Will efforts to legalize marijuana in California go up in smoke?

Downtown Oakland on a sunny, bright June day, and the air outside the Marriott City Center hotel is fragrant with, ahem, opportunity.

Inside a massive banquet hall, thousands of besuited pot industry people pack the seats, aisles and walls to hear Lt. Gov. Gavin Newsom deliver the 11 a.m. keynote.

Newsom—the highest ranking official in California to ever embrace the cannabis users rights movement—didn't just come to honor the National Cannabis Industry Association before him. He came to give it a cold shower.

Proposition 64—the Adult Use of Marijuana Act—has many supporters, but also detractors, even among medical marijuana activists. Progressives worldwide might be ebullient at the idea of a certain win for legalization this November 8, but, “It's not a done deal by any stretch of the imagination. If any of you think this thing is done in California you couldn't be more wrong,” Newsom said by way of opening.

You could hear a bud drop. The former San Francisco mayor is the father of four, founder of the boutique winery PlumpJack and his wife is against legalization, he told the crowd.

He’s fought the gay marriage wars and he’s in the trenches on gun rights, and yet the lieutenant governor is worried about weed’s chances.

“We’re trailing the rest of the nation in terms of public opinion on legalization,” he said. “Remember—it was just a few years ago voters rejected legalization. Remember —they passed [gay marriage ban] Prop. 8 in California not that long ago.

“So don’t just think that this is a universal state, and pluralism is our middle name,” he added. “Progressive values have gotten mostly Democrats in statewide office, none of whom support legalization—publicly.”

Newsom compared working pot legalization to gun control, noting how gun control efforts have been vastly more grassroots this year.

Later in the day, locals and Coloradans alike sat dazed, digesting the news while sipping beers in nearby bars.

“I had no idea it was this close,” one of them tells me.

Failure is an option

California will not legalize marijuana in the 2016 general election—unless voters plan on actually doing something about it. Overconfidence has become public enemy No. 1 for cannabis law reform, experts say.

Prop. 64 would legalize 1 ounce in public for adults 21 and over, and the personal growing of six plants. It licenses and regulates the commercial cannabis trade and is supported by perhaps 61 percent of voters, according to a mid-August poll from Probolsky Research.

But Prop. 64 is underfunded and vulnerable in California—a massive, diverse state of 39 million people, far more than in the population of the largest legalization state so far, Washington, which has 7 million.

While 61 percent in support sounds nice, it’s somewhat soft support. And the opposition has potentially millions of dollars to drag down those numbers by scaring voters with boogeymen like weed advertising to kids, pot brownie poisonings, increased road deaths and diminished life ambitions.

“My belief is it’s not going to pass,” said Roger Morgan, director of the Coalition for a Drug Free California and No on 64 leader during a July 24 Q&A session at the San Francisco Commonwealth Club. “We fought this battle four years ago with Prop. 19.”

Morgan notes that 83 percent of California cities and counties already ban medical pot cultivation.

Sacramento is the perfect example of the issue’s challenges. The city is a shining beacon of safe access in city limits, surrounded by quintessential suburban bans on sometimes the cultivation of a single plant, with city and county officials sometimes differing radically on solutions.

Morgan said he is trying to access $50 million in federal anti-drug funding to spread his message to parents and teachers that “the human brain is permanently damaged” by marijuana, he said.

“We don’t grow any other crops that basically poison people,” he said. “I think it’s insanity.”

Morgan and No on 64 also will get billions of dollars more in free institutional support from certain unions, law enforcement groups and U.S. Sen. Dianne Feinstein, as well as coverage from news outlets. Combined with other electoral factors, the ballot measure could easily fail.

And, if Prop. 64 fails, it will be a terrible setback for social justice, Newsom notes.

“If it is defeated it will set back this movement in California for years and years, and it will set back the movement for regulated adult use across this country for years and years. Do not take California for granted,” Newsom said at that Oakland gathering.

Steve Fox, a veteran reformer at the Marijuana Policy Project in Washington, D.C., agrees.

“If California loses, but we win a few other states, that would probably be considered mostly a disaster,” he said.

It will certainly be a disaster for the next crop of cannabis prisoners and their families.

