With veto, path to marijuana legalization in Delaware still open but fraught with unpredictability

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A closeup of a marijuana plant

File photo: A marijuana plant grows at the Compassionate Care Foundation's grow house in Egg Harbor Township, N.J. (Julio Cortez/AP)

To override or not to override.

That’s the question facing Delaware lawmakers in the wake of Gov. John Carney’s veto of a bill that would effectively legalize recreational marijuana.

The governor dropped his veto bomb Tuesday morning, leaving advocates wondering if what once appeared to be a veto-proof majority that approved legalization would hold.

State Sen. Laura Sturgeon, a co-sponsor, says she’s confident her chamber will maintain its yes votes, but worries about the House.

She echoed the fears of other advocates that the three Republicans who broke with their own party to support it would change their minds, or that Democratic supporters might buckle under pressure from the governor, who is the unofficial leader of their statewide party.

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“I don’t know if they have the votes in the House,’’ Sturgeon said. “It’s a bigger hurdle now… There’s a lot of steps that have to happen now, and the veto definitely complicates matters even more. I’m just hoping that the House is not deterred and that they move forward following the will of the majority of Delawareans.”

Sen. Laura Sturgeon says her chamber should firm on a veto override. (Emma Lee/WHYY)

The so-called legalization bill removes the current civil fine of $100 for possession of less than an ounce of weed for adults age 21 and above.

Compounding the uncertainty caused by the veto is the fact that a companion bill to that measure — one that would create a regulated growing and retail market with a 15% tax on sales — failed last week in the House because one co-sponsor was sick.

But with both pieces of the legislation, Carney’s veto means the next moves are up to the chief sponsor, Rep. Ed Osienski.

When the General Assembly, now in recess, reconvenes on June 7, Osienski must decide whether to seek to override Carney’s veto, and whether to bring the tax-and-regulate bill up for reconsideration.

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Osienski, a Newark Democrat, isn’t tipping his hand at this point. He did not return calls from WHYY News, but issued a statement saying Carney “has chosen to ignore the will of residents.”

University of Delaware polls in 2016 and 2018 showed that 61% of residents support legal weed.

Osienski stressed that the governor could have maintained his opposition while allowing the bill to become law without his signature.

The legalization bill was approved in both chambers with the three-fifths majority required to override a veto. It received 26 votes in the House, where 25 votes can override. It got 13 votes in the Senate, the exact amount needed to override.

“I will review what options are available and decide on any next steps at a later time,’’ Osienski’s statement said.

Zoë Patchell, executive director of the Delaware Cannabis Advocacy Network, called Carney’s action “an affront to democracy” and said she believes Osienski will try to counter it.

“I think that he’s definitely pushing for an override and hoping that his caucus and all the members that have already voted for [legalization] will hold strong against this tyrannical veto,’’ she said.

Zoë Patchell of the Delaware Cannibas Advocacy Network hopes House members who voted for legalization stand firm. (Courtesy of Zoë Patchell)

Patchell said a victory would make Delaware the 20th state plus Washington, D.C., to legalize recreational adult use of marijuana.

She called Osienski “a true champion for cannabis legalization. And I know he’s doing everything in his power to convince his colleagues that we need to pass it this year and not wait another year while we have thousands of individuals who will end up with a cannabis possession offense between now and then.”

Asked if she was optimistic, Patchell responded, “We’re working on it. We’re doing everything we can.”

‘They’re going to have to put their vote on the line’

Osienski had split up the legalization and regulatory pieces of a comprehensive bill that failed in March. Various versions of that proposal have been introduced in the House in past years but never had enough support for the three-fifths majority required for a bill with a tax.

His decision heartened supporters because it meant that the legalization bill only required a simple majority.

That was a virtual certainty in the Democrat-controlled House and Senate. The bill had 21 sponsors in the House alone – the amount needed for approval. In the Senate, six Democrats are sponsors in a chamber the party controls 14-7.

