With every single one of Virginia’s 140 legislative seats up for election next month, the vote could recast conversations around a number of hot-button issues—including marijuana. When the dust settles, lawmakers and advocates say, who controls the House of Delegates and Senate will dictate the future of cannabis policy in the commonwealth—at least for the next few years.
“The fate of cannabis policy in Virginia will absolutely be determined by the outcome of this November’s election,” JM Pedini, executive director of Virginia NORML, told Marijuana Moment. “Marijuana is on the ballot in 2023.”
While Virginia legalized use, possession and limited personal cultivation of marijuana by adults in 2021, commercial sales are still illegal and unregulated. The Republican majority in the House has stood in the way of legislation to allow retail sales, most recently voting down a bill passed in February by the Democratic-controlled Senate from Sen. Adam Ebbin (D).
“We’re not going to make progress on cannabis without a Democratic majority in the Virginia General Assembly,” Ebbin said in an interview last week. “Republicans in the House have repeatedly stymied our efforts to move forward on regulation and sales of a tested, legal product.”
Broadly speaking, Democrats in the legislature want to legalize sales, while elected Republicans would prefer to crack down on the crush of illicit cannabis retailers and delivery services that have opened their doors in recent years.
But currently, the legislature is split, with Democrats holding a slim majority of Senate seats and Republicans narrowly in control of the House. The situation makes it hard for either party to pass sweeping reform.
“Today we have a divided legislature, with Democrats controlling one chamber and Republicans controlling he other,” Pedini said. “If that remains the case after November, we can expect more of the same: little to no momentum on cannabis legislation.”
If either party captures both chambers, on the other hand, there’s a chance for a more meaningful shift—either in favor of legalization or against it.
The best chance for getting a legal sales bill across the finish line, said Pedini, would be full Democratic control of both the House and Senate. That could allow lawmakers to send legislation to Gov. Glenn Youngkin (R), who was elected in 2021 and is slated to serve through the end of 2025.
“If Democrats were to take the majority in both chambers,” Pedini said, “then they could advance a pragmatic adult-use retail bill to Gov. Youngkin’s desk that would be palatable enough for him to allow to take effect.”
Youngkin, for his part, has been wary of allowing legal sales, and in June a member of his administration said the governor “has stated that he is not interested in any further moves towards legalization of adult recreational use marijuana.” But advocates are hopeful that broad support for marijuana legalization from Virginia voters would dissuade the governor vetoing any legislative-passed reform bill or sending it back to lawmakers with recommendations for major amendments.
Asked what sort of legislation they thought would be “pragmatic” enough to get through Youngkin, Pedini, who also serves as national NORML’s development director, pointed to a bill from the 2022 legislative session that would have allowed current licensed medical marijuana dispensaries to expand sales to adults 21 and older. Under that proposal, producers would have had to pay a $1 million fee, and products would have been subject to a 21 percent excise tax.
Ebbin, for his part, said Youngkin “has been a challenge to deal with because he hasn’t been forthcoming with his views on what he’s willing to support.”
“I’m not sure what the governor will sign, since he’s been kind of cagey and not really supportive in his public statements,” the senator said. “But the only way we’re gonna move forward is with a Democratic majority.”
“Whether or not we can do something that would be acceptable to Youngkin, I don’t know,” he added, “but certainly we want to have our majority in place for the next governor.”
Throughout 2023, some have speculated that Youngkin might run for president, though he’s repeatedly said his sights are set on Virginia. In any event, governors in Virginia cannot serve consecutive terms, and voters would pick a new governor in 2025.
If next month’s vote falls the opposite direction, and Republicans capture both chambers, some legalization advocates worry the result could be a return to prohibition. With a GOP-controlled legislature and Youngkin in the governor’s chair, it’s possible Virginia could become the first state in the modern cannabis movement to undo legalization.
“What many voters might not realize is on the table for the commonwealth,” Pedini said, “is the frightening rollback which could occur under a Republican trifecta.”
It’s a worry Ebbin said he shares.
“That is a very valid concern,” he told Marijuana Moment. “We have a lot of big issues effectively on the ballot in November—they include the progress we’ve made on cannabis, a woman’s right to choose, LGBT rights and the environment—and Republicans have shown an appetite repeatedly to move backwards on these important issues.”
Representatives for Youngkin, House Speaker Todd Gilbert (R) and Senate Minority Leader Tommy Norment (R) did not respond to Marijuana Moment’s requests for comment on GOP plans for cannabis policy changes.
Chelsea Higgs Wise is the executive director for Marijuana Justice, a Black-led organization in Virginia that’s led the call to legalize marijuana with an emphasis on repairing harms caused by the drug war. While she agreed the coming election could have big implications for cannabis policy, she said it’s also possible that with new districts, new members and new committee makeups, the legislature might shy away from sweeping change.
“We’re going to have brand-new people,” Wise said. “Just the culture of brand-new legislators, they don’t like to do too much, and marijuana is historically a very large lift. And I will say that there is not a known champion in the Virginia legislature that is ready to carry that.”
She expects that Youngkin’s looming presence will chill efforts at legalization, even if Democrats control both chambers. “If we don’t have a champion, we don’t have a broad push from the public and the governor doesn’t want it, these new legislators are not going to come in with marijuana on their mind,” Wise said.
On the other hand, she doubts Republicans would try to outlaw personal use and possession. “Even with a Republican majority, I do not think that they’re going to put their effort into undoing that because of their newness and because they didn’t run on that,” she said.
Wise does think Republicans would be eager to put more resources into training police and cracking down on illegal pop-up shops, however. “They are absolutely coming for legalization in a way,” she said, “but I don’t believe it’ll be the simple possession or homegrow.”
Marijuana Justice wants to see a bill that contains comprehensive steps to undo drug-war harms, such as by automatically expunging past convictions for cannabis crimes and building social equity ownership into the legal market.
“We should not create corporate, profit and revenue benefits that do not include people having some relief from law enforcement, having some release from incarceration and having their record sealed,” Wise said. She pushed back against the suggestion that lawmakers should focus on a quick path to legal sales through current medical marijuana businesses, instead advocating for “legalizing it right.”
“We’re here for the long haul, not just for their short electoral appointments and their terms,” she continued. While consumers and some lawmakers might want to speed toward legal sales, she insisted that it’s essential lawmakers find a way to provide relief for individuals and rebuild communities that have been impacted most by prohibition.
“We have folks that are calling themselves Democrats saying that we’re not going to do the nuance to make sure those folks have some type of relief,” Wise said.
Ebbin, the senator who sponsored the legalization bill enacted in 2021, described himself as constrained by political realities.
“I think it’s imperative that we have diverse ownership,” he said when asked how supportive he would be of social equity measures, “but Republicans have shown hostility to equity measures in the past. I think it’s important to realize though, even the equity measures we have proposed won’t do as much good as the way the tax revenue is spent. We have planned for a community investment fund and money being spent on important purposes that will help disadvantaged people.”
Ebbin’s 2021 bill that was signed into law by then-Gov. Ralph Northam (D) did contain provisions for legalizing and regulating commercial cannabis sales, but they were subject to reenactment by the next legislature, and that did not happen when Republicans took control of the House and governor’s office.
The senator’s newer measure that was defeated by the House in February after passing the Senate would have allowed recreational cannabis sales to begin on January 1, 2024. Sales would have taken place through existing medical cannabis dispensaries as well as at new businesses run by people who live in “historically economically disadvantaged communities.” Those operators would have received training and support from current cannabis companies.
The bill also included provisions for the resentencing of people currently incarcerated for cannabis convictions. Marijuana products would have been subject to a 21 percent excise tax, and localities could have imposed an additional three percent tax. Revenue would have supported reinvestment programs for historically economically disadvantaged communities, education for at-risk youth and addiction prevention services.
Pedini’s group, Virginia NORML, is conducting a candidate survey and has published a voter guide for the November 7 election with the aim of informing the electorate about where incumbents and challengers stand on cannabis policy reform.
Meanwhile in Virginia, several hemp businesses were recently hit with five-figure fines as part of an effort by the state to crack down on hemp cannabinoid products.
Two companies and a private citizen have sued over the newly tightened rules for hemp products, which set the maximum amount of THC in hemp products at 0.3 percent concentration and 2 milligrams per package. The threshold made illegal hundreds of products already on store shelves.
Earlier this year the GOP-controlled House also killed a proposal that would have let medical cannabis businesses made certain state-level tax deductions. That vote came days after Republicans scuttled the measure to start adult-use marijuana sales as well as legislation to create a psilocybin advisory board and reschedule the psychedelic.
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