Newsom points out that cannabis prohibition in California leads to roughly 20,000 arrests each year, according to the most recent data from California NORML. Those arrests are mostly black and brown young men, who we all pay to imprison, make more dangerous and less employable. Likewise, pot arrests are a leading driver of America’s mass incarceration epidemic, according to 2012 numbers from FBI Uniform Crime Reporting, creating a climate of automatic criminality for what amounts to a personal health decision.

“It’s a war on the poor and it’s a war on folks of color and it’s got to end,” Newsom said. “And the only way you end it is by going to the most destructive and the most ineffective part of that war, and that’s the war on cannabis.”

“I was a few years old when California had 20,000 people in prison. It wasn’t that long ago. 1977,” Newsom said. “In 2007, we had 173,000 in our California prison system.”

Defeat would also mean a disaster for the state’s economy.

Each year California also loses about $1 billion in tax revenue on its robust and popular cannabis trade, and wastes tens of millions of dollars in adjudication. We can’t measure the incalculable losses from prohibition-related job firings, family breakups and life course derailment.

And prohibition hasn’t worked, public health experts conclude. Kids have always had high access to marijuana and about half of Americans have tried it, the RAND Drug Policy Research Center reports.

Newsom seems genuinely haunted by political inaction on the issue.

“There’s a billboard on the 405 freeway in L.A.—one of the most congested freeways in the U.S.—that says, ’You’re Not Stuck In Traffic.’ You get 100 yards closer in 20 minutes, and in small letters underneath in parentheses it says, ’You Are Traffic.’

“I don’t want to be that guy. I don’t want to be on a panel with ex-politicians talking about what I coulda shoulda done,” he said. “It’s lack of courage and lack of conviction, and all the while, real people suffer. If you sit by and you do nothing—you’ve done everything. By abdicating any responsibility for the world we live in.

“So this has happened on my watch. This has happened on your watch,” he said.

In the crowd at the Marriott, the heads nod.

Reform, support and the Trump effect

There are three things that keep one of America’s leading cannabis law reformers, Marijuana Policy Project director Rob Kampia, up at night: Nevada, Arizona and Donald Trump.

It’s later that Tuesday in Oakland at the Marriott, after Newsom’s cold shower. We’re in a hard-to-find side room packed with politicos, and the hard facts keep coming: Kampia rattles off that currently all nine legalization campaigns nationwide are underfunded.

Prop. 64 has reported $11 million in campaign fundraising, which sounds like a lot, until you note that it has cost about a buck a voter to win legalization so far.

By and large, advocacy groups and wealthy philanthropists have chipped in to Prop. 64, while the industry and consumers have barely contributed.

“California polling is good, but we can’t take anything for granted,” Kampia tells the crowd.

“California has a history of real money being raised for the opposition side. The last several election cycles—for marijuana legalization or criminal justice reform—did see various wealthy interests opposing reform.”

That includes former gubernatorial candidate Meg Whitman, Sen. Dianne Feinstein, some native American tribes and “always the police establishment and prison guards union,” he said. “The owner of the San Diego Chargers opposed us in 1996.”

Over in Nevada, legalization is threatened by Florida casino magnate and Republican superdonor Sheldon Adelson. Adelson used his fortune to deny Floridians medical marijuana in 2014. He also bought a Las Vegas newspaper that subsequently switched from supporting legalization to opposing it.

Marijuana Policy Project is planning muscular ad buys in Nevada and Arizona to immunize voters to an Adelson-funded scare campaign. The same type of fear campaign could be coming to California.

“There is going to be money for the opposition. We just don’t know how much. Please don’t be complacent in California,” Kampia said.

The No on 64 campaign has reported raising just $185,000 so far, part of a $2 million war chest to fight legalization nationwide.

A large infusion from one wealthy Republican donor could sink Prop. 64, said anti-legalization leader Kevin Sabet at Smart Approaches to Marijuana.

“I think it’s vulnerable given how spread thin the legalization movement is nationwide,” he said.

The “no” side has to raise a fraction of the money of the “yes” side to run advertising that peels off just enough swing voters to ensure a defeat, experts note.

