Contributor, The Volokh Conspiracy

Ohio Issue 3 – the seriously flawed marijuana legalization referendum initiative that I nonetheless defended because of its superiority to the status quo, has gone down to defeat. While not all of the votes have yet been counted, it is likely that it will lose by a large margin (currently 65-35, with 73% of precincts reporting).

I think it is unlikely that this represents a major reversal of longstanding public opinion trends favoring marijuana legalization. But it is too early to say that the defeat was solely or even primarily the result of Issue 3’s controversial monopoly provision, which restricted commercial production of marijuana to just ten politically favored businesses. The large margin of defeat suggests that it is possible that Issue 3 might have failed even without the crony capitalist aspect.

Still, the monopolistic element of the proposal was widely deplored even by many people who otherwise support legalization, myself included, and led some legalization advocates to oppose the measure outright, or at least sit out the fight over it. It’s hard to draft a legalization measure so badly flawed that even some libertarian organizations, such as the Ohio Libertarian Party and the Republican Liberty Caucus, oppose it. But the drafters of Issue 3 managed to achieve that dubious distinction. Hopefully, the failure of Issue 3 will pave the way for a “clean” legalization initiative in the near future. But in the meantime, large numbers of Ohioans will continue to be arrested and imprisoned for possessing or distributing marijuana.

Meanwhile, it looks like Issue 2 – the antimonopoly initiative intended to negate Issue 3 – looks like it may pass (currently leading with 52% of the vote). Although it’s immediate objective was rendered moot by the defeat of Issue 3, Issue 2 might potentially do some good in the future, by making it harder to enshrine other monopolies and cartels in the state constitution. Any future constitutional amendment with such a provision must now be sent back to the voters for a revote, under a complex procedure that will make it harder for it to prevail. However, it’s not clear what would happen if a future monopoly amendment included a provision repealing Issue 2, or simply stating that it does not apply to the amendment in question. In such a hypothetical case, both sides might have some strong arguments.

UPDATE: I have made a few minor revisions to this post.