Ballot initiatives can work well for some issues. If voters approve same-sex marriage, the state isn't required to change much in the way of laws and regulations. Gay and lesbian couples can head to existing courthouses and get married. The state then has to acknowledge the couples and give them marriage-linked benefits. At most, the government might need to alter some forms to be more inclusive or neutral toward gender.
But marijuana legalization can require setting up a huge regulatory framework for a brand new industry — a considerably larger venture than changing some forms. There are also different degrees of marijuana legalization that could be considered but aren't today due to limits in the ballot process.
Ballot initiatives typically lack nuance — often on purpose. The initiatives are kept simple to avoid voter confusion and campaign attacks over vague or complicated language. The measures also aren't friendly to trial-and-error, since political campaigns tend to avoid anything that can look risky or prone to failure.
This isn't necessarily legalization advocates' fault: legislatures rarely want to take on a hot-button issue like marijuana, leaving the ballot as the only option. Once the measures pass, legislatures are then legally unable or too politically risk-averse to change voter-approved measures.
As a result, some ideas favored by experts are never considered. Here are three policy ideas left out of ballot initiatives — in part because they might be too complicated, and also because they could be too controversial for a direct vote.
1) Different forms of taxation
In Washington and Colorado, retail marijuana is taxed at a percent of the sales price. In the initiatives on the ballot this year, recreational marijuana sales would be taxed based on each ounce sold.
Beau Kilmer, co-director of RAND Drug Policy Research Center, suggested it could be better to tax marijuana products based on the amount of THC, the main psychoactive compound in pot, they contain. That way, the actual effect is being taxed — both to raise revenue from the most potent products and deter heavy users who might consume stronger forms of marijuana, such as dabs or edibles, to placate their habit. "It's perhaps the best way to tax for intoxication," Kilmer argued.
Another model preferred by Mark Kleiman, a drug policy expert at UCLA, would put a production cap on the amount of marijuana that can be grown within a state. The state would then hand out a limited number of licenses, constrained by the government-set limit, to the highest bidders. All the revenue raised from this auction would go to state coffers. Unlike a sales tax, the system would directly limit supply and, as a result, provide the state more control over products and prices.
"I want to take seriously the slogan that drug abuse is a public health problem and not a criminal problem," Kleiman said. "The answer is you'd like to make [marijuana] relatively expensive — not so expensive that people start producing it illegally, but, within that limit, pretty expensive."
But these ideas are both much more complicated than simply pegging a sales tax to marijuana products. Not everyone knows what THC is or why it could be better to tax than actual marijuana products, and even experts are unsure about how to accurately measure and tax THC in plants and buds of pot. Similarly, it could be difficult for a campaign to explain why an auction model is necessary over a simple sales tax.
It's also possible that none of these approaches work best. But if ballot initiatives lock a state into a certain tax structure, it could be too difficult to change in the future.
"No one is going to get this right the first few times it's attempted," Kilmer said. "We don't know the best way to tax marijuana, and you don't want to get locked into a regime that you realize over time, 'Wow, that wasn't the best way to do this.'"
2) User-set consumption caps
One of Kleiman's favorite ideas for limiting marijuana abuse is letting consumers restrict how much they buy. Marijuana users would individually decide how much pot they can purchase on a monthly or annual basis, and they wouldn't be allowed to buy more than that.
This kind of approach isn't unprecedented. Uruguay, the first country to legalize marijuana, set a limit of 40 grams per month for all pot consumers, but Kleiman agreed that Uruguay's restrictive approach could just push people back to the black market or create a market for "super pot" that's high on THC but doesn't weigh much. At least with a user-set cap, some people might reasonably limit themselves without the drawbacks — although Kleiman acknowledged some people will set their limits too high.
"I'm pretty sure user-set quota has more advantages than disadvantages compared to no quota at all," Kleiman said. "Whether you should put a cap on that is a different question."
But Kleiman doubts such a scheme could ever pass through voters. It would be fairly experimental — even Kleiman conceded it might not work. And the finer details of such a system, including how the state would track people's marijuana consumption, would be fairly complicated and likely controversial for privacy advocates.
3) State monopolies
The state government could monopolize the sales and production of marijuana and sell it through state-run shops. This approach would give the state government total control over supply, prices, and who can access marijuana.
A report co-authored by Kilmer suggested this approach as one of many alternatives to the current legalization model. The report found that states that took this kind of approach with state-run liquor stores kept alcohol prices higher, reduced youth access to alcohol, and lowered overall levels of use and abuse.
"There's a fair amount of literature showing that from a public health perspective that kind of state monopoly approach was better," Kilmer said. "This may be the best approach for reducing the harms of prohibition but, at the same time, trying to keep protections on public health."
Federal prohibition, which remains in place even if states legalize marijuana, limits the possibility of this approach, since the state government can't compel state employees to break federal law by essentially acting as marijuana dealers.
But such an approach could run into trouble at the ballot box, even if it was federally permissible. Not only could the finer details be fairly complicated, but voters that want to legalize marijuana might not be okay with turning their state government into a pot dealer.
The problem, Kleiman and Kilmer emphasize, is that no drug policy is perfect. Turning the state into a drug dealer might seem like a wacky idea, but it could be better than a for-profit model that provides a financial incentive to sell to heavy drug users, and it's certainly better than a war on drugs that has fueled violent drug cartels. Voters are already being asked to decide between imperfect choices, even if they're not always aware of options beyond a yes or no at the ballot box.
"Legalization isn't necessarily this binary decision," Kilmer said. "The decisions you make about production and taxes and regulations, that's going to shape how this all plays out."