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Amendment 64 Repeal Dies: Colorado Lawmakers' Effort To Reverse Course On Marijuana Legalization Fails

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A last-minute effort by some Colorado lawmakers to repeal Amendment 64, which legalized marijuana for recreational use in the state last November, was abandoned late Monday night, dying on the calendar.

Sponsored by 24 senators including Senate President John Morse, Senate Concurrent Resolution 13-003 would have put two measures on the 2013 state ballot for voters to decide on regarding legal marijuana. First, voters would decide on the 15 percent excise tax and the 10 percent special sales tax rates, as outlined in House Bill 1318. If that measure failed, the second measure would ask voters if they wanted to halt recreational marijuana sales in the state.

The Denver Post's John Ingold reported that the resolution was introduced around 6 p.m., cleared a Senate committee less than an hour after it was introduced, but ultimately faced a midnight deadline for approval, a filibuster threat and nearly certain defeat in the House so Morse backed off of the plan around 9:30 p.m., Monday evening.

Morse says the repeal effort was just an attempt to get the attention of the marijuana industry and to encourage industry support for the marijuana taxes which will still be voted on in November. "Here is the inherent problem: The marijuana industry has no incentive to support a tax increase it promised voters," Morse said, The Associated Press reports.

However backers of Amendment 64 have been supportive of additional taxes on recreational marijuana since the campaign for legal weed began in the state in 2012. Amendment 64's language even introduced the 15 percent excise tax into the measure.

Mason Tvert, one of the pot reformers behind A64 and current communications director for the Marijuana Policy Project, said that legal weed proponents support the taxes being discussed in the state legislature.

"This is a sensible tax that has been designed to cover the regulatory needs of the system," Tvert told The Huffington Post. "We are fully supportive of the 15/10 version of 1318 approved by the House, although it would be nice if the 10 percent were locked in for two years. We hope members of the Senate will give strong consideration to doing that and ensuring this new legal marijuana market has an adequate opportunity to establish itself and eliminate the underground market."

If it would have passed, the repeal resolution may not have been valid to begin with -- it was called "unconstitutional" in a memo prepared by Ed Ramey of Heizer Paul Grueskin LLP which states in no uncertain terms that the proposed repeal of A64 would be invalid under the state constitution:

[T]he submission of the second component of the proposed amendment -- the constitutional repeal of the entirety of Colo. Const. art. XVII, sec. 16 [Amendment 64] -- would be unconstitutional and invalid under Colo. Const. art. XIX, sec. 2 [regarding the submission by the General Assembly of proposed amendments to the Colorado Constitution]."

Ramey explains in the memo that constitutional amendments from the General Assembly must only appear on the ballot in even-numbered years. The GA can place a question on an odd-numbered year ballot only if it concerns "issues of government financing, spending, and taxation." Ramsey goes on to state that A64 had to appear on the ballot in an even-numbered year and that a "wholesale repeal" of it could only happen during an even-numbered election. Ramey warned:

Appending this [repeal] provision to the tax component of the measure would, at best, render the entire measure subject to the procedural constraints of Colo. Const. art. XIX, sec. 2, or, arguably, invalidate it altogether under the single subject requirement of Colo. Const. art. XIX.

At the end of the memo, Ramey also points out the futility of attempting a repeal during this off-year election:

Were the tax component of the measure to be rejected and the repeal component approved by the voters, it is also possible that the courts could invalidate the repeal (as being improperly submitted under Colo. Const. art. XIX, sec. 2) while sustaining the vote on the tax component (as properly submitted under Colo. Const. art. X, sec. 20), leaving the substance of Colo. Const. art. XVIII, sec. 16 wholly intact except for the tax provisions which were the genesis of the measure's consideration in the first instance.

"We are pleased to have this clear and definitive legal opinion from a highly respected law firm," Amendment 64 representative on the marijuana task force Christian Sederberg said. "This further strengthens our position that this repeal proposal is an ill-considered means of addressing the tax portion of Amendment 64. The legislature shouldn't be playing games with these important new excise and sales taxes by tying them to a separate vote on repeal of Amendment 64. This would only encourage opponents of Amendment 64 to vote no on the tax in the hope of repeal. In fact, the only possible way a marijuana tax measure will fail is if it is done as part of such a repeal scheme. Let's have a clean vote on the taxes so that they will be approved and there will be funds available to regulate the system."

Colorado's Taxpayers' Bill of Rights requires that Coloradans vote on any tax increases so they will be asked to weigh in on the 15 percent excise tax and 10 percent sales tax on this November's ballot. The Associated Press's Kristen Wyatt reported that some state lawmakers, including Morse, fear that voters will reject one or both of the tax proposals leaving the state stuck with the tab for enforcing pot sales but without the budget to pay for it.

Amendment 64 states that the first $40 million raised from the 15 percent excise tax would go to to school construction. And although many voters who supported A64 did so because it could raise money for schools, lawmakers are concerned that even fans of that excise tax rate and the use of its revenue could be turned off by a total tax rate of 25 percent, not including additional state and local taxes that could lead to marijuana taxes exceeding 30 percent in some areas.

Although Coloradans are known to reject increased taxes when it comes to even popular state services -- take K-12 education improvement, for example -- when it comes to legal marijuana, state voters appear to be ready to buck that trend.

According to a recent survey from Public Policy Polling, 77 percent of Colorado voters support the 15 percent excise tax -- which Amendment 64 calls for and which is earmarked for public school construction -- as well as an additional 10 percent sales tax to cover the cost of regulating recreational marijuana sales. Only 18 percent of those surveyed were opposed to increased taxes on legal pot sales. The survey of 900 registered Colorado voters was conducted by Public Policy Polling from April 15-16.

In a statement, Amendment 64 backers said that state officials have told them that the cost to the state to enforce recreational marijuana regulations would not be greater than $30 million and said that the proposed 25 percent in taxes would still likely yield more than $60 million.

Colorado voters passed Amendment 64 last November making the limited sale, possession and growing of marijuana for recreational purposes legal for adults 21 and over. A64 states that adults can possess up to an ounce of pot, can grow as many as six marijuana plants at home (with only three flowering at any given time), but that home-grown marijuana can only be for personal use and cannot be sold, however, adults can gift one another up to an ounce of pot.

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