Brownies, revenge and a doctor’s touch: inside the close vote to legalize marijuana in Virginia

By: - April 10, 2021 12:01 am

The voting board shows a 20-20 tie on Gov. Ralph Northam’s amendments to SB1406, the marijuana legalization bill on Wednesday. Lt. Gov. Justin Fairfax broke the tie by voting for the bill, passing it with the governor’s amendments moving the effective date up to July 1, 2021. Democrat Chap Petersen, D-Fairfax, was the only Democrat to vote against the measure. (Pool photo by Bob Brown/ Richmond Times-Dispatch)

It was a few hours until the General Assembly would vote on final amendments to legislation that would make Virginia the first state in the South to legalize marijuana and Sen. Adam Ebbin, one of the bill’s Senate patrons, was feeling confident.

As a joke, he stopped by a Richmond bakery to pick up a plate of brownies, commonly associated with the drug they were about make legal. “I thought it would maybe lighten the tone,” Ebbin, D-Alexandria, said. “Several members asked what was in them and I told them they were placebos.”

But after he delivered the treats to his colleagues in the Senate, Ebbin learned votes he’d thought he’d secured were slipping away and amendments handed down by Gov. Ralph Northam to salvage his bill might not pass. “I was regretting that I stopped at the bakery,” he said, describing the turn as “stomach wrenching.”

Northam’s amendments, which among other things sped the timeline for legalization from 2024 to this summer, ultimately passed on Wednesday. But the vote came down to the wire after two Republican supporters got cold feet and a Democratic holdout furious at a colleague in the House threatened to torpedo the measure.

It was not the first time the bill’s passage, which Democrats in the General Assembly view as a key achievement of their first two years in power, appeared uncertain.

In November, Northam announced he would make legalization a priority for his final year in office, but the proposal’s success was far from assured. Democrats in the House were always confident they had the votes. But in the Senate, where Democrats hold just a one seat advantage, Majority Leader Dick Saslaw, D-Fairfax, gave it at best 50-50 odds.

The bill ended up faring better than expected in the chamber: The Senate agreed to a version of the bill that delayed many key decisions about what legalization would look like until next year, but took the immediate step of ending all penalties for simple possession of the drug — a key demand of civil rights groups, who reminded lawmakers the original impetus for the legislation was ending disproportionate enforcement of drug laws against minorities.

Sen. Adam Ebbin, D-Alexandria, the first openly gay person elected to the General Assembly, spoke in favor of the Virginia Values Act last year. (Ned Oliver/Virginia Mercury)

A legislative standoff

But as the legislative session wound down in February, a new problem emerged: The House and Senate had passed very different versions of the law, and days of negotiations had yielded little progress in reconciling the two positions.

The House refused to go along with the Senate’s plan to require a second round of votes on the bill next year, which would leave the regulatory and criminal structure up in the air. Democratic House members worried, among other things, that if they lose their majority in this year’s elections, the legislation would be doomed.

House members also objected to the Senate’s plan to legalize small amounts of the drug beginning this summer, which House Majority Leader Charniele Herring, D-Alexandria, who carried the legislation in her chamber, worried would allow the illicit market to run wild.

And they rejected a little-noticed provision inserted by the Senate that would have put a non-binding voter referendum on the ballot in November, which lawmakers in the Senate argued would force additional conversations about the bill before it came up again next year but House leaders viewed as a pointless exercise with the potential to confuse voters and interfere in their efforts to hold their majority in the November election.

The morning before the General Assembly was scheduled to adjourn, negotiators from the two chambers believed they had reached a deal. The House agreed to the Senate’s reenactment clauses that delayed action on most of the bill until next year and the Senate agreed to give up the July 1 legalization of simple possession and its demand for a voter referendum.

But by the end of the day, it had fallen apart, with Senate lawmakers again insisting that the legislation include a voter referendum — a position that perplexed House lawmakers, who, as the ones who would be on the ballot alongside it, had the most to gain or lose from the plan.

In leaks to the press, the two sides pointed fingers and a late-night Twitter war unfolded, with a national reporter singling out Sen. Scott Surovell, D-Fairfax, as a key holdout, leading to a barrage of criticism. “My phone is blowing up and I was getting Twitter bombed for about six hours,” Surovell said, calling the attack irrational. He maintains that while he initially proposed and supported the referendum, it was a caucus decision to push for its inclusion in the bill — one he said was made during a meeting he didn’t even attend.

A compromise that accomplished little

By midnight, the stalemate broke when the Senate agreed to drop the demand.

The compromise, however, presented a brand-new dilemma. The legislation the two chambers agreed to and would go on to pass accomplished almost nothing.

Without additional action next year, all it would have done was legalized possession of small amounts of marijuana three years later in 2024 and allowed the state to begin setting up a new Cannabis Control Authority, which would allow but not guarantee that the state could open a legal retail marketplace at the same time.

It was met with immediate disappointment. Eight Democrats in the House of Delegates refused to vote for the measure. Democrats in the Senate were more supportive, but some still held their nose as they cast votes in favor.

“This is not marijuana legalization,” said Sen. Jennifer McClellan, D-Richmond, who had led the push for simple possession to become legal this summer.

The vote, however, got the bill back into the hands of Northam, who had the authority to send down amendments that lawmakers could consider the following month.

