I. Today’s Marijuana Landscape

Despite marijuana’s continued federal classification as a Schedule I controlled substance,[1] 26 states and the District of Columbia have passed laws at least partially decriminalizing marijuana possession and recreational use.[2] A majority of Americans now live in states where marijuana is legal for recreational use,[3] and nearly three-quarters of Americans live in states that have legalized marijuana for either recreational or medical sales and use.[4] Currently, 14 states have only legalized medical use,[5] while 24 states and the District of Columbia have implemented regulatory schemes for both medical and recreational use.[6] Of the remaining 12 states where marijuana is still illegal, possession is decriminalized in two states.[7] The map below illustrates these categories.[8]

II. How States Can Change Their Marijuana Laws

Historically, states begin their marijuana policy changes with decriminalization, followed by implementing medical marijuana regulatory programs, and then passing recreational marijuana regulatory programs. The three mechanisms for the implementation of state regulatory programs via marijuana laws are direct legislative action, legislative referrals, and ballot initiatives.

Legislative action is classic representative democracy — bills must pass both chambers[9] and be signed by the governor before they become law. The alternative to representative democracy is direct democracy, in which citizens themselves vote without legislators as proxies. The forms of direct democracy that can change marijuana laws are legislative referrals and ballot initiatives.

A legislative referral means that the legislature places proposed legislation on the ballot to face a popular vote.[10] Every state except Delaware requires legislatures to obtain voter approval to amend their state constitution.[11] In most states, legislatures can also refer state statutes to voters (this is also called a referendum bill).[12]

Like legislative referrals, ballot initiatives also require voter approval, but the initiative process is led by citizens instead of legislators. Citizens can place their proposals on the ballot if enough voter signatures are collected in support of the proposal.[13] Eighteen states allow citizens to initiate state constitutional amendments, and 21 allow initiated state statutes.[14]

III. Methods States Used to Legalize Medical Marijuana

In 1996, California became the first state to permit the use of medical marijuana. Proposition 215, also known as the Compassionate Use Act, was an initiated state statute.[15] The next six states that legalized medical marijuana (Alaska, Nevada, Oregon, Washington, Maine, and Colorado) also did so through ballot initiatives. Since 2000, however, more states have legalized medical marijuana through legislation than through ballot initiatives. Most recently, Kentucky’s legislature passed SB 47, creating a medical marijuana program.[16] Of the 38 states that have legalized medical marijuana, 18 have used ballot initiatives, while 20 have used legislative action. The chart below illustrates these methods over time.

IV. Looking Ahead: Medical

Marijuana remains completely illegal in 12 states (and remains federally illegal). Though time is running out for major change in 2024, several states might pass medical marijuana measures in the near future.

North Carolina: On June 26, North Carolina’s Senate voted to legalize medical marijuana, but the bill faced more opposition in the House.[17] Unfortunately, North Carolina does not allow citizen-initiated ballot measures (or legislatively referred statutes), so direct legislation or a legislatively referred constitutional amendment are the only ways to legalize medical marijuana.[18]

Nebraska: Although Nebraskan voters gathered enough signatures to put medical marijuana on the state’s 2020 ballot, the Nebraska state Supreme Court struck down the initiative.[19] In 2022, Nebraskans failed to collect enough signatures to place the issue on the ballot.[20] This year marks the third attempt at a ballot initiative — advocates met the signature requirements, but it remains to be seen if this attempt will be successful.[21]

Idaho: For the second time, an Idaho political action committee failed to collect sufficient signatures to place medical marijuana legalization measure on the ballot.[22] Idaho is one of the four remaining states where marijuana is not decriminalized, and all marijuana is illegal — the other three states are Kansas, South Carolina, and Wyoming.[23]

South Carolina: Legislators in South Carolina once again let the clock run out on a medical marijuana bill that was introduced in 2022.[24] However, some lawmakers indicated that they might revisit the bill next year.[25]

Wisconsin: In 2025, Wisconsin legislators might revive their efforts to pass a limited medical marijuana bill.[26]

