Why the cannabis referendum is too close to call - and who's to blame if it fails

Based on current polling, the cannabis referendum swings somewhere between a knife-edge win to a resounding rout for the 'yes' vote.

The latest Newshub-Reid Research Poll had the 'no' vote ahead at 50.5 percent compared to 37.9 percent saying they'd 'yes'. Meanwhile, the latest UMR poll had the 'yes' vote ahead by 49 to 45 - suggesting turnout will be crucial for the final result.

If the legalisation referendum fails, it will likely take the option off the table for a generation.

In a country where 80 percent of Kiwis have tried marijuana, why is it proving so hard for the yes vote to pull ahead?

Newshub looks at some of the factors that have made it difficult, who's responsible - and if it's too late.

The decision to make it a referendum

The Green Party made the cannabis legalisation and control referendum one of their bottom lines when negotiating with Labour after the 2017 general election.

Labour agreed to this demand in order to form a coalition Government and regain power from National.

Ross Bell, who heads up the pro-legalisation Drug Foundation, told Newshub earlier in October it should never have been put to a public vote.

"I think it's wrong that we're having to put something so complex and important to a referendum - that's the first mistake," he told Newshub. "Having said that, no one else was ever going to put cannabis on the table."

So why did the Greens decide to put it to a referendum?

"There's been decades of political inaction on cannabis reform, despite masses of evidence that its criminal prohibition causes more harm than good. A majority of Parliamentarians have admitted to using cannabis, but now oversee a law that criminalises people who do the same thing," Green Party drug reform spokesperson Chlöe Swarbrick tells Newshub.

"This referendum is the first real opportunity we've had to fix the law on this issue in generations, and we secured it in a Confidence and Supply Agreement with the Labour Party.

"Instead of politicians sitting on their hands, we've cut through stasis with this decision now up to the public. We're really pleased that the law being voted on provides a solid framework for regulation, with careful controls for licencing, support, and restrictions on purchase."

Pushing for decriminalisation before legalisation

Bell told Newshub earlier in October that decriminalisation might have been easier in some ways, but the outcomes are worse.

"As for whether we should decriminalise first as a stepping stone to legalisation, politically and pragmatically it may have been the correct step to take," he said.

"But that's a political question - it certainly isn't the right thing to do."

He noted while it is a "halfway house to legalisation", it's a "really, really bad one".

"Decriminalisation still leaves control of a potentially harmful substance in the hands of an illegal market... So while may people may think it's a stepping stone, it's a really stupid one," he said.

"The Greens were right to push legalisation rather than decriminalisation."

We Do campaign spokesperson Russell Brown also addressed the issue on his Public Address blog, saying he hears the argument for decriminalisation "fairly regularly, usually from more conservative voters".

"I understand the appeal of decriminalisation: it seems like a nice middle ground, easing the harm of criminalisation without going all the way. But I also think that it's clearly an inferior option that comes with its own risks," he wrote.

"Even if you formally decriminalise use and possession - and choose a flavour of decriminalisation where it is not an offence at all to use or possess cannabis, but producing or supplying it can only be done by criminals - you're missing out on a lot of benefits. No standards, no age limits, no potency labelling, no separation from the sale of other substances, no public revenue."

National pollster and centre-right commentator David Farrar tells Newshub the 'yes' vote should have pushed for decriminalisation before legalisation.

"I