Marijuana Legalization Referendum Faces Critical Test on Tuesday

The backers of a proposed ballot referendum to legalize marijuana for DC residents are bracing for a fight tomorrow, when their initiative will be reviewed by the District’s Board of Elections.

The DC Council is poised to give its final approval next week to a bill decriminalizing marijuana use, some of DC’s pro-pot activists are hoping to get a question on November’s ballot making it legal to possess up to two ounces of weed and up to three marijuana plants in their homes.

But the initiative was challenged last week by Attorney General Irv Nathan, who argues that legalization would violate a federal law that prohibits the District from offering public housing to individuals charged with marijuana offenses.

“Initially I thought we could amend the language to satisfy the attorney general,” says Adam Eidinger, one of the legalization initiative’s authors. But Eidinger decided against a rewrite after a lawyer advising him and his fellow activists said Nathan has it wrong.

“Under the Proposed Initiative, the District would be free to use the lease required by federal law and evict tenants who violate the terms of the lease, as well as regulate conduct made lawful by the Initiative on property that it owns,” the lawyer, Joseph Sandler, writes in a letter to the Board of Elections. “The Attorney General’s conclusion to the contrary is clearly erroneous and should be rejected by the Board.”

Although Sandler is poking at Nathan’s argument, Eidinger is still worried his referendum will get rejected tomorrow. He says he will sue the Board of Elections if that happens, but even without a protracted legal process, his window to actually get the legalization question before voters is rather tight. Initiatives need to collect more than 23,000 valid signatures, including at least five percent of voters in each of the city’s eight wards, to get on the ballot. Eidinger says he wants to finish collecting names at least a month before the July 7 deadline.

Eidinger and Nathan also have a bit of a personal history. “Irv Nathan is behind closing down my business,” says Eidinger, who operated two Capitol Hemp shops until September 2012 when they were shut down under city laws against selling marijuana paraphernalia. “This gentleman has been targeting me for a number of years.”

Eidinger also feels that if decriminalization is going to become DC law, legalization—which is supported by 63 percent of city residents, according to a poll in January—deserves a shake, too.

“If decriminalization is OK, then my initiative has to be OK,” he says. “It’s not consistent.”

Of course, even if Eidinger’s referendum survives Nathan’s challenge and is approved by voters, it could very well be held up by Congress, much like the 1998 initiative in which voters approved medial marijuana, but had to wait 15 years until it became a reality. The decriminalization bill, which would make marijuana possession punishable by a $25 fine instead of an arrest and jail time, is also subject to congresssional review, though officials are less pessimistic about its chances of surviving Capitol Hill.

“We have to be mindful that Congress can step in at any point,” Council Chairman Phil Mendelson said in January when asked why he prefers decriminalization over full-scale legalization.

Benjamin Freed

Staff Writer

Benjamin Freed joined Washingtonian in August 2013 and covers politics, business, and media. He was previously the editor of DCist and has also written for Washington City Paper, the New York Times, the New Republic, Slate, and BuzzFeed. He lives in Adams Morgan.