“If the opponents raise 25 percent of the funds that the pro side has, I would put it at 80 percent chance of going down,” Sabet said.

According to a No on 64 poll conducted by SmithJohnson Research in August, support for the initiative drops from 61 percent to 40 percent after voters read one negative argument about TV advertising.

National forces are at work in the election, too. Kampia explained how a President Trump would likely lead to an Attorney General Chris Christie, who would tear up the federal cease-fire on state-legal pot and send the industry back into the shadows. Christie publicly opposes medical and adult-use legalization.

Even the mere presence of Trump on the ballot promises to distort the pot legalization vote, watchers say.

On one hand, Trump promises to drive out progressive voters and depress core conservative turnout, which should be good for weed.

But Trump’s racist, xenophobic stance on immigration has galvanized California’s vast ranks of Latinos, who are going to turn out in droves to vote against mass deportations and the building of a border wall. And those older Latino voters are among legalization’s biggest foes.

There are other challenges, too. Proposition 64 is 30,000 words long, for example. As such, it’s become something of a Rorschach inkblot psychological test for voters. In those dozens of technical pages—which mention the word “tax” 127 times and the word “punish” 32—some voters see whatever it is they want to see.

Some see a statewide tax bonanza with an estimated $1 billion in annual revenue.

Others see a ploy by multinational corporate conglomerates to take over legal weed, even though Prop. 64—and federal prohibition—keeps big business out.

Some see in Prop. 64 a trap that will actually lead to more pot arrests, not less. It’s because they’re not lawyers and they misread the text, or paranoia or both. Prop. 64 contains unprecedented rollbacks of the drug war, fully legalizing the most common pot activities and decreasing penalties for related marijuana crimes that remain illegal.

If there’s one thing balancing all this uncertainty, it’s that for the first time ever in California a legalization bid has been pretested with voters, and is being run by team of professional campaign operatives day to day.

In 2015, Newsom led an ACLU Blue Ribbon Commission through months of public and private hearings with all sides before drafting the initiative’s language. The Yes on Prop. 64 campaign is being run out of veteran consultant Gale Kaufman’s office in Sacramento, with high-powered spokesperson lobbyist Jason Kinney.

“I don’t think we’re overreaching,” said initiative proponent and former Fish and Game Commissioner Michael Sutton, during the Commonwealth club debate. “We’ve done our homework.”

Fact, fiction and big money

The optics of legalization look a lot better than in 2010.

Six years ago with the failed Prop. 19—which lost 46 percent to 54—the face of the campaign was an Oakland pot college chancellor Richard Lee—a paralyzed former rock show roadie in a wheelchair, afront a gaggle of reformers. In a presidential off-year where the youth vote stayed home, and the funding never materialized, Prop. 19 failed after Attorney General Eric Holder flew into Los Angeles and promised a federal crackdown.

This year, the initiative is backed by the second in command of the entire state, with the support of the California Medical Association, the California Democratic Party and the California NAACP.

Prop. 19 failed to carry California’s pot-growing counties. This year, Prop. 64 is also endorsed in the industry by the likes of The Emerald Cup’s Tim Blake, and Harborside Health Center’s Steve DeAngelo, as well as the California Cannabis Industry Association and national NORML.

And at the front are the official proponents—including Michael Sutton, and former CMA board member and physician Donald Lyman.

In a July interview, Sutton was bullish on Prop. 64. “It’s probably going to be a landslide as these things go,” he said.

Yes on 64 won’t need $22 million to win, he added. “I don’t think it’s going to have to get that high. It’s comparatively well-funded and that’s important.”

Sutton said voters can expect to see more Yes on 64 advertising on TV, radio and print and more arguments on both sides of the issue. Snoop Dogg and Wiz Khalifa also ran a voter registration campaign at their latest series of California shows.

But confounding Yes on 64 will still be 80 years of cultural inertia and propaganda and fear.

No on 64 groups are saying—largely without basis—that the ballot measure would result in an uptick in accidents and crime: more highway fatalities, and more impaired driving; it would allow marijuana growing near schools and parks and would erode local control, increase black market and drug cartel activity, allow marijuana smoking advertisements to be aired and would hurt underprivileged neighborhoods.

