We have concepts where they go back and review everything that happened and then they send all of that to the state level before the results are finally certified so that is a very public process where people can see and observe what happened and theres already changes on Election Night people know what happened and why the changes were made and that the counting of provisional ballots that we have been focused on making sure we educate folks on the process and help them understand how this works because if we wait until after words its a lot harder to convince people after the fact so weve been doing a lot of that up front. I think that its a critical point and question we have to build bridges and help everybody feel like they are part of this and bring the country together. The question is how do you do that through Political Parties and i think one thing thats a little outside the box is figuring out how to draw the lines. There are many people that have one choice because the way the winds are gerrymandered so that is a serious problem. Do you think theres a possibility where the issues of cybersecurity or voter integrity might impact or change over interpretation of the constitution and once again voting issues come before the Supreme Court. This wouldnt be a good moment for the Supreme Court. I think more broadly the questions coming up are do we have a constitutional right to vote, it was written when only some citizens voted. The house was a federal piece of government, not the senate which went through an Electoral College that wasnt connected to the popular vote time so there are lawyers looking at this saying given where we are shouldnt we break it nice to constitutional right to vote which would have the effect of making access something that couldnt be denied as opposed to a privilege or couldnt be denied without good reason. Thats going to be some of the discussion that we see to be part of the partisan redistricting that we dont know how to create a standard that says this is a part of the redistricting so you will see more of the voting and redistricting and Campaign Finance issues as well. This is a fascinating discussion but i wonder if in fact the horse has left the barn with one candidate and a lot of followers. People probably will not be persuaded. [inaudible] its interesting because im not sure the feeling is that its going to be stolen but if we lose that it must have been stolen and that goes to the good question about how the voters view this. If you are in a situation with the geographic disparity after the last elections my younger brother called me and said i do not understand how this happen happened. Do you think there was fraud because i dont know anybody. That is the geographic disparity where you have people i been quoted in the press where everybody says everyone i know is voting for my candidates so if he loses there must be something wrong with the results and i think the good question is how does the winner of either side i suppose because both are pretty deeply entrenched and only know people that are voting for their candidate. How does the country accept that result saying now we have a president bu that just accepting the legitimacy of some of that comes from this discussion with large in the press coverage and the actions of all those secretaries of states talking about the system so that perhaps between now and election day there will be a greater understanding that as it happens, your candidate loses it maybe they didnt get enough votes and you should be arguing about why not as opposed to the sense that somehow the votes were stolen. Please join me in thanking the panel. [applause] the first anecdote is to go out and vote. [applause] now the decriminalization of marijuana for medical and Recreational Use in states like colorado. State solicitors general and legal experts talk about u. S. Drug policy and the impact on Law Enforcement and the economy and the neighboring states. This was part of the tenth circuit judicial conference. Its 90 minutes. Im really pleased to have a chance to introduce you to the next session which is current and emerging issues of legalized marijuana. And when i was thinking about this panel, i thought it would in the world am i doing here moderating a panel on marijuana. My wife said you probably got the burnt end of the joint. This will not be an interactive session. [laughter] it is undeniable over the last decade weve witnessed a tremendous shift in the legalization in various forms among the state. As of today, for states, colorado, washington, oregon, alaska and the district of columbia have legalized the Recreational Use of marijuana. Another 25 permits miracles to become medical marijuana or the position. Position. India is a testament to the timeliness of the session, the voters at least in the nine states will decide the various measures of legalization of arizona, california, maine, massachusetts, nevada are considering legalizing the Recreational Use of marijuana as well. Arkansas, florida, montana, north dakota are considering medical marijuana. That fascination is no new phenomena. Marijuanas existence dates back over 10,000 years and came to the United States before the american revolution. In fact the early revolutionaries grew strains of cannabis mostly for the hemp production. Closer to home at the time that it became a state in 1976, both hemp and marijuana were legal and have multiple uses. But in 1917, is a part of a growing movement, colorado, the lies to the use of marijuana as a misdemeanor and later made it a felony. That situation lasted for 40 years and nobody over the age of 60 here knows that the use of marijuana hit its stride in the 1960s especially on the college campuses. Im only 59 and a half, so im not sure what we are talking about. In 1970, recreational possession was downgraded to a