This fall marks the busiest election season in Virginia’s election-every-year election cycle. The entire General Assembly will be on the ballot. So will multiple local offices – constitutional officers, boards of supervisors, school boards, even some soil and water conservation boards, perhaps our most obscure elected office.
Depending on what the General Assembly does in the next few weeks, there could be some additional contests that in some localities might overshadow all the others: Should localities allow retail sales of cannabis, the preferred term these days for what some of us know as marijuana.
You’ll recall that when Democrats controlled the General Assembly in 2021 they legalized personal possession of cannabis, marijuana, weed, pot, reefer, the devil’s lettuce, whatever your favorite term is. They did not, though, set up a legal retail market. They started to, but planned to come back in 2022 to finish the work. A funny thing happened on the way to reelection: Republicans won control of the House of Delegates, which threw a kink in the plans. Republicans last year could not come to terms on what, if any, kind of cannabis regulations they wanted, so nothing happened. That means Virginia now exists in a gray area: You can possess a certain amount of cannabis, but you can’t buy it or sell it.
Now two Republicans have introduced bills to regulate a legal cannabis market – HB 1464 by Del. Keith Hodges, R-Gloucester County, and HB 1750 by Del. Michael Webert, R-Fauquier County. It’s unclear whether either will pass. The devil is not only in the devil’s lettuce but the proverbial details. Democrats had very specific ideas about how a retail market should work: They wanted to use the law to promote social equity, specifically giving preference in licensing to those who had been convicted of cannabis offenses on the theory that we can make it up to people who have been punished for something that is now legal. Republicans generally think that’s simply rewarding law-breaking and prefer a more free-market approach. However, Republicans also fall into two camps: those who are uncomfortable with anything that signals acceptance of cannabis and those of a more libertarian bent who see setting up a legal market as a) good for economic development and b) a way to crack down on the black market.
The upcoming debate over cannabis is likely to be a three-way fight over those provisions – social equity vs. free market vs. doing nothing at all.
I will not hazard a guess about how all that turns out, except to say there’s probably a majority in both houses to do something because the current arrangement seems untenable for the long-term: It simply rewards old-fashioned drug dealers.
The thing that interests me here is a provision that’s the same in both the original Democratic bill and the Hodges and Webert bills: Retail sales are presumed legal unless a locality holds a referendum and votes for prohibition. (And even if local retail sales are banned, growing and processing is allowed.) The Webert bill would start issuing retail licenses on Jan. 1, 2024, with retail sales starting Jan. 1, 2025, which means any local referendums would have to be this year. The Hodges bill has later timing, with retail licenses being issued as of July 1, 2024, which presumably means referendums could be held into early 2024.
I’d like to jump ahead and assume that some version of these bills passes: Which localities are likely to ban retail sales?
On the one hand, that’s purely guesswork. On the other hand, we can make some educated guesses based on other states. Multiple states have held statewide referendums on whether to legalize cannabis – some have passed, some have failed. That’s not quite the question we’ll face – Virginia’s already legalized the stuff – but it’s a good placeholder question.
I’m going to make the assumption that more liberal localities will vote in favor of retail sales, or not bother to hold a referendum at all. The question is how conservative localities will vote. For that, we have two good guides in two undeniably conservative states: the referendums in South Dakota and Arkansas.
South Dakota in 2020 held a referendum in which 54% of voters cast ballots in favor of legalizing weed. The state Supreme Court later invalidated that vote on the grounds that the question was improperly worded. A follow-up referendum last year saw voters reverse course, with 53% voting no. Why the difference? One big one is that there were a lot more voters in the 2020 presidential year than in the 2022 midterms. The “no” side in 2022 got fewer votes than in 2020 but the “yes” side got even fewer: Many of the pro-legalization folks just didn’t bother to vote. Let that be a lesson!
For my purposes today, I’m going to err on the side of being conservative and go with the 2022 vote. If Virginia holds referendums this fall, it will also be in a non-presidential year so turnout will be lower.
Arkansas also voted down legalization last year, with 55% voting no.
So how can we use these two votes to predict what Virginia localities might do? Here’s how: Let’s look at the county-by-county votes in each state. In Arkansas, six of the state’s 75 localities voted “yes” in favor of legalization. Four of those were counties that in 2020 voted Democratic in the presidential election, but two were counties that voted Republican. That’s the question we’re trying to get to: How many Republican-voting counties in Virginia would vote for legal retail sales?
