Holly Ramer/AP Photo
Even if New Hampshire moves ahead, it’s unlikely to be an indication of how other Republican states might act on marijuana legalization.
New Hampshire is surrounded. Since the Granite State is the only jurisdiction in New England where recreational marijuana is illegal, residents have to take a road trip to Vermont, Maine, or, God forbid, Massachusetts to buy cannabis for personal consumption. Back home, possession of three quarters of an ounce or less nets fines ranging from $100 to $1,200. Expungement is also on the table for simple possession offenses committed before decriminalization in 2017.
Easing up on penalties for marijuana possession has not produced a solid shift in state lawmakers’ attitudes toward the drug in this Republican trifecta state. New Hampshire has no income or sales tax and some of the highest real estate taxes in the country, and raking in cannabis revenues is one of the motivators for reformers who’d like to keep those dollars at home.
Potential revenues make little difference to state lawmakers fearful that legalization would transform New Hampshire into some dark, lawless place. Legalization is at the crux of the regional culture wars that equate marijuana usage with the “excesses” of its southern neighbor. “We want to make sure we don’t become Massachusetts,” one state senator has opined, with “billboards on every street corner, marijuana shops in every street corner—and make it really easily accessible to children.”
But reformers kept hope alive that New Hampshire would finally legalize recreational marijuana in 2024. The state is no stranger to cannabis regulation: Medical marijuana has been legal for more than a decade. In keeping with this trend, the New Hampshire House of Representatives passed a legalization bill earlier this year, yet the situation is vastly different in the state Senate. Now, the Senate has since passed a legalization bill—but one with so many points of divergence from the House measure that it appears to have been designed with rejection in mind. It may be a Pyrrhic victory for legalization advocates.
Still, if the two houses can reconcile the differences between the House and Senate bills, New Hampshire could become first state in the country to devise a state-run cannabis system.
But that’s a big “if.”
That state of affairs has come about largely because Republican Gov. Chris Sununu pulled a fast one. Last year, as a state commission wound down its work to devise a framework for recreational cannabis sales, the governor announced that he would veto any legislation that did not include placing the new system under the control of the New Hampshire Liquor Commission that runs its state-run alcohol outlets. The bill would set a statewide limit of 15 franchises and a ban on lobbying and political contributions by license holders.
According to a January Marijuana Moment report, the governor told a state marijuana lobbyist that “every other governor will tell you that their system sucks.” He added, “We want to make it available, but controlled. That’s it. That’s what people want.”
So flummoxed were commission members by the eleventh-hour development that the report they sent to the state legislature did not include any specific recommendations.
Ultimately, the House stuck to a bill that would establish a retail-licensing system, a four-ounce limit for possession, and other substantive changes from the governor’s plan. The Senate version backed up Sununu’s franchise model and encumbered their bill with must-haves like a two-ounce possession limit and added new elements, such as criminalizing consumption of cannabis by drivers and passengers in vehicles, that appeared designed to sink the entire legalization enterprise.
The state-run enterprise plan posed the biggest problem, as no one could answer how might the federal government or the courts respond. What kind of legal jeopardy might New Hampshire open itself up to with a franchise system as long as cannabis is illegal at the federal level?
The possible rescheduling of marijuana from Schedule I to a less restrictive but still problematic Schedule III by the Drug Enforcement Administration does not necessarily help the state navigate this territory, says Paul Armentano, deputy director of NORML, the marijuana legalization advocacy group. Marijuana would still be regulated either way.
“For a state like New Hampshire that is contemplating a unique system for dispensing marijuana to those over 21, reclassification would not provide any sort of clarity,” Armentano says, “because it would not address the existing conflict between what states are doing when it comes to marijuana and how the federal government mandates that under federal law.”
By way of example, New Mexico, which has state-run alcohol outlets, had considered a similar structure for its marijuana outlets, but lawmakers ultimately abandoned the idea before legalization two years ago, because there were too many unanswered questions about possible legal challenges, banking, product choice, and training state employees.
The New Hampshire House is in a no-win situation. Its bipartisan coalition of legalization supporters understands the possible problems with a state-run system. They could possibly move forward with a more restrictive bill than they would like, and attempt to seek legislative fixes afterward. They also understand that if they don’t, and if a Republican takes the governor’s seat in November, legalization may be completely off the table.
The Senate, meanwhile, wants what it wants. “The Senate largely said, ‘We’re going to amend the House’s version in a model that is consistent with what the governor is asking,’” says Armentano. “In addition, you then had some members in the Senate in leadership who don’t want legalization, period, and have made that publicly clear.”
The House votes on Thursday whether to kill the Senate measure or send it to a “committee of conference” on Thursday.
Even if New Hampshire moves ahead, it’s unlikely to be an indication of how other Republican states might act on marijuana legalization. Armentano notes that Republican states like Montana, where voters passed a ballot initiative to legalize marijuana, are not held up as exemplars of marijuana policies—because the Republican Party, for the most part, opposes legalization. “You never hear any Republicans talking about ‘Montana was able to do this,’ he says. ‘Montana hasn’t fallen into lawlessness, maybe this is something I would reconsider’—I’ve never heard that discussion.”
This year, voters in 11 states will consider medical or recreational marijuana ballot initiatives. But New Hampshire voters won’t be able to go the direct-democracy route either. The state does not permit ballot initiatives or referendums.
