So could the current casino operators lose their monopoly thanks to Issue 2 passing?

 

No, it is not retroactive.

It's like to be used in the next marijuana initiative, because unless the next initiative framers are willing to simply trust the state government not to tax it into oblivion, they're going to probably have to specify a tax rate (otherwise the Ohio legislature could simply impose a $1000-per-plant excise tax on its production in this state).  Maybe they'll consider that an acceptable risk set against the need to run the Issue 2 gauntlet, but in the meantime, anything that the citizens of the state legalize by referendum, the legislature can effectively ban by taxation unless they run the Issue 2 gauntlet.  The power to tax is the power to destroy.

It's like to be used in the next marijuana initiative, because unless the next initiative framers are willing to simply trust the state government not to tax it into oblivion, they're going to probably have to specify a tax rate (otherwise the Ohio legislature could simply impose a $1000-per-plant excise tax on its production in this state).  Maybe they'll consider that an acceptable risk set against the need to run the Issue 2 gauntlet, but in the meantime, anything that the citizens of the state legalize by referendum, the legislature can effectively ban by taxation unless they run the Issue 2 gauntlet.  The power to tax is the power to destroy.

 

I'd actually like to see at least a 60% majority needed to amend the state Constitution.  What's the point of having one if it is so easily changed?

Couldn't a new amendment simply state, "The Ohio State Legislature, the states various boards, commissions, etc shall not impose an unreasonable tax or restriction on the growth, sale, use, or distribution of marijuana plants or products"?

 

That's not specifying a tax rate.

 

Obviously any restriction the state places that greatly exceeds tobacco, alcohol, etc. would be challenged in court and it would be found unconstitutional.

It's like to be used in the next marijuana initiative, because unless the next initiative framers are willing to simply trust the state government not to tax it into oblivion, they're going to probably have to specify a tax rate (otherwise the Ohio legislature could simply impose a $1000-per-plant excise tax on its production in this state).  Maybe they'll consider that an acceptable risk set against the need to run the Issue 2 gauntlet, but in the meantime, anything that the citizens of the state legalize by referendum, the legislature can effectively ban by taxation unless they run the Issue 2 gauntlet.  The power to tax is the power to destroy.

 

I'd actually like to see at least a 60% majority needed to amend the state Constitution.  What's the point of having one if it is so easily changed?

 

The point is to have it be unchangeable by the legislature itself.  That said, I'm not completely against having some kind of supermajority requirement, but constitutional amendments are still more than just regular laws even with only >50% required for passage, because of the fact that the legislature can't touch constitutional provisions in big, logrolled backroom compromises.

Couldn't a new amendment simply state, "The Ohio State Legislature, the states various boards, commissions, etc shall not impose an unreasonable tax or restriction on the growth, sale, use, or distribution of marijuana plants or products"?

 

That's not specifying a tax rate.

 

Obviously any restriction the state places that greatly exceeds tobacco, alcohol, etc. would be challenged in court and it would be found unconstitutional.

 

That might be a workable strategy, but you're leaving a lot in the hands of the judiciary there.  And the judiciary is generally tentative when it comes to taxes, at least outside of realms that are also inherently judicial, such as jurisdiction.  But maybe that could thread the Issue 2 needle and avoid the need for two simultaneous votes.

It's like to be used in the next marijuana initiative, because unless the next initiative framers are willing to simply trust the state government not to tax it into oblivion, they're going to probably have to specify a tax rate (otherwise the Ohio legislature could simply impose a $1000-per-plant excise tax on its production in this state).  Maybe they'll consider that an acceptable risk set against the need to run the Issue 2 gauntlet, but in the meantime, anything that the citizens of the state legalize by referendum, the legislature can effectively ban by taxation unless they run the Issue 2 gauntlet.  The power to tax is the power to destroy.

 

Are there any substantive limits to taxation in this type of case?  i.e. arbitrarily high rates that fail a rational basis test.  Also, is there a distinction to be made between legitimate taxes and penalties? (With the latter being unconstitutional)

 

I know those concepts exist in federal constitutional law but I'm curious if you know how they translate to the state context.

Unlike congress, a state legislature is basically The Crown.  Civil rights abuses are subject to rational basis or other tests.  Interfering with interstate commerce is also a no-no, but that doesn't apply to what we're talking about, as it would remain federally illegal.

The "substantive limit" is to start paying more attention to state legislative races and throw the bums out.

Couldn't a new amendment simply state, "The Ohio State Legislature, the states various boards, commissions, etc shall not impose an unreasonable tax or restriction on the growth, sale, use, or distribution of marijuana plants or products"?

 

That's not specifying a tax rate.

 

Obviously any restriction the state places that greatly exceeds tobacco, alcohol, etc. would be challenged in court and it would be found unconstitutional.

 

That might be a workable strategy, but you're leaving a lot in the hands of the judiciary there.  And the judiciary is generally tentative when it comes to taxes, at least outside of realms that are also inherently judicial, such as jurisdiction.  But maybe that could thread the Issue 2 needle and avoid the need for two simultaneous votes.

 

Why not just say that the taxes on marijuana can not exceed the tax rates placed on alcohol or tobacco, whichever is greater? So they would still have the power to set the tax rate for each of these "vices" but could not target marijuana specifically.

Couldn't a new amendment simply state, "The Ohio State Legislature, the states various boards, commissions, etc shall not impose an unreasonable tax or restriction on the growth, sale, use, or distribution of marijuana plants or products"?

 

That's not specifying a tax rate.

 

Obviously any restriction the state places that greatly exceeds tobacco, alcohol, etc. would be challenged in court and it would be found unconstitutional.

