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Legal weed in Delaware? Pressure is on following New Jersey passage

Sarah Gamard
Delaware News Journal

Supporters of legal weed hope that New Jersey voters' overwhelming approval to legalize marijuana will be the final push needed for Delaware lawmakers to do the same, especially if residents end up driving across the bridge and funneling tax revenue to the state next door.

The Democrat-controlled General Assembly has for several years been on the cusp of legalizing marijuana for adult use, with only a few extra lawmakers needed in order to pass a bill in Delaware.

Those extra votes could be there now, after several new Democrats occupy seats in the statehouse next year. Add in a dramatic, pandemic-prompted state revenue shortfall, and proponents are hopeful that 2021 will finally be the year.

Delaware lawmakers will likely debate a bill in 2021 to legalize marijuana after New Jersey approved its own measure in November.

"With New Jersey legalizing cannabis last week, we believe it puts even more pressure on Delaware lawmakers to also legalize cannabis here," said Zoe Patchell, lobbyist and director of the Delaware Cannabis Advocacy Network, last week. 

The bill sponsor, Rep. Ed Osienski, D-Newark, thinks he has enough support in the House to send it over to the Senate, where Democrats now outnumber Republicans two to one. The bill needs three-fifths of lawmakers' support, since it includes a tax.

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But lawmakers already can't seem to agree on the details, including how to spend the tax revenue. That could end up stalling the bill.

All the while, Delawareans could be going to New Jersey to buy marijuana (legally, it has to be consumed in New Jersey). Other Mid-Atlantic states are also considering their own law changes, which would only increase competition and drive revenue out of the First State.

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"Within a year, maybe a little longer, their (New Jersey’s) program will be up and running," Osienski said. "So my question to my colleagues is: How long do you want to send money over the bridge, tax money over the bridge to New Jersey? ... If we can start working on, agreeing on language, we can be neck and neck with them."

Osienski sponsored last session's bill, but it never made it out of the House. His 2021 bill won’t look exactly like the one he introduced in 2019, he said.

Rep. Ed Osienski, D-Newark (left), and Sen. Trey Paradee, D-Dover, fielded questions from reporters in 2019 about their bill that would have legalized recreational use of marijuana in Delaware. Lawmakers have to introduce a new bill for the session that starts in 2021.

Osienski disagrees with dedicating the revenue to a specific fund because it could end up being volatile either due to persistent illegal sales or neighboring states also legalizing marijuana and then taking revenue away from Delaware.

He argues that legalization would help eliminate sales to minors, regulate the product so it’s safer and "put a serious hurt, if not eliminate the black market and, at the same time, creating an industry of jobs that, right now, does not exist."

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"We’re trying to work out everybody’s concerns and issues to get something that a supermajority can agree on," he said. "I do feel confident that we should get this done this year.”

The legislation could also be fighting for lawmakers' attention next year against other issues, including a lawsuit settlement that forces the state to increase funding for certain disadvantaged students, that will likely take center stage.

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The pandemic, which forced lawmakers out of Legislative Hall, also ate up two months of the six-month legislative session that ended in June. Lawmakers are now meeting over Zoom and don't expect to lose any time to social distancing. But last year's truncated session has led to a backlog of agenda items such as a higher minimum wage and gun control that will likely be debated in 2021.

At the same time, new lawmakers are arriving with aggressive agendas to push the state forward on issues such as environmental protection and police accountability.

Marijuana is now legal in 15 states, thanks to voters in New Jersey, Arizona, Montana and South Dakota approving referendums on Nov. 3, according to the National Conference of State Legislatures.

New Jersey will tax sales and is hashing out the regulatory framework of how to sell it.

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Before this month, Delaware had long been in a race with New Jersey to legalize the plant, and the Garden State is now the only one in the Mid-Atlantic to allow adults to buy and use it. Pennsylvania and New York are considering following suit. The District of Columbia is the closest jurisdiction where it is legal.

Lawmakers work out of Legislative Hall in Dover during the 2020 session.

A 2018 poll from the University of Delaware Center for Political Communication found that 61% of Delawareans supported legal marijuana.

Unlike in New Jersey, voters in Delaware have to leave the decision to lawmakers instead of voting for it themselves. But Delawareans are also consistently electing more progressive, pro-legal marijuana Democrats into office.

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Gov. John Carney does not support legalization and it is not clear if he would veto a bill if it comes to his desk.

When asked for comment for this story, Carney's spokesman Jonathan Starkey pointed to Carney's support for medical use and decriminalization of the drug — both of which are law in Delaware.

Delaware Governor John Carney gives an update on the state's coronavirus response in Wilmington on Tuesday, Oct. 27, 2020 at the Carvel State Building.

"He held two town halls on marijuana legalization earlier in his administration and has a lot of concerns about it," Starkey said. "He also knows there are Delawareans who have a different view on this issue – including new legislators – and, as always, he’s willing to hear them out."

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Some of those new legislators will try to get Carney to come around during the next legislative session that starts in January. That includes Marie Pinkney, a progressive Democrat from New Castle who was elected to the Senate after ousting moderate Senate President Pro Tempore David McBride, D-Hawk's Nest, in the September primary.

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"There are some people who want marijuana legalized simply because people enjoy it and they want to have a good time and they want to do what they want to do with it," Pinkney said the day after she won the general election on Nov. 3.

Marie Pinkney, a progressive Democrat from New Castle, was elected to the Senate after ousting moderate Senate President Pro Tempore David McBride, D-Hawk's Nest, in the September primary.

"We can also talk about the fact that the marijuana industry will be a lucrative business, and when is there going to be a more important time to introduce lucrative businesses in our state than when we’re in the middle of a pandemic that has drastically impacted not just the state but the country?" she said. "We need the additional revenue.”

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Lawmakers in June were able to shore up a coronavirus-induced revenue shortfall — a $400 million drop between December and June — for this fiscal year by dipping into reserves and postponing one-time projects, but it's unclear how many more years the state will have to endure financial hardships.

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Supporters in 2018 said legalization in Delaware would raise more than $20 million in taxes and the 2019 estimate ranged from $9 million to $50 million.

Some states saw the benefit of legal marijuana revenues at the start of the pandemic, when coronavirus-induced anxiety spiked sales in states where it is legal. 

Delaware lawmakers will likely debate a bill in 2021 to legalize marijuana after New Jersey approved its own measure in November.

Sen. Dave Sokola, D-Newark, who supports legal weed and is taking over as the highest-ranking senator who will control if and when bills get voted on, expects that though lawmakers could have a hard time agreeing on the details, he thinks they will end up with "some version that would have a reasonably good chance to get through."

Sen. David Sokola, D-Newark, sits on the Delaware Senate floor on Jan. 15, 2020.

"I don’t think we should spend a nickel on enforcement," Sokola said. "It just seems to me that there’s no lethal dose. There is for alcohol, alcohol’s legal. There’s a whole lot of potential upside and not a heck of a lot of downside."

Sarah Gamard covers government and politics for Delaware Online/The News Journal. You can reach her at (302) 324-2281 or sgamard@delawareonline.com. You can also follow her on Twitter @SarahGamard.