The sneak attack on Amendment 64


The drug war dead-enders and nanny-statists who want to recriminalize marijuana in Colorado think they have hit on a cunning new strategy to do the deed.

They want the Colorado Legislature to put a constitutional amendment on the ballot this November that would repeal Amendment 64, the amendment that legalized marijuana in Colorado last fall, if the voters don’t approve the taxes on marijuana that will appear separately on the ballot.

On April 29, the Colorado House passed a bill putting a 15 percent excise tax and a 10 percent sales tax on pot.

For sheer creative sneakiness, the recriminalizers deserve some sort of a prize. Here are some of the political implications of what they are proposing:

• The recriminalizers would get their repeal Amendment 64 proposal put on the ballot by the Colorado Legislature, saving them the trouble and six-figure expense of collecting the 100,000-plus signatures that would be needed to put their scheme on the ballot via the petition route.

• The proposal would go to the voters in an election held in an odd-numbered year. Turnout in an odd-numbered year could be two-thirds less than turnout for a general election in a presidential year — like 2012 when Amendment 64 was passed. If past experience is any guide, the demographics most likely to go to the polls in November 2013 are Republicans and voters over the age of 65, the two groups most opposed the legalizing pot. By the same token, the two groups least likely to vote in 2013 are independents and voters under the age of 30, the two groups who voted most heavily in favor of Amendment 64.

• For anti-tax, anti-pot social conservatives, the proposal is a heaven-sent twofer. They can vote “yes” on the repeal Amendment 64, and then cast a “no” vote on the taxes to trigger the repeal, which will allow them to feel holy twice over.

• For nanny-state liberals, who live in state of constant fear that Colorado voters will turn thumbs down on any and all new taxes, the proposal may seem a heaven-sent way of coercing the great unwashed into passing the pot tax. This may explain why House Speaker Mark Ferrandino (D-Denver) called the proposal “worth the conversation” and Senate President John Morse (D-Colorado Springs) declared himself “absolutely supportive of the idea.”

All in all, pretty damned clever.

But perhaps too clever by half.

Mason Tvert, who led the campaign to pass Amendment 64, characterized the recriminalization proposal perfectly with one word: “extortion.”

“Placing such a measure on the ballot would amount to extortion of the voters,” he said. “Voters will be told that they must vote for whatever taxes the legislators choose in order to prevent the repeal of the constitutional amendment they approved last November.”

Tvert made a second point as well: Putting a proposal to recriminalize marijuana on the ballot in 2013 is very likely unconstitutional. Under the Taxpayer’s Bill of Rights (TABOR) provisions of the Colorado Constitution, the only measures that can be put on the ballot in odd-numbered years “are issues of government financing, spending, and taxation,” and Amendment 64 goes way beyond that. April 29, Tvert released a legal opinion from an attorney with the election law firm Heizer Paul Grueskin strongly agreeing with him. According to attorney Edward Ramey, in as much as Amendment 64 could not have been put on the ballot in an odd-numbered year under the provisions of TABOR — since it speaks to much more than taxes, spending and government finance — an amendment to repeal it could only appear on the ballot in an even-numbered year.

It might come as a surprise to the recriminalization proposal’s perpetrators, but Americans tend to deeply resent the sort of sleazy squeeze play they are pushing. Voters can respond to this sort of scheme with an anger and fury that transcends the metrics of political demographics and can knock the most sophisticated political calculation into a cocked hat.

The instinctive reaction of a voter who thinks he is being threatened, coerced and bullied is to vote “hell no.” Democrats who think a recriminalization ultimatum is the way to get the marijuana taxes approved may discover that voters reject both the recriminalization proposal and the taxes — just to make it clear they are not going to be pushed around.

The real irony here is that a recent poll — of 900 registered Colorado voters, done by Public Policy Polling April 15-16 — found overwhelming support for the 15 percent excise tax and the 10 sales tax on pot. Seventy-seven percent of those polled supported the two taxes.

About the only thing I can think of that could cause that sort of support to turn into “no” votes would be to threaten voters with the sort of ham-fisted political extortion that the recriminalization proposal represents.

One final point. In politics, friends come and go. Enemies accumulate. Make enough enemies, and you will destroy your political career, your political party and everything you value in public life.

Lawmakers, especially Republican lawmakers, who find the recriminalization scheme seductive, should remember that a vote to recriminalize marijuana is really a vote to recriminalize people — hundreds of thousands of them. That is not a clever thing to do. It is an obscenely evil one, and the people you vote to turn into criminals again will be your enemies for life.