The two Republican counties in Arkansas that voted for cannabis were Mississippi County and Washington County. Washington County had voted 50.4% for Donald Trump in 2020 but Mississippi County had voted 59% for Trump. Given how close the vote in Washington County was in the presidential race, maybe the pro-cannabis vote there isn’t a surprise, but the vote in Mississippi County sure seems to be. The size of the Republican vote isn’t a perfect guide to how a county would vote: There were some counties that weren’t as strongly pro-Trump as Mississippi County was that still voted against cannabis. Still, here’s a 59% Republican county that voted for legal weed. If localities that voted up to 59% Republican in Virginia voted for legalizing retail cannabis, which localities would those be? Hold that thought.
In South Dakota, eight of 66 counties voted for legal cannabis. Six of those were Democratic-voting counties. The two Republican pro-cannabis counties were Brookings County and Minnehaha County. Minnehaha had voted 53% for Trump, Brookings 55% for Trump. As in Arkansas, there were some other counties in South Dakota that voted in the 50% to 59% range for Trump that voted down cannabis. What we can conclude from that is that a county that voted Republican in the 50% range in the presidential race isn’t a sure vote for legal cannabis but might be.
We also don’t know for a fact that counties that voted 60% or more Republican would vote down legal cannabis sales, we just know that no county that voted 60% or more Republican in Arkansas and South Dakota voted for legal weed. There can always be exceptions, but so far, that’s the electoral history we’re dealing with.
So, armed with those examples, let’s now look at Virginia.
Again, I’m assuming localities that voted Democratic in 2020 would vote for legal cannabis sales. By my math the most likely Republican localities to vote for legal cannabis would be Caroline County (51.1% Republican in 2020), Fluvanna County (51.4%), Lancaster County (51.6%), Nelson County (51.6%), Spotsylvania County (52.3%), Waynesboro (51.3%), Westmoreland County (53.5%) and York County (52.1%).
Those on the cusp – based on that 59% county in Arkansas – would be Culpeper County (59.0%), Cumberland County (56.8%), Dinwiddie County (57.6%), Fauquier County (57.5%), Goochland County (58.8%), Halifax County (57.0%), Isle of Wight County (58.4%), King and Queen County (59.4%), King George County (59.3%), Lunenburg County (58.9%), Mecklenburg County (57.1%), Nottoway County (56.8%), Orange County (59.9%), Prince George County (57.9%), Rappahannock County (56.4%), Roanoke County (59.9%), Salem (58.8%) and Southampton County (58.5%).
Smack in the middle would be Accomack County (54%), Buckingham County (55.9%) and Clarke County (55.6%).
In terms of markets, some of these votes may not matter. For instance, in the Roanoke Valley, by my calculations, Roanoke would approve retail stores so it may not matter that much what Roanoke County and Salem do. Cannabis customers would still have easy access to their legal weed. The Shenandoah Valley and Southside would be spotty, with retail stores in the cities but not the counties.
On the other hand, Southwest Virginia from Pulaski County all the way to the state line would be a weed-free zone, no matter how popular “Copperhead Road,” Steve Earle’s anthem about growing marijuana in Appalachia, might be.
This may not be a perfect guide, but for now it’s the only guide we have. Local referendums will probably mirror the occasional votes we have had on liquor by the drink (or the casino votes in Bristol and Danville), with one side arguing morality and the other side talking up tax revenues.
Now for the wild card: that 2020 cannabis vote in South Dakota. With a larger electorate, that year saw more widespread support for weed. In fact, one county that voted 72.2% for Trump voted 52% for weed. With a smaller electorate last year, the county voted 56.5% against legalization. Still, here’s a 72% Republican county that voted for legalization at one point; if you’re on the pro-cannabis side this shows you the importance of ginning up a large turnout. If 72% Republican counties in Virginia voted for retail sales, then our map looks quite different.
By that measure, all those localities above would vote for retail sales, along with lots of other places, including Alleghany County (71.4% Republican), Botetourt County (71.4%), Campbell County (71.0%), Franklin County (70.3%), Highland County (71.2%), Powhatan County (71.2%) and possibly Appomattox County (72.3%) and Augusta County (72.6%). Bristol at 68.5% Republican, Galax at 69.6% and Norton at 69.2% would be a decent bet to legalize retail stores, setting it up as having the only retail outlets west of Floyd County (66.1%), Giles County (66.7%) and Pulaski County (69.7%).
None of this is what legislators will be debating over the coming weeks but this could be the result.