misdemeanor and 1975 we made the possession and private use less than a petty offense. Colorado has been a leader in the United States. In the late 1970s and early 1980s, colorado passed several measures to legalize medical marijuana, but the efforts never got off the ground due to federal law classifying medical marijuana as a schedule one controlled substance. That brings us to the current state of the law in colorado. In 2000, Congress Passed an amendment to 20 which amended the constitution to allow for the medical use of marijuana. In november, 2012, colorado approved amendment 64 making colorado along with washington one of the first states to legalize the Recreational Use of marijuana. A number of quick statistics. In 2015 marijuana sales came in at nearly 1 billion, which is up from nearly 700 million in 2014. My panelists will comment that we are on track for a 2 billion in sales this year. Over 135 million of tax revenue so far. Currently there are 698 dispensary storefronts in colorado. Thats more than a number of thf mcdonalds, starbucks and 711 combined. Notably legalization is a policy meaning individual cities can decide or not to allow marijuana in their city limits. 321 jurisdictions in colorado have already banned the Recreational Marijuana businesses. So, with that overview i would like to recognize the distinguished panel of speakers. Importantly, the Panel Members represent academia, and the bar so i hope you can watch from the theoretical and practical understanding of their experiences. The first speaker is Professor Robert at the Vanderbilt University where he teaches constitutional law and policy. The leading expert on Marijuana Law and policy and has written and testified on the Constitutional Authority to legalize marijuana. Federal preemption of state Marijuana Reforms. And shes in the process of completing a textbook on marijuana to be published later this year and i know that my alma mater, his book will probably be and in the classroom extraction. Michael will go down in the First Circuit and we welcome taylor. The second speaker is well known to colorado, the professor at the Marijuana Policy at the university of denver. An expert on Marijuana Law review and was a member of the governors amendment 64 Implementation Task force. They are altered states. At the next speaker is chabrol michael in the state of wyoming. The Senior Assistant paid he clerked for justice on the Supreme Court. The next speaker is a special introduction for me. Fred is the solicitor general of the state of colorado and this is one of my traits because hes one of my clerks. Supervising of the strategy for the appeals as well as the select litigation. He was the assistant general and worked in denver a graduate of the university of Chicago Law School in addition to quit working for me, hed judged for Mark Phillips and the district of illinois and i might add he has a tree this yea treats thisn addition to speaking on the first bar conference he has an argument in the Supreme Court coming up in october. The next speaker was the deputy solicitor general in oklahoma with the issues on behalf of the state prior to joining the attorney generals office, mr. Mithun mansinghani worked in washington specializing in the appeals and Administrative Law cases, a former clerk on the fifth circuit and we welcome your attendance today. Lets get started with professor mikos. Thank you for the conference inviting me out. Here is a rich and fascinating body of marijuana walls that developed over the last 20 years and to understand these we need to understand the federal government because many features of state law are quite peculiar. I will talk about three examples of these workarounds and why they may be problematic for the federal and state perspective but before doing that, this is the 20,000foot view of the 25,000foot view of the Marijuana Reforms. This all started back in 96 with californias passage of proposition 215 that permitted some people to use marijuana for medical purposes. That particular type of reform proliferated across other states in the ensuing years and as depicted in the chart the red bar represents the medical Marijuana Reforms. It progressed steadily and picked up in 2009 and 2010. Then use all the new forms emerge perhaps notably in colorado and in Washington State in 2012 they started to allow people to use marijuana for any purpose. They are represented in green and then in 2014 it is noteworthy that you saw a number of conservative states that were reluctant but they didnt legalize the chemical for purposes and that they are represented in black. Its a little hard to tell them from the prohibition states that one of the things you see on this chart we have 43 states that allow some people to use marijuana legally. Theyve gone beyond the criminalization and allow certain people to possess the drug legally even though throughout this entire period the content of the federal law has remained unchanged and banned the use and possession but i want to suggest to you the states found ways to work around federal obstacles. Let me give you three examples of that. So the first one, the states found ways to get doctors to help police the medical use of marijuana without exposing the doctors to federal sanctions. This was absolutely critical in the miracle to be for medical marijuana states that wanted to limit access and allow people to use it for medical purposes but they didnt want it being diverted to the nonmedical purposes so for other drugs and controlled substances the states commonly used to positions for example if you want to go out and get percocet which is a controlled opioid painkiller, you need a doctors prescription. You can just walk into walgreens or cvs to buy it. This date couldnt do that for marijuana. Thats because the federal dea said the physician cant prescribe