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Colorado Marijuana Legalization Ballot Initiative Loses Ground

  • November 1, 2012

Colorado voters are considering an amendment to the state constitution that would allow the “personal use and regulation of marijuana” for adults 21 and over. What matters most in the November 6th ballot initiative? The women’s vote. According to SurveyUSA polls, opposition against Amendment 64 among Colorado women voters seems to be growing. 

SurveyUSA’s mid-October poll for The Denver Post found that women voters in Colorado are opposed to Amendment 64 by a margin of 48-to-40 percent.  Just a month earlier, the same pollster found Colorado women supporting marijuana legalization by a 49-to-39 percent margin. 

Overall voter support for Amendment 64 still leads by 48-to-43 percent.  This underscores a steep decline from a June 2012 Rasmussen poll that alarmingly showed Amendment 64 supported by a margin of 61-to-27 percent. 

The support for Amendment 64 primarily comes from males (56 percent support) and people aged 18-to-34 (56 percent support), according to the SurveryUSA poll. The Denver Post reported that those who support legalization include 300 Colorado doctors, the Democratic Party of Colorado, the Colorado bureau of the NAACP, and singer Melissa Etheridge. 

Opponents of legalization (who came relatively late in the game), according to The Denver Post, include Colorado Governor John Hickenlooper, Denver Mayor Michael Hancock, the Denver Metro Chamber of Commerce, the Colorado Education Association, the Colorado Chapter of the American Pediatrics Association, the Downtown Denver Partnership, and “several law-enforcement organizations.” 

Amendment 64, similar to ballot initiatives in Washington and Oregon, would take the unprecedented step of legalizing marijuana. Heretofore, marijuana advocates have succeeded only on “medical-marijuana” initiatives and, to a much lesser extent, on decriminalization. Many of those initiatives have been defeated. The 2006 initiative in Colorado was defeated by 59 percent of the voters. 

Amendment 64 would legalize the use and possession of up to an ounce of marijuana for people 21 and older. Significantly, Coloradoans also would be allowed to grow as many as six marijuana plants in their homes. One marijuana plant can produce as much as 80 ounces of marijuana (which could equal as much as 9,600 joints). 

If adopted by voter referendum, Amendment 64, like Initiative 502 in Washington and Measure 80 in Oregon, would directly contradict the federal Controlled Substances Act and likely would be subject to intense and prolonged litigation based on conflict with federal law and federal enforcement. 

The adoption of Amendment 64 would mean a major headache for employers. Amendment 64 would dramatically alter employers’ rights and responsibilities in their substance-abuse-prevention programs.  For instance, employers’ ability to take adverse-employment action against employees for drug-test positives for marijuana, to deny employment to job applicants who test positive, or to prohibit off-the-job use could be curtailed. 

At the very least, employers might face a greater burden of showing the detrimental impact in the workplace of an employee’s marijuana use (i.e., impairment) before taking adverse-employment action. 

Moreover, Colorado employers would be at a distinct competitive disadvantage vis-à-vis employers in non-marijuana-legalization states and, of course, internationally.  This is because of the strong causal nexus between marijuana use (and other illicit drug use) and decreased productivity, as well as increased accidents, absenteeism, health-care-utilization rates, employee theft, and turnover. 

The City of Boulder (along with the City of San Francisco and Maine) already has one of the most restrictive drug-testing laws in the country. 

If you have any questions regarding the legalization initiative or other workplace developments, please contact the Jackson Lewis Drug Testing and Substance Abuse Management practice or the attorney with whom you regularly work.

©2012 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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