What, if any of this, is actually based on truth? In fact, highway fatalities are down in Colorado, according to the National Highway Traffic Safety Administration. Prop. 64’s language also reinforces local control and numerous studies, including one from the RAND Drug Policy Research Center, have shown that legal cannabis pushes out illicit markets. Federal Communications Commission regulations bar pot ads on TV and radio, and Prop. 64 would also earmark tens of millions per year for the precise neighborhoods impacted by the current drug war.

But none of that is taken into account by opponents such as Roger Morgan, the No on 64 leader.

“It all starts with marijuana,” he said, invoking the discredited gateway theory. “About 99 percent of people went who went on to other drugs started with marijuana. If you want to stop the opiate problem you got to go back and stop the marijuana problem.

“What is being sold today as medical marijuana is a far cry from what was available five thousand years ago.”

His litany of marijuana complaints is lengthy.

“There’s a tremendous link between marijuana use and schizophrenia. Mental illness will ruin your life,” Morgan said. “[Pot] also causes mutations to sperm and chromosomal abnormalities.”

Morgan’s solution calls for a return to the past.

“I think we need to renew our vows to America,” he said. “I don’t think you can say ’[The war on drugs] has been a failure.’ I think it’s a failure of leadership.”

Stoners against legalization

There are two final troubling things about Prop. 64’s prospects.

The first one is turning out the youth vote, in an election where each presidential candidate has the lowest favorability ratings since record-keeping began.

This mass of young voters often thinks legalization is a done deal, and that they don’t have to show up in November, operatives say.

For example, rapper Wiz Khalifa—who supports Prop. 64 and lives in Los Angeles—told me in a recent interview for Cannabis Now Magazine that he wouldn’t be voting for legalization this year. He thinks it’s inevitable.

Khalifa’s not the only one who may let apathy decide marijuana’s future in California.

If Prop. 64 is close, it could come down to college students who forget to register in their new town, or people who miss the registration deadline or skip voting day.

Lastly, there’s the proposition’s weakness among some die-hard influential cannabis insiders and industry.

So far, the most notable anti-legalization rally held in the state didn’t occur in some rural suburb, and it wasn’t led by police and school moms and pastors. The rally happened in Santa Cruz on July 30, led by a smattering of the movement’s own, including medical marijuana Prop. 215 figure Dennis Peron.

For a variety of reasons, many hardcore marijuana law reformers are actively campaigning against Prop. 64. It’s partially sour grapes. Almost a dozen other initiatives failed to make the ballot, after support coalesced around what’s now called the Adult Use of Marijuana Act. Some activists dislike the 1 ounce and six plant limits, and incorrectly think AUMA touches Prop. 215 rights.

But the most ardent stoners against legalization tend to be motivated by sheer self-interest.

“I’m sorry, I’m going to vote no. I’m against legalization,” one lifelong grower in Grass Valley told me during an August radio call-in segment on KQED’s Forum. He explained he was afraid about what taxes and regulations will do to his livelihood.

And many share his concerns.

About half of the members of the California Growers Association are opposed to legalization, said director Hezekiah Allen. California Cannabis Industry Association director Nate Bradley said plenty in his group would prefer to not pay taxes or follow regulations, if possible.

“The initiative is not perfect. God knows it’s not perfect,” Newsom said. “It’s extraordinary that we even got one initiative on the ballot. One of smartest things we did is, we drafted initiative language that allows us to make fixes without going back to the voters. We will make fixes. We will adjust.”

That precise legal flexibility triggers cynics’ fears about a post-legalization takeover.

Also dragging down the vote is that plenty in this camp—and around the world—think California has already legalized marijuana. When you can get your medical card at Amoeba Records on Haight Street and order buds to the street corner in 15 minutes using Eaze on your smartphone, it can feel pretty legal.

But, of course, it’s not: 155,000 Californians were arrested for pot between 2010 and 2014, said Ellen Flenniken, managing director for development at the Drug Policy Alliance and Prop. 64.

“Marijuana is not legal in this state yet, so debunk that myth,” she said. “California is not going to be easy.”