As of Thursday morning, the outcome of the Arizona Medical Marijuana Act remains too close to call. The no votes on Proposition 203 outnumbered the yes votes at one point late this morning by a slim 6,700-vote margin, with three precinct results incomplete and an unknown number of early voting ballots not yet counted.
One of the areas where precinct results were incomplete was Pima County, home to Tucson, one of the state’s more liberal areas, where incomplete results showed about 57 percent yes votes for Proposition 203. Early voting ballots received too close to Election Day likely will decide the race, and they may not be counted for several days.
Preelection polling data showed strong support for Proposition 203, with 54 percent of both Arizona registered voters and likely voters supporting it, according to the Rocky Mountain Poll, a Behavior Research Center poll, conducted between October 1-10, based on 555 interviews with registered voters, which included 405 likely voters. The medical marijuana measure was the only proposition that made it on the ballot in Arizona this year through the citizen initiative process.
The Arizona Medical Marijuana Act would permit qualified individuals and their registered caregivers to possess, use, transport, and, in certain circumstances, cultivate marijuana for medical use. Qualification includes certification by a physician that the medical use of marijuana is likely to provide a therapeutic or palliative benefit to a patient suffering from a debilitating medical condition, such as cancer, AIDS, Hepatitis C, Crohn’s disease, Alzheimer’s, epilepsy, or those causing severe and chronic pain, severe nausea, wasting, or muscle spasms.
The law would put the Arizona Department of Health Services (DHS) in charge of setting up and administering a Web-based verification system, a permitting process for up to 124 nonprofit dispensaries, and photo ID cards for qualified patients, their designated caregivers, and authorized agents of dispensaries. A favorable outcome of the final vote counting would start a 120-day countdown clock for DHS to issue implementing regulations or else all complete applications for qualified patient status would be deemed valid.
The Act would have a significant impact on Arizona employers. Qualified patients, caregivers, and dispensary agents would become a protected category under an express prohibition of discrimination against them based on their status as medical marijuana ID cardholders. An employer would be prohibited from refusing to hire, firing, or otherwise taking an adverse action against an ID cardholder unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.
Any drug-testing policies would need to be revised since the discrimination prohibition extends to qualified patients who test positive for metabolites or components, unless the employer can prove the employee possessed, used, or was impaired by marijuana on the premises or during work hours.
Arizona voters have considered three previous marijuana-related ballot issues. The only ballot proposal to succeed previously was the earliest one, when voters in 1996 approved use of marijuana for medical purposes. State lawmakers quickly gutted the law after federal authorities threatened to revoke the licenses of doctors who prescribed marijuana.
In 1998, Arizona voters rejected an antimedical marijuana ballot measure that would have required Congress or the federal government to authorize the use of medical marijuana before Arizona doctors could prescribe it.
In 2002, Arizona voters rejected an effort to legalize possession of small amounts of marijuana and make it available for free to patients who have cancer and other diseases.
The key sponsor of the Arizona proposition was the Marijuana Policy Project, a Washington, D.C.-based lobbying group.
Dinita L. James is the editor of Arizona Employment Law Letter and a partner with Ford & Harrison LLP in Phoenix. She can be reached at (602) 627-3520.