this particular drug or any drug on schedule one of the substances act. If they do they threatened to yank their authority to prescribe other drugs in other words they would yank their registration to prescribe controlled substances so the state of miracle they become Marijuana Program would be a nonstarter because no physician will risk the registration with the medical press i to send the likelihood in order to prescribe marijuana. In fact the states already knew this when california passed the opposition in 1996. I put up your examples of a wall that was passed almost two decades prior. This one was passed in virginia in 1979. It is a law that allows people to possess and free of the sanctions so long as they get a prescription to use the drug. But like 1979 no physician was willing to follow through so they were still on the books in those days but the they get inte practical effect. In california the proponents found a workaround. Proposition 215 on the required a physician to recommend but not to prescribe. That may seem like semantics and that was the position but the california leader convinced the ninth circuit t that made a difference, the ninth circuit declared that was protected speech and as a practical matter that meant they couldnt punish doctors for issuing the recommendation even though it could every other state followed thstatesfollowed the path and ra recommendation. They call it a written certification and so on. The secon second wave a workarod the mall they found ways to diffuse the threat of the federal crackdown. If people couldnt get marijuana its like me telling my 5yearold son you can have an alligator as a pet you can buy it the next time we go. He will be happy that ive allowed him to get an alligator is attached but be disappointed when pets mart doesnt offer one. The states try to provide two basic ways to obtain marijuana under state law. One is to grow it themselves is probably a trafficking offense but these states you can grow it yourself into the other was a commercial model. You can go and buy the drug from some commercial operation like the shop di that you see in colorado today. Today in fact the states mixed and matched the different forms of supply. The regulations employ one or the other of the two models and they can basically fall into we can typecast the regulations in one of four types. Some allow you to get marijuana but only if you grow it yourself if this is rare. Michigan is one of this feud that follows the route that the only way way is to grow it your. Theres no commercial operation. Second, you only have commercial operations. You cant grow it yourself and have to buy it from a regulated shop. A third is mixed. You can grow it if you want or go into one of the hundreds of dispensaries now in operation across the state and theres a fourth model employed in a couple states. Its where they prefer commercial cultivation. They normally dont want you to go with but there is a stored away from your house you can grow it yourself. This depicts the positivity for the regulatory models over time. The red on the particular chart depicts the states that had the cultivation only. In other words if you wanted to marijuana you have to grow it yourself. Then the states that say you can only get it from a big store, purple is a combination of the two things you can choose and the bluish color are the states that the vertical position that make exception for the personal cultivation. It feels weird to think of 1996 as the early days were long ago but personal cultivation was the only game in town. States were almost exclusively read. Red. There were shops operate but they were still considered illegal at least until 2003 when state started experimenting with this and they started to embrace that commercialized model allowing commercial stores to sell marijuana. They turned purple and allow people to grow it themselves and buy it in stores and interestingly every state that has passed Marijuana Reform since 2009, every single one of the states is a blue state that wants you to go to the store to buy it rather than grow it yourself. So why the sudden shift it goes back to federal enforcement. They are much more vulnerable targets dan are the little guy grilling a handful of plants for their own needs or someone they are taking care of. They were willing and able to shut down the suppliers that simply couldnt the rest of the little guy or go after individual patients and caregivers because there were far too many of them in the states. The states embraced the cultivation to ensure that qualified but have a supply of marijuana that wouldnt be interpreted by the federal government. But in 2009 started to change in the federal enforcement practice that is the first year the department of justice issued memoranda. They are giving the green light to the cultivation and saying. Its when they start to legalize the cultivation following the issuance of the memorandum and use all of them celebrating to sell marijuana circa 2004. Theres hundreds of these shops in colorado and other states as well but even as the commercial supply caught on theres something the states havent done that seems surprising but only until you consider federal law. Let me give you my final example. Where are the staterun marijuana sources to this day no state has directly owned and operated a marijuana store. The experience following the prohibition many own and operate a piece of the alcohol distribution market. Its to curb the private enterprises to grow their market and if the popularity today and they continue to directly control some aspects of alcohol distribution. Why havent any state done this for marijuana why arent there any stores. If states were to own and operate a marijuana Distribution Center someone could come up and argue to block. The same thing could be done with a private