V. Methods States Used to Legalize Recreational Marijuana

In all 24 states that allow recreational marijuana, recreational legalization occurred after medical legalization, normally with a several-year gap.[27] Colorado and Washington were the first states to legalize recreational marijuana in 2012, 12 and 14 years after they legalized medical marijuana, respectively.[28]

The chart below illustrates when and how states legalized recreational marijuana. In a trend similar to medical marijuana’s timeline, the first nine states to legalize recreational marijuana used ballot initiatives. However, legislatures slowly caught on — nine out of the 15 states that followed legalized recreational marijuana through legislation, while two states put the issue on voters’ ballots through legislative referrals.

VI. Looking Ahead: Recreational

Currently, 14 states permit marijuana for medical use only. In 2024, several of these states made efforts to also allow recreational use. As of June 26, however, the only states that might make that change this year are Florida and South Dakota.

Florida: Florida voters gathered enough signatures to place a recreational marijuana constitutional amendment on their 2024 ballot.[29] This is the state’s fifth attempt to legalize recreational marijuana, and voters must approve it by a 60% supermajority.[30]

South Dakota: South Dakotans approved both medical and recreational marijuana use on the same ballot measure in 2020.[31] However, their state Supreme Court struck down the recreational portion of the measure because state constitutional amendments must cover only one subject.[32] After failing to collect enough signatures for the 2022 ballot, voters met the threshold this year and are waiting on their secretary of state to validate the signatures.[33]

Hawaii: In 2000, Hawaii was one of the earliest states to legalize medical marijuana. In both 2023 and 2024, Hawaii’s Senate approved recreational legalization bills that then died in the state’s House.[34] Of the first 20 states that allowed medical marijuana, Hawaii is the outlier as the only state that has not yet legalized recreational marijuana.[35]

New Hampshire: New Hampshire is the only remaining New England state that has not legalized recreational marijuana.[36] Despite multiple efforts, this year’s legalization bill has been tabled for the following session.[37]

* a 2024 summer associate with Troutman Pepper who is not licensed to practice law in any jurisdiction, contributed to this article.

[1] See 21 U.S.C.A. § 812; see also Lisa Sacco, Cong. Rsch. Serv., IN11204, The Schedule I Status of Marijuana (2022), https://crsreports.congress.gov/product/pdf/IN/IN11204.

[2] See Kate Bryan, Nat’l Conf. of State Legislatures, Cannabis Overview (June 20, 2024), https://www.ncsl.org/civil-and-criminal-justice/cannabis-overview.

[3] See Athena Chapekis & Sono Shah, Most Americans now live in a legal marijuana state – and most have at least one dispensary in their county, Pew Research Center (Feb. 29, 2024), https://www.pewresearch.org/short-reads/2024/02/29/most-americans-now-live-in-a-legal-marijuana-state-and-most-have-at-least-one-dispensary-in-their-county/.

[4] See id.

[5] Effective in 2025, Kentucky has a medical marijuana program. See Kentucky Office of Medical Cannabis, https://kymedcan.ky.gov/Pages/index.aspx.

[6] See Katherine Schaeffer, 9 Facts about Americans and Marijuana, Pew Research Center (Apr. 10, 2024), https://www.pewresearch.org/short-reads/2024/04/10/facts-about-marijuana/.

[7] Nebraska and North Carolina do not have medical or recreational marijuana programs, but possession is decriminalized. See Kerry Breen & Taylor Johnston, Maps show states where weed is legal for recreational, medical use in 2024, CBS News (May 17, 2024), https://www.cbsnews.com/news/legal-weed-map-states/.

[8] See Marijuana Legality by State, DISA Global Solutions (June 6, 2024), https://disa.com/marijuana-legality-by-state.

[9] Nebraska is the only state with a one-chamber legislature. See State Legislature, Ballotpedia, https://ballotpedia.org/State_legislature#:~:text=Every%20state%20(except%20Nebraska)%20has,%2C%20or%20one%2Dchamber%20legislature.

[10] See Legislative Referral, Ballotpedia, https://ballotpedia.org/Legislative_referral.