Osienski reasoned that once legalization was approved, those who opposed legalization, such as House Speaker and former state trooper Pete Schwartzkopf, would approve the regulatory structure. That way the state could treat marijuana like alcohol and reap tax benefits estimated in the tens of millions of dollars a year.

So when the legalization bill received the three-fifths majority in both chambers, leading Patchell and other advocates to rejoice that one major hurdle — removing all penalties for simple possession — had been cleared.

“We finally took one step forward toward restoring the rights and freedoms for otherwise law-abiding adults who possess cannabis,’’ Patchell said after the May 5 House vote. She was particularly buoyed by the fact that three Republicans split with the party to vote yes and join the Democratic majority.

But with Carney’s veto, the path forward is fraught with unpredictability.

Should he decide to push forward and attempt to override Carney, Osienski would need to hold at least 25 of the 26 yes votes, including Republicans Mike Ramone, Mike Smith and Jeff Spiegelman. None had supported the legalize-and-regulate bill in March.

Sturgeon said supporters will be under pressure from their parties to switch their vote, especially her fellow Democrats in the House.

“Are any of the people who originally voted yes going to be influenced by the fact that the governor is so strongly in opposition to legalization, that they would not vote yes if it’s an override to the governor?’ she asked.

“For some people that might make a difference. Now that they’re going to have to put their vote on the line to override the governor’s veto, are they still going to be a bold yes?”

The bottom line, she said, is that it’s “very difficult to make a prediction.”

Sen. Trey Paradee, the prime sponsor in his chamber, did not respond to a request for an interview with WHYY News. But Paradee issued a statement with Senate President Pro Tem Dave Sokola that did not mince words.

“The members of the Delaware General Assembly have been fighting for years to end the failed war on marijuana,’’ their statement said, “and we will not be stopped by this latest setback.”

Tax-and-regulate bill dependent on override of legalization veto

The issue of the tax-and-regulate measure is another matter.

The bill had enough support to clear the three-fifths majority of 25 votes, but then there was a medical snag. Co-sponsor Larry Mitchell, an Elsmere Democrat, was ill and did not join the meeting virtually.

Despite Mitchell’s absence well into the legislative day, Osienski decided to call for a vote and it only received 24 votes. None of the three Republicans who voted for legalization voted yes, but Schwartzkopf did.

But with the bill about to be defeated, Schwarzkopf prompted Osienski to change his vote to no. That’s a procedural move that allows Osienski to bring it up for a vote again before the General Assembly adjourns on June 30. Only a lawmaker whose vote is a “no” can bring up a bill that fails for reconsideration.

Mitchell, who voted for the legalization measure, has not returned repeated calls from WHYY News.

Meanwhile, Osienski has three legislative days from the date of that vote — in this case June 9, because of the recess — to call for a majority vote to resurrect the bill for reconsideration. If that would prove successful, he could immediately call for a new vote on the bill, or do so anytime through June 30, the final day of the legislative session.

Such a move might need to wait until the General Assembly decides whether to override the veto, however, one source told WHYY News.

That’s because the state can’t tax and regulate a product that is still illegal, so there’s no sense in setting up a regulatory structure if the veto isn’t overridden.

While Patchell wants the regulation piece approved, she said legalization without the creation of a growing and retail market would still benefit marijuana users.

“Every week that passes without repealing the penalties for simple possession, we have another over 100 individuals that have a simple cannabis possession offense,’’ she said.

“It puts otherwise law-abiding citizens into unnecessary law enforcement interactions with intrusive searches and all kinds of other collateral consequences that come with those stops. And it’s diverting police manpower and resources away from real crime that has actual victims to deal with a matter that has nothing to do with public safety.”

Patchell and Osienski also said people are still going to consume marijuana whether the law is changed or not.

Osienski pointed out that legal sales in New Jersey approached $2 million on April 21, the first day of retail sales. In the first month of business, legal marijuana sales in NJ totalled $24 million.

“Until we establish a similar market in Delaware,” Osienski said, “people will continue to obtain marijuana illegally here through the illicit market or send tax revenue across the Delaware Memorial Bridge to New Jersey.”

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