Detroit ballot fight: Pot as political football 

After court of appeals loss, city tries again to keep the question from voters

Marijuana is a political football in any Michigan municipality, but in Detroit the ball is getting more slippery of late.

Take the Court of Appeals decision on the Coalition for a Safer Detroit (CSD) vs. the Detroit Election Commission case a couple of weeks ago. A three-judge panel ruled two-to-one in favor of CSD. That means the city Election Commission has to put the question of legalizing possession of less than 1 ounce of marijuana on private property for adults in Detroit on the ballot of the next regularly scheduled election. If successful, this initiative would essentially legalize individual marijuana use in Detroit — although I'm guessing opponents will find some convoluted way of squirming around implementing it if it's passed. 

"It's almost anticlimactic in that it should have happened two years ago," says Matt Abel, director of the Michigan Chapter of the National Organization for the Reform of Marijuana Laws and the attorney who argued the case in front of Wayne County Circuit Court Judge Michael Sapala last year. Sapala ruled against CSD, but Abel feels vindicated by the Court of Appeals decision. 

"I was right," he says. "It's really well-settled law. The election law issue is so clear that they really should be sanctioned for their frivolous arguments here."

A little history: In 2010 the Coalition for a Safer Detroit ran a petition drive to put the question of legalizing marijuana in Detroit on the ballot. Although CSD fulfilled all of the conditions, including gathering enough valid signatures, to put the initiative on the ballot, the Election Commission refused to do so, claiming that if passed the ordinance would conflict with state law. CSD sued, and Judge Sapala ruled with the city against CSD. 

The coalition then appealed in the state court, which ruled that it was beyond the Election Commission's authority to assess whether the ordinance was legal or not. The majority opinion was written by Judge Henry Saad, a widely respected conservative Republican. 

This is where the political football starts getting slippery. Last week Detroit filed a motion to reconsider with the Court of Appeals, which attorney Tim Knowlton, who argued the appeal for CSD, says is just a delaying tactic by the city to give it more time to prepare an appeal. Otherwise the question should be on the August primary ballot. The city would have had 42 days from the date of the Feb. 10 opinion to appeal to the state Supreme Court. However by filing a motion to reconsider, for which the city cannot present more evidence, the city will have 42 days from whatever date the Court of Appeals decides whether to reconsider or not. Without new evidence presented, there's little chance the Court of Appeals will change its opinion.

"I don't know what game the city is going to play," Knowlton says. "If it plays it straight, then I expect the question on the August ballot. I've heard different scenarios about whether some people prefer this on the ballot in August or November. This is regarding voter turnout; there could be politics that way. The only way I see losing the case is having the [Michigan] Supreme Court overrule a long line of cases and say we're not doing citizen initiatives anymore. You don't have a right as an election commission or election official to consider the constitutionality of an ordinance and not put it on the ballot."

There is conjecture floating around about how it would affect voter turnout and election outcomes. Assume that having the question of legalizing marijuana in Detroit will raise voter turnout. Then the maneuver of delaying the question until November when high voter turnout in Detroit would favor President Obama's chance for re-election comes into play. Similarly, higher Detroit voter turnout in the August primary might help Reps. John Conyers and Hansen Clarke, whose district lines have been redrawn and include more suburban voters.

One thing that doesn't seem to be in doubt, whenever it gets on the ballot the ordinance will pass. Detroiters almost certainly will vote to legalize marijuana. 

"If it gets on the ballot, it wins period," says CSD leader Tim Beck. "Based on the poll numbers and the data that we've seen, this thing is going to pass overwhelmingly. We won't even have to run a campaign for it." 

When the Michigan Medical Marihuana Act passed in 2008, about 63 percent of Michiganders voted for it, but in Detroit the vote was 78 percent in favor.

The Election Commission and other opponents of the ordinance claim that state law supersedes a city ordinance. At the same time Michigan Attorney General Bill Schuette says that federal law supersedes the state medical marijuana act (while claiming state law trumps federal law when it comes to health care reform). 

It seems like anyone who doesn't like the local law claims some other law is pre-eminent. If the Detroit ordinance passes, police can still make arrests under state law — although in that scenario the city cannot collect fines after convictions. It's hard to see how a city under severe financial duress as Detroit is would want to take on the cost of arresting and trying suspects if it cannot recoup costs. Even the cost of fighting CSD in court is going to go up for the city; that could be especially true if the city appeals and loses.

"We're going to ask for costs," says Beck. "We never planned to do that until this level. We never put a demand for compensation for our legal fees, but we're going to do it now."

Beyond Detroit, activists in at least a few other Michigan cities (including Flint) have put or are trying to put Lowest Law Enforcement Priority (LLEP) ordinance initiatives on upcoming ballots. LLEPs direct police to give their lowest priority to marijuana possession. Meanwhile, there is a state constitution amendment initiative to decriminalize possession of small amounts of marijuana statewide. 

Beyond Michigan, activists in at least eight states have put the question of legalization on upcoming ballots or are in the process of trying to do so. Meanwhile, two governors (Christine Gregoire, D-Wash., and Lincoln Chaffee, R-R.I.) have petitioned the federal government to reclassify marijuana as a Schedule 2 drug, which would allow its medical use under federal law. 

With all this going on, it might seem that a vote in Detroit isn't that big a deal. But Dan Riffle, legislative analyst for the Washington, D.C.-based Marijuana Policy Project, disagrees.

"It's significant," he says. "Legally and practically it's not going to change much. But to have the majority of voters in the biggest city in Michigan say the possession of a small amount of marijuana should not be a criminal offense, this says a lot about how far politicians are behind the people on this issue. The voters of Detroit ought to have the right to say that."

And Detroiters probably will, in August ... or November. The bottom line is that anti-prohibition activists in Detroit and elsewhere are no longer playing defense. They've grabbed the ball, no matter how slippery, and have a clear view of the goal line. The defense may stall things by beating an ordinance here or there. But in the long run, as public opinions steadily change, marijuana activists are certain to score.

More by Larry Gabriel

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