[11] See id.

[12] See id.

[13] See Ballot Initiative, Ballotpedia, https://ballotpedia.org/Ballot_initiative.

[14] See id.

[15] See Medical Cannabis Guidelines, Office of The Attorney General, https://oag.ca.gov/medicinal-cannabis.

[16] See S.B. 47 (Ky. 2023), https://apps.legislature.ky.gov/record/23rs/sb47.html.

[17] See Tom George, NC lawmakers push again to legalize medical marijuana after years of efforts going up in smoke, ABC News (June 25, 2024), https://abc11.com/post/medical-marijuana-nc-lawmakers-renew-push-legalize-pot/15000126/.

[18] See Types of ballot measures in North Carolina, Ballotpedia, https://ballotpedia.org/Types_of_ballot_measures_in_North_Carolina.

[19] See Nebraska medical marijuana referendum takes key step, MJBizDaily (May 20, 2024), https://mjbizdaily.com/nebraska-medical-marijuana-referendum-takes-key-step/.

[20] See id.

[21] See Zach Wendling, Medical marijuana advocates turn in signatures seeking Nebraska ballot access, Nebraska Examiner (July 3, 2024), https://nebraskaexaminer.com/2024/07/03/medical-marijuana-advocates-turn-in-signatures-seeking-nebraska-ballot-access/.

[22] See Eric Sandy et al., 11 States That Could Legalize Cannabis in 2024, Cannabis Business Times (Jan. 22, 2024) https://www.cannabisbusinesstimes.com/news/states-that-may-legalize-cannabis-in-2024/.

[23] See Kerry Breen & Taylor Johnston, Maps show states where weed is legal for recreational, medical use in 2024, CBS News (May 17, 2024), https://www.cbsnews.com/news/legal-weed-map-states/.

[24] See Skylar Laird, Medical marijuana in SC likely dead, again, as House lets clock run out, South Carolina Daily Gazette (April 30, 2024), https://scdailygazette.com/2024/04/30/medical-marijuana-in-sc-likely-dead-again-as-house-lets-clock-run-out/.

[25] See id.

[26] See Scott Bauer, A Republican plan to legalize medical marijuana in Wisconsin is dead, AP News (Feb. 15, 2024), https://apnews.com/article/wisconsin-medical-marijuana-0dd31ff012722579c0cf09dcf7c621c9.

[27] See Where marijuana is legal in the United States, MJBizDaily (Nov. 14, 2023), https://mjbizdaily.com/map-of-us-marijuana-legalization-by-state/.

[28] See id.

[29] See Richard Luscombe, Florida’s other big November vote: will the state legalize weed?, The Guardian (May 19, 2024), https://www.theguardian.com/us-news/article/2024/may/19/florida-legalize-marijuana.

[30] See Jorge Borges, Florida Marijuana Legalization Initiative Heads For November Ballot, Tampa Free Press (June 26, 2024), https://www.tampafp.com/florida-marijuana-legalization-initiative-heads-for-november-ballot/.

[31] See Jack Dura, Recreational marijuana backers try to overcome rocky history in South Dakota, AP News (May 7, 2024), https://apnews.com/article/south-dakota-recreational-marijuana-ballot-initiative-79f4eabec4fbc6b136ae6f63d7485610.

[32] See id.

[33] See id.

[34] See Daryl Huff, Citing potential impacts, House leaders kill proposal to legalize recreational marijuana, Hawaii News Now (Apr. 2, 2024), https://www.hawaiinewsnow.com/2024/04/03/citing-potential-impacts-house-leaders-kill-proposal-legalize-recreational-marijuana/.

[35] See Where marijuana is legal in the United States, MJBizDaily (Nov. 14, 2023), https://mjbizdaily.com/map-of-us-marijuana-legalization-by-state/.

[36] See New Hampshire remains New England’s lone holdout against legalizing recreational marijuana, AP News (June 13, 2024), https://apnews.com/article/marijuana-legalization-new-hampshire-215b1e9622f994ab70d9e619f4b6d1ac.

[37] See id.