Why can’t Texans vote to legalize weed? It’s complicated.

As states from New York to Colorado to Kansas hold voter referendums on issues ranging from weed legalization to abortion protections, some Texans may press their face to the windowpane and ask: Why can’t Texas do the same?

It seems simple in theory. If Texans can agree on an issue, why not hold a statewide vote to decide things once and for all? The short answer is that Texas is one of 24 states that do not allow statewide voter referendums or ballot initiatives, part of a Reconstruction-era measure to keep pure, unadulterated democracy filtered through elected representatives. The long answer is that local fights like Texas cities’ push to decriminalize marijuana expose what experts describe as an intensifying trend in recent years: as Texas’ urban centers skew more liberal, the state has pushed back more and more against local control. 

Since 1876, Texas’ state constitution requires any amendments to go through the legislature before ending up on Texans’ ballots. Specifically, a lawmaker must introduce the amendment, it must receive a 2/3 majority vote from the legislature, and then it can go to the public, where it could still be voted down. What constitutional amendments do pass are usually minor and technical, University of Houston political professor Brandon Rottinghaus said, and substantive change rarely happens.

“Of course, that’s by design,” Rottinghaus said. It’s no coincidence that states without direct voter referendums or ballot initiatives lie primarily in the South, he added, which has a long history of implementing guardrails against direct democracy in the post-Reconstruction era. For a brief period after the Civil War, Texas, like many other Southern states, elected a multitude of African American representatives consistent with its newly empowered African American population.

“Shortly after the 1876 constitution was drawn, you began to see that decline,” Rottinghaus said.

The downstream effects touch issues of both parties; the process also prevents the state from voting to secede from the United States in its very own Tex-it. Over the last century or so, lawmakers have attempted multiple times to update the state constitution, mostly recently in 1999. 

“It’s not too broad to say that anytime there’s been attempts at major structural changes to institutions in Texas, they have failed,” Rottinghaus said.

In the absence of a statewide ballot initiative, some pro-marijuana advocates have pushed to decriminalize marijuana city by city. Lubbock recently rejected a referendum to decriminalize marijuana in small quantities, but five other Texas cities, including the college towns of Austin, Denton and San Marcos, have passed similar initiatives. Although the moves were largely symbolic, they still drew the ire of Texas Republicans. In January, Attorney General Ken Paxton sued those five cities, arguing municipalities could not opt out of state drug enforcement laws. 

“It’s quite simple: the legislature passes every law after a full debate on the issues, and we don’t allow cities the ability to create anarchy by picking and choosing the laws they enforce,” Paxton said in a statement.

Cannabis lawyer Susan Hays called Paxton’s lawsuit “disingenuous,” because district attorneys, do, in fact, pick which laws to enforce under what’s called prosecutorial discretion.

“He damn well knows every prosecutor has the discretion to focus on what crimes to focus on,” Hays said. “The District Attorney should prioritize what the communities that elected them into office want to prioritize.” 

The action mirrored a similar backlash to the city of Denton’s referendum to ban fracking in 2015, which Rottinghaus attributes to much of the discord between Texas and its cities today. Since then, Gov. Greg Abbott signed a bill protecting fracking into law and also introduced House Bill 2127, which opponents nicknamed the “Death Star” bill. Struck down by a Travis County judge last year, the bill would have implemented broad state powers to curtail local rule.

“There has been in about the past decade a pretty significant pattern of the state clamping down on what local governments can do,” Rottinghaus said. “Big urban areas have become more Democratic and less in alignment with the state, resulting in things like Corpus Christi’s plastic bag ban. In those cases, the state is always going to win.” 

Hays said city referendums on issues like marijuana decriminalization are largely symbolic and don’t adequately address how the substance is treated on a criminal justice level. For that reason, Hays recommends electing district attorneys who vow not to prosecute low-level drug crimes to make the biggest difference in marijuana policy.

“It was a terrible strategy from the get-go,” Hays said. “It was asking for a backlash and here we have a backlash.” 

Dallas District Attorney John Creuzot is one of a growing number of county district attorneys who have adopted a marijuana-agnostic approach, electing not to prosecute minor drug offenses in favor of prioritizing violent crime. It’s a way of conserving time and resources, he said, but it’s also a method that has put more progressive district attorneys in hot water with the state.

In March, Paxton announced new reporting requirements for district attorneys serving cities with a population of 250,000 or more. The proposal would require county district attorneys to issue quarterly reports to the Attorney General’s office “to assist citizens in determining whether their local elected officials are inadequately prosecuting certain categories of crime, releasing dangerous criminals back into the community, engaging in selective prosecution, or otherwise failing to uphold their obligations.”

Creuzot said the new reporting requirements have stoked fear that district attorneys could lose their jobs simply by prosecuting as their constituents have elected them to do. In Creuzot’s case, the former circuit judge first ran for district attorney in 2019 on a progressive platform with the explicit promise to decrease marijuana-related prosecutions. After succeeding in reducing both prosecutions and police referrals for marijuana-related offenses, Creuzot won reelection with 60 percent of the vote in 2022.

“It’s broader than just criminal justice and it’s really about state control,” Creuzot said. “Some people liken it to voter disenfranchisement.” 

Many district attorneys in Texas cities submitted public comment on Paxton’s proposal and received no response, Creuzot said. The Attorney General has yet to release a final rule on the proposal in light of that feedback. In the meantime, Hays had just one remedy for city-dwellers hoping to restore local rule (regardless of their position on weed.)

“The only way to fight back is to win elections, and keep winning elections,” Hays said.