 

That might be a workable strategy, but you're leaving a lot in the hands of the judiciary there.  And the judiciary is generally tentative when it comes to taxes, at least outside of realms that are also inherently judicial, such as jurisdiction.  But maybe that could thread the Issue 2 needle and avoid the need for two simultaneous votes.

 

There's also the court of public opinion though. If we pass marijuana legalization and they try to ban it through unreasonable tax rates, a lot of noise would be made.

Couldn't a new amendment simply state, "The Ohio State Legislature, the states various boards, commissions, etc shall not impose an unreasonable tax or restriction on the growth, sale, use, or distribution of marijuana plants or products"?

 

That's not specifying a tax rate.

 

Obviously any restriction the state places that greatly exceeds tobacco, alcohol, etc. would be challenged in court and it would be found unconstitutional.

 

That might be a workable strategy, but you're leaving a lot in the hands of the judiciary there.  And the judiciary is generally tentative when it comes to taxes, at least outside of realms that are also inherently judicial, such as jurisdiction.  But maybe that could thread the Issue 2 needle and avoid the need for two simultaneous votes.

 

Why not just say that the taxes on marijuana can not exceed the tax rates placed on alcohol or tobacco, whichever is greater? So they would still have the power to set the tax rate for each of these "vices" but could not target marijuana specifically.

 

That would still likely have to run the Issue 2 gauntlet.  I can almost guarantee that a prohibition on specifying a tax rate will include a prohibition on pegging it to, or capping it at, rates imposed on other goods, persons, or activities.  I know that the initiative language bars future initiatives from "specifying" or "determining" a tax rate and you could argue that the "no less favorable than alcohol or tobacco" language doesn't directly specify or determine it--but the ability to determine what something shall not be, if not limited, becomes the ability to determine what something shall be.  Maybe you could get a court to adopt some version of rational basis review that would still strike down an attempt to nullify or hinder a ballot initiative by forcing it through the Issue 2 gauntlet based on a cap instead of a direct specification.  But as soon as you get a judge to sign off on that rule, you either have to have case-by-case judicial review of every proposed ballot provision that would possibly reach Issue 2, or you allow the possibility that an initiative would simply "cap" the rate for a given tax at "no more than 0.1%."

I'm sure there will be a challenge pretty early on if the board decides something violates Issue 2. I'm fairly confident that the state won't abuse it. But we'll see. If they do, I think the courts will put them in their place.

 

The intent of the law also matters, and the intent of the law was to prohibit specific individuals or groups from getting benefits in the State Constitution that other similar groups are not allowed to get.

 

So this would prevent certain industries from getting a sweet tax rate or group of people from controlling an industry without competition. I think the language is pretty straight forward in intent, which is why I'm cautiously optimistic about this amendment.

Let's also make it clear that Issue 2 does NOT ban monopolies from being in the constitution. What it does would separate the amendment into two issues. So Issue 3 would've become: 1. Do you want legal marijuana? 2. Do you want #1 to be a monopoly.

^ And even that's only true for petition-backed amendments. For legislature-backed amendments, they could still be combined in one issue.

^ Also, you cannot for instance, vote yes on 1 and no on 2 hoping you can legalize without the monopoly. They both have to pass or neither are adopted.

And that is awkward.

Let's also make it clear that Issue 2 does NOT ban monopolies from being in the constitution. What it does would separate the amendment into two issues. So Issue 3 would've become: 1. Do you want legal marijuana? 2. Do you want #1 to be a monopoly.

 

Yes. Keep in mind you can't really ban anything from a constitution. The only things prohibited are those things prohibited by the US Constitution. What you can do is change the process of amending the constitution, which this amendment does.

I'm sure there will be a challenge pretty early on if the board decides something violates Issue 2. I'm fairly confident that the state won't abuse it. But we'll see. If they do, I think the courts will put them in their place.

 

The intent of the law also matters, and the intent of the law was to prohibit specific individuals or groups from getting benefits in the State Constitution that other similar groups are not allowed to get.

 

So this would prevent certain industries from getting a sweet tax rate or group of people from controlling an industry without competition. I think the language is pretty straight forward in intent, which is why I'm cautiously optimistic about this amendment.

 

Agreed. To be honest I bought into a lot of the fear mongering regarding this issue. "It undermines democracy etc etc."

 

I do think some caution and skepticism should be applied if you are talking about modifying the democratic process, but seriously, if you read this thing, it's not that bad. And the idea of being able to 'invest' in a ballot-granted monopoly *is* pretty bad.

 

Also note one of the sponsors of Issue 2 has been trying to get it passed since the casinos. It just only got steam when the social conservatives got scared of weed.

 

I'm sure there will be a challenge pretty early on if the board decides something violates Issue 2. I'm fairly confident that the state won't abuse it. But we'll see. If they do, I think the courts will put them in their place.

 

The intent of the law also matters, and the intent of the law was to prohibit specific individuals or groups from getting benefits in the State Constitution that other similar groups are not allowed to get.

 

So this would prevent certain industries from getting a sweet tax rate or group of people from controlling an industry without competition. I think the language is pretty straight forward in intent, which is why I'm cautiously optimistic about this amendment.

 

Agreed. To be honest I bought into a lot of the fear mongering regarding this issue. "It undermines democracy etc etc."

 

I do think some caution and skepticism should be applied if you are talking about modifying the democratic process, but seriously, if you read this thing, it's not that bad. And the idea of being able to 'invest' in a ballot-granted monopoly *is* pretty bad.

 

Also note one of the sponsors of this thing has been trying to get it passed since the casinos. It just only got steam when the social conservatives got scared of weed.

 

Ah... That answers my question on why there wasn't just a clean legalization issue to compete with issue 3.

 

If you had two issues on the ballot, one that was riddled with problems (Issue 3), and one that was a relatively clean legalization bill, I think the clean legalization bill would pass pretty easily. People like thinking they are settling for the middle ground.