The lobbying began immediately. Virginia NORML, the state chapter of the National Organization for the Reform Marijuana Laws, said it sent thousands of constituent emails on the bills. A coalition of civil rights groups led by the ACLU of Virginia and Marijuana Justice, highlighted data that showed even with the penalty for simple possession reduced to a $25 fine, Black Virginians were still four times more likely than their White counterparts to be cited by police.

Gov. Ralph Northam introduces House Speaker Eileen Filler-Corn, D-Fairfax, as the first woman to hold the position in state history. (Ned Oliver/Virginia Mercury)

Northam steps in

Northam’s administration, which drafted the initial proposal but took a hands-off approach as it made its way through the General Assembly, said the governor was open to making changes, but little else.

His staff said that behind the scenes, he had always been open to July 1 legalization and, upon seeing the legislation that emerged from the General Assembly, quickly resolved to send down an amendment that would end the state’s prohibition on the drug this year.

“We knew July 1 would come up,” said his chief of staff, Clark Mercer. “We were open to it, we were receptive to it and, certainly when the conference report came out, we decided July 1 would be the most important thing to return to them.”

Mercer said Northam didn’t make that decision public for several weeks because he wanted to line up support among House and Senate leaders, a process that involved conference calls with negotiators on the bills and one-on-one phone calls with individual members who were on the fence.

He posited that Northam’s status as a pediatrician who has never used the drug made him an effective messenger to reluctant lawmakers.

“There were a lot of folks working really, really hard on this who don’t smoke marijuana or use it,” Mercer said. “The whole point was — we’re not encouraging people to go out and smoke, but the fewer interactions with police over something that’s going to become legal the better.”

The first public indication that the amendment was coming came from House Speaker Eileen Filler-Corn, D-Fairfax, who a week before lawmakers returned to Richmond put out a news release backing July 1 legalization — an unexpected break from the negotiating point upon which her caucus had steadfastly insisted.

“I saw it as my job to make sure I was leading on this issue and make sure everyone knew this was important to me,” Filler-Corn said. “I knew that my voice would send a message and make sure everybody understood exactly where I was and prior to us actually voting.”

At that point, House leaders hadn’t counted votes, but said they were confident Northam’s amendments, which also increased funding for drug recognition training for police and public health messaging, would pass. On the Senate side, lawmakers voiced confidence as well, pointing to supportive statements from two Republicans, Sens. Jill Vogel, R-Fauquier, and Richard Stuart, R-Stafford. Both had previously voiced concern that the earlier version of the bill the assembly had passed would cause mass confusion by mistakenly leading people to believe marijuana had become legal.

A final close call

It all fell apart again on Wednesday as lawmakers reconvened to consider Northam’s amendments.

The House had the votes, but Republican support in the Senate vanished amid opposition to pro-union language Northam had also proposed including in the bill, which if enacted again next year would have required marijuana businesses to remain neutral in union drives and bar them from classifying more than 10 percent of their workers as independent contractors.

Stuart and Vogel said they had expected to be able to vote on the amendments individually, but because they instead came as a single package, they were withholding their votes.

“I cannot support a substitute that I believe very detrimentally undermines our right-to-work law in Virginia and is going to set a very, very bad precedent,” Stuart told his colleagues.

That left Democrats scrambling to convince two notoriously contrarian members of their own caucus who had spent the prior week telling people they would not vote for the bill, albeit for very different reasons.

Sen. Chap Petersen, D-Fairfax, had sent out a press release that called social equity provisions puzzling and concluded, “No thanks, bro. I’ll pass.”

And Sen. Joe Morrissey, D-Richmond, had insisted he would vote against the bill unless he got a commitment to revive failed legislation eliminating mandatory minimum sentences.

Morrissey quickly emerged as the focus of the pro-cannabis lobbying effort, but the push was complicated by the very personal nature of Morrissey’s grievances and logistical concerns that made them impossible to address.

Sen. Joe Morrissey, D-Richmond, reads an obituary of the late Lt. Gov. John Hager as he sits at his desk before the floor session in the temporary Virginia Senate chamber inside the Science Museum of Virginia in Richmond, VA Friday, August 28, 2020. (Pool photo by Bob Brown/ Richmond Times-Dispatch)

The bad feelings go back more than a month to the final night of the legislative session, when Morrissey said Del. Mike Mullin, D-Newport News, reneged on an agreement to pass a more expansive version of the sentencing bill sought by the Senate. In exchange, Morrissey said, the Senate had agreed to send the House back its copy of the marijuana bill, which it had been holding back as leverage.

Morrissey said he had wanted to use the marijuana bill as a bargaining chip because he viewed the sentencing bill as having a more immediate and profound impact on the criminal justice system.

“It was the only way to get the House’s attention,” he said. “They wanted marijuana and they wanted it bad.”

Mullin declined to comment, but members of the House privately disputed Morrissey’s version of events.

In either case, by Wednesday, with the session all but concluded, there was no procedural avenue remaining to address the sentencing bill, a point Morrissey conceded when he ultimately agreed to support the marijuana bill in exchange for a general commitment from fellow Democrats in the Senate and Northam’s office to support the sentencing reform effort in the future.

“I’m taking everyone at their word,” Morrissey said.

And with that, Democratic leaders in the Senate called for the vote to proceed and, as expected, the board lit up with a 20-20 tie.

After a dramatic pause, Fairfax stepped in to break the tie.

“The chair votes aye,” he said, banging the gavel. “The governor’s recommendations are agreed to.”

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.