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News analysis — For pot, real battle wasn’t Prop. 19

By Dean Schaffer | 22 Nov 2010

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Although Prop. 19 garnered public attention, the state attorney general's race and city taxes on pot will have a much more lasting impact on California. (Photo: Kelsey Williams)

(Editor’s note: This article was updated on Nov. 24 to report the winner of the state attorney general’s election.)

On the November ballot, one item stood out. It was bold, it was polarizing and it was, above all, marijuana. Proposition 19, which would have legalized possession of less than an ounce, quickly became the center of national attention.

But for all the hubbub about the initiative and its failure to pass, other ballot contests that went relatively unnoticed may have more profound impact on California’s relationship with pot, at least in the short term. Those are the state attorney general’s race and the local measures approved by voters in 10 cities to tax cannabis.

The two candidates for attorney general, Los Angeles County District Attorney Steve Cooley and his San Francisco counterpart, Kamala Harris, represent different policy approaches, especially in regards to medicinal marijuana. After a nail-biting three weeks, Harris finally emerged as the winner by fewer than 60,000 votes out of nearly 9 million cast.

“For sure, the race for attorney general was the most important for the [medicinal marijuana] patient community, beyond a doubt,” said Kris Hermes, spokesman for Americans for Safe Access (ASA), a medicinal marijuana advocacy group.

Although medicinal marijuana was not a central issue in either candidate’s campaign, Harris has distinguished herself among medicinal advocates for simply not being an outspoken opponent of dispensaries, a position that Cooley took during the race. Both candidates, however, opposed Proposition 19.

Lauren Vazquez, director of the ASA’s Silicon Valley chapter, said Cooley’s record as the top prosecutor in Los Angeles County was decidedly “anti-marijuana.” If he had become attorney general, she said, “We probably (would have seen) a lot of crackdowns and a lot of lawsuits.” Cooley did not return several calls seeking his comment.

Law enforcement in Santa Clara County has begun following Cooley’s lead and conducting medicinal marijuana sting operations. Twenty-two people were arrested Sept. 30 in a bust called “Up in Smoke,” which targeted delivery services that authorities believe were operating illegally. Frank Carrubba, the county’s supervising deputy district attorney, cited a police conference in Los Angeles, which included Cooley, as motivation to contain the local growth of illicit dispensaries before they became as widespread as they are in Southern California.

Proposition 19′s defeat also obscured the passage of marijuana taxes in 10 cities. Since recreational pot remains illegal, these taxes will fall entirely on medicinal cannabis (unless they were contingent on the passage of Prop. 19). In San Jose, Measure U, which allows for a tax of up to 10 percent, passed by more than a 3-to-1 margin.

John Faulk, also known as Kool John, takes a deep breath as he waits for Prop. 19 results at the Oaksterdam University viewing party in Oakland. (Photo: Amanda Schwabb)

The Silicon Valley ASA’s website, SiliconValleyASA.org, argues that Measure U will drive patients back to the black market. Hermes isn’t so sure: “It’s just too difficult to tell at this point.” But he noted that the ASA strongly opposes additional tax measures “that are imposed on top of the already existing state sales tax,” which medicinal marijuana dispensaries must pay.

The San Jose City Council has scheduled a meeting for Dec. 13 to solicit community input on the final tax rate, and Vazquez has pledged to fight for as low a rate as possible.

Advocates of legalizing marijuana already have announced plans to return in 2012 with another initiative. Even so, the stakes for Proposition 19 were not nearly as high as they seemed, despite the excitement generated by poll after fluctuating poll. If the initiative had passed, it may not have even taken effect—in October, U.S. Attorney General Eric Holder vowed to enforce federal drug laws, setting up a potentially showdown between California and the Obama administration.

Regardless, the initiative’s passage would have resulted in only a small amount of real change. That’s because Gov. Schwarzenegger, citing law enforcement savings, signed a bill Sept. 30 reducing the penalty for possession of less than an ounce of marijuana from a misdemeanor to an infraction. The bill will go into effect Jan. 1, 2011.

“There’s really no difference between [possessing less than an ounce of marijuana] and getting a speeding ticket, as far as the resources that it takes for a police officer to handle it” under the new law, Carrubba said.

In addition, Proposition 19 would not have changed police procedure for possession of more than one ounce. From a law enforcement perspective, the new law will achieve much of what supporters hoped the initiative would do.

Tom Angell, a spokesman for the Yes on 19 campaign, stressed that the bill signed by Schwarzenegger’s does not address the underlying problem of violent crime in the drug trade. “It really does nothing to affect the black market violence associated with the illegal marijuana trade,” he said.

Roger Salazar, a spokesman for the No on 19 campaign, argued in turn that “the only way [Prop. 19] would impact [drug] cartels is if California became the main illegal exporter of marijuana in the country,” since gangs could presumably still profit off sales of marijuana in states other than California.

Surprisingly, the bill didn’t seem to change the course of the election. According to Wayne Johnson, strategist for the No on 19 campaign, polls were already trending against the initiative when the governor signed it. “We had already pretty much turned the corner,” he said. “From there forward, every poll got progressively worse.”

As legalization advocates gear up for 2012, they’ll need to craft an initiative that can convince voters that its passage would bring real change, not just a lot of publicity.


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