological development will be needed to enhance enforcement of impaired driving laws. Other states that have legalized marijuana have invested in public health, mental health services, and programs to prevent youth substance abuse and dependence. Because the new law does not direct marijuana revenues to these purposes, other resources will need to be identified.
Redrawing District Lines
The Independent Citizens Redistricting Commission, which will be charged with deciding Michigan’s congressional and legislative districts, will not affect how districts will look for the 2020 elections; the state will use the current districts to finish off the decade. After the census is conducted in 2020 and results shared in 2021, the 2022 primary and general elections will be the first elections using commission drawn maps. But how does the timeline look for those?
By December 1, 2019, the state legislature must fund the commission. While under previous procedures the legislature would be responsible for the entire redistricting process, the bulk of the administrative work will now be conducted by the Secretary of State. Once the initial appropriation is made, the Secretary of State’s office has until January 1, 2020 to make applications for the redistricting commission available. Eligible citizens will be able to apply until June 1, 2020. By September 1, the Secretary of State must complete the selection process and randomly select the 13 commissioners.
The commission will convene by October 15, 2020, and will then start hosting public meetings to discuss redistricting throughout the state. The commission will host meetings and have internal discussions over the next year. By November 1, 2021, the commission will have to vote on a final set of congressional, state house, and state senate district plans. Once the vote is approved by the commission, the 2022 maps will become law 60 days later. Those maps will be used through the 2030 elections (unless the Michigan Supreme Court or federal courts rule them illegal). The process will begin again in 2029.
While there are many things to watch in the first redistricting cycle with this new commission, Proposal 2 has so much detail that there are relatively few uncertainties as to how the process will look until the commission is called to order. The Secretary of State will be responsible for all implementation before the commission convenes. How applications are designed and what randomization processes are used will be two practical choices that could have an impact on the process. Of particular importance is the initial randomization, where the Secretary of State must select 200 applicants (60 Republicans, 60 Democrats, and 80 independent voters) randomly, with statistical weighting to ensure the pool matches the state’s geographic and demographic makeup, which will require choices such as which demographic categories are included in the selection process.
Once the commission is organized, however, there will be many implementation questions. The redistricting commission will have to establish its own set of rules and procedures. While it will have to comply with state laws like the Open Meetings Act and the Freedom of Information Act, many procedural issues – how to select contractors and lawyers, which and how many locations to host public meeting – are up to the commissioners to decide. These choices could greatly affect the credibility and outcome of the commission, and as it will be the first meeting of the commission there are no established norms or guidelines for them to follow.
Expanding Voting Rights
While the legislature will continue to direct many facets of election policy and administration through state law, Proposal 3 grants citizens with specific self-executing voting rights that are protected from legislative interference. Until the passage of Proposal 3, Michigan’s Constitution exclusively entrusted the legislature with the responsibility to regulate all aspects of elections. The legislature carried out its responsibility by first enacting the Michigan Election Law and subsequently amending the law to address different policy priorities.
As we pointed out in our analysis of the proposal, some rights are new (no-reason absentee voting) while others (deadline for mailing absentee ballots to overseas voters) currently exist in state law. Nothing prevents future legislatures from expanding voting rights; however, by enshrining these specific rights in the constitution, lawmakers are prohibited from infringing upon them. Another statewide vote will be necessary to change a constitutionally protected right. For example, the straight-party voting option that once was authorized under law, but recently repealed, is now every citizen’s constitutional right and immune from legislative tinkering.
This does not mean the legislature will not play a role in implementing these new rights. Quite the contrary. While most of Proposal 3’s policies will be implemented by the Secretary of State through procedural/process changes within the Department of State and at the local branch offices, some changes will have to wait for the Michigan Election Law to be amended. For example, current law requires applicants requesting an absentee ballot to indicate one of six reasons. This language will have to be scrapped.
Further, some of the logistics associated with new rights will have to be spelled out in new legislation; for instance, to direct the Secretary of State on implementation of the new statewide election audit provision. This could include specifying the type of audit to use, when to audit, and how to communicate audit results.
Proposal 3 takes effect on December 21 (45 days after the general election). Proposed legislation to implement its provisions will not come until sometime in 2019. The Michigan Election Law specifies four dates for the conduct of elections, so statutory changes should be in place for a May 2019 election.