licensee because it isnt necessarily a state actor. You might hear later there is a regulation to the private sector but even if you eliminate those regulations it doesnt stop that person from operating the store. They may just do so free and clear. So even if these preemptions are out there, they are much more salient for state owned and operated stores and they are the reasons the states havent gotten into this particular business. Let me briefly conclude and get my thoughts on this. Three examples show how the federal law influenced the development of the state law. In a large way theyve distorted the development of the state law. I think for the last 20 years, the federal government has been playing a highrisk strategy. In other words, the federal government was adding the states wouldnt be willing to scale back the prohibition if they could get doctors to issue a Prescription Monitoring Program they have come if they couldnt create these highly regulated commercial operations into the federal government got it wrong. The result is less than ideal from the states and federal government. It isnt one in isolation. Let me give you an example to go back to the personal cultivati cultivation. That was hardly the ideal model to say to a 70yearold cancer patient you can use marijuana legally, just grow it yourself. Not everyone has that sort of green, or access to friends that know how to grow and distribute marijuana. So in their perspective it didnt serve the cultivation model and this wasnt the model you would want the states to choose because they choose it because they knew the federal government couldnt crack down on the cultivations but at the same time and for the same reason. It was for the states to supervise them and go out and monitor the 50,000 or 100,000 who might be growing a few plants in the basement to make sure they are not selling a little bit on the side. So ultimately this example tried to show how a hardball strategy in the early days as and one that works out well for either party by the end of the. Taking a word here they are very ably giving us the sense of how he got here but i want to talk about where we are now and what the implications are going into the election. Rob mentioned that the 2009 memo replaced with another more cautionary memo in the department of justice and finally 2013 most people refer to this memorandum stated the obvious to State Governments do most of the work of the drug als paul enforcement in the country while the federal government continues to prohibit, but the soldiers intthat thesoldiers ano it should be no different from that even as the state experiment with alternatives to prohibition into voices deference to the states or willingness to let the states engage in the experiments in the federal criteria set forth in the principal ones to the north and east will have something to say shortly. Another is the sale of marijuana to minors and the development of organized crime and in the distribution prohibited but so long as the federal government or the State Government are doing a good job among these metrics is there a memorandum from the department of treasury or the Financial Crime been no second memorandum on the capacity to try to produce and sell marijuana with president obama and attorney general holder and that is p we see what the states are doing and the strong plurality to the majority or supermajority of state and we are going to see how that experiment plays out. Its being stated this isnt the legalization of marijuana. Its a matter of enforcement. This forbearance was written into law through the enactment in various federal spending provisions. If you havent heard about these dont beat yourself up 542 of a longstanding bill enacted in 2014 and 2015 which stated with respect to the 34 different states to prevent them from implementing their own state laws that authorize the use or cultivation of medical marijuana. That is if they not be used for justice to prevent such states from implementing their own state law. That is the language of the statute. It was a member of criminal numl defendants in california and elsewhere said the department has now prohibited from the criminal Marijuana Law if it was authorized by the state law so they took this action to 242 and three weeks ago we agreed. It prohibits the department of justice from spending funds on the relevant appropriation act for the prosecution permitted by state Marijuana Laws and it complies with such. Guest it says if you are acting in a court with a state law you may not be a federal wall and it created some circumstances where in a federal prosecution that becomes relevant if you are compliant with state law. There are examples of the courts but this will lead to quite a bit of litigation over who is in accord with the state law if they were to say the medical marijuana is medical only. Even if it were to mean that. Its the kind of state and federal government and i say that because as it made clear to the. The reason its important to state that even if the Department Said it wont be prosecuting and the ninth circuit said it cant, there are lots of collateral consequences. The best known as the banking. No banks will consistently or for long. That means in colorado is a 1 billiondollar cash business. Its a spectacularly bad idea for people in the business index for the employees that have to go home with their pay checks and cash but more than that is bad news for state regulators because one of the things the federal government has charged the states with is keeping organized crime out and one of the things regulators are trying to do is attack. There is no paper trail. Theres different state goals as well as putting citizens at risk. Its something north of 70 . If they increase the cost by consuming more marijuana again this may not be the best Public Policy outcomes