Under a proposed ballot initiative, D.C. residents would be allowed to possess up to two ounces of marijuana and grow three plants in their homes.
A proposed ballot initiative that would legalize the possession of small amounts of marijuana would violate federal law and should therefore be kept off of the November ballot, according to D.C. Attorney General Irv Nathan.
A portion of the ballot initiative that would prohibit D.C. from limiting or refusing access to public housing based on marijuana use or possession would run counter to a federal law, wrote Nathan in a letter to the D.C. Board of Elections on Wednesday.
"The Initiative is improper because its prohibition on denying any benefit based on conduct that it purports to make lawful is incompatible with at least one area of federal law involving District-provided benefits: federal public housing law," he writes.
The initiative would legalize the possession of up to two ounces of marijuana and the cultivation of up to three plants within a home. It would also allow residents to give away one ounce of marijuana, and prohibit the city from denying public services to those found with marijuana.
But before it can make it to the November ballot, it has to be approved by the board and proponents have to gather 23,000 signatures from D.C. residents. With Nathan's opposition, it might not even get to the signature-gathering part of the process.
Marijuana is illegal under federal law, and for Nathan, the conflict between what the initiative calls for and what federal law requires makes it inappropriate as a ballot measure. It also highlights the ongoing discrepancies between federal and local laws regarding marijuana, especially as more states move to decriminalize or legalize it.
In 2011, the U.S. Department of Housing and Urban Development advised states that legalized medical marijuana — as D.C. did in 1998 — that they could deny new applicants to federally funded housing projects and voucher programs. At the same time, though, the department said it was up to individual states to determine whether existing public housing tenants could be evicted due to their use of medical marijuana.
More recently, though, the U.S. Department of Justice has said that it is not prioritizing enforcing federal marijuana laws in states where it has been legalized.
"The federal government has said it will defer to states on marijuana so long as certain enforcement priorities aren’t implicated, and evicting marijuana consumers from federal housing is not part its enforcement strategy. It’s unfortunate to see D.C.'s own attorney general using federal law to undermine the will of D.C. residents, the vast majority of whom want marijuana regulated like alcohol," says Dan Riffle, the director of federal policies at the Marijuana Policy Project.
But Adam Eidinger, the drafter and main proponent of the initiative, doesn't want to take any chances with the D.C. Board of Elections, and he's hoping to make changes to the initiative before he tries to get it by the board on Tuesday.
"I don't want to give the board a reason to vote against this," he says. "I don't want to wait. I want to be collecting signatures on April 1 [the D.C. primary]."
If the board agrees with Nathan and votes against Eidinger, he'd have to re-submit the language in full, a process that would put the time-consuming signature-gathering process on hold.
The D.C. Council has given preliminary approval to a bill that would decriminalize the possession of small amounts of marijuana, and is likely to give the final approval in March. Mayor Vincent Gray has said he will sign the bill.
2014 Marijuana Legalization Initiative--Legal Analysis 2-19-14 (1)