Washington's Republican and Democratic candidates for attorney general have pledged to defend it in federal court if it passes and is challenged, although both oppose the measure. Both men think a federal challenge is likely.
"If it does pass, and it looks like it may pass in this state, we will be exactly contrary to federal criminal law," said Reagan Dunn, the Republican candidate, at their September debate. Dunn was referring to the Controlled Substances Act, enacted under President Nixon in 1970. "Depending on who is the U.S. attorney, depending on who is the attorney general of the United States, we are very likely as a state to be sued and challenged in federal court on this issue." Dunn then touted his experience trying cases in federal court.
"If the voters approve the initiative, obviously my job is to defend that state law," said Bob Ferguson, the Democratic candidate. "It won't be easy. Anyone who says it will be easy is kidding themselves."
If I-502 passes, possession will become legal 30 days after Election Day, but regulated commercial sale would not begin until Dec. 6, 2013, after a year-long rule-making process granted to the state's health department. During that time, supporters hope to negotiate with the federal government and avoid a challenge.
"Over the course of that year, we're hoping that will provide a good opportunity to have good conversations with the federal government and avoid litigation and hopefully have the federal government take the same stance it's taken with medical marijuana," said Alison Holcomb, the campaign director of New Approach Washington, who describes herself as being "on loan" from the state ACLU to run the marijuana campaign.
Nowhere in the Constitution are states required to reiterate federal law with their own possession bans, and state and local police are not required to enforce federal laws like the Controlled Substance Act, meaning that if a state legalized marijuana possession, it could be up to federal law enforcement to arrest and prosecute recreational marijuana users. But state efforts to regulate marijuana sales could be viewed--including by the attorney-general candidates--as an affront to Congress's Commerce-Clause interest in banning marijuana, which the Supreme Court upheld in the case Raich v. Gonzalez, a prominent case involving state and federal conflict over medical marijuana in California.
Medical marijuana doesn't offer a clear picture of how the federal government would respond to I-502 passing, either. A total of 17 states, including Washington, plus the District of Columbia have legalized medical marijuana, and the Obama administration's approach to those state laws has drawn criticism from marijuana advocates. A 2009 Justice Department memo urged U.S. attorneys to avoid prosecuting medical-marijuana patients who follow state law; a later memo advocated prosecution of medical pot shops.
Regardless of whether Washington's initiative passes, marijuana legalizers have said they will continue to push state initiatives. After major state/federal issues have arisen in court over Arizona's immigration law and funding provisions in Obama's health-reform law, advocates are pushing marijuana to become the next major states' rights legal conflict.
"Only through a process of states challenging federal marijuana policy and demanding that they be allowed to regulate marijuana in a way that's socially responsible for local communities are we also going to see a change in federal policy," Drug Policy Alliance Executive Director Ethan Nadelmann told ABC News.
Since the candidates won't say how they'd handle such a scenario, Washington, Oregon and Colorado--where similar initatives will also appear on the ballot Tuesday--will have to wait and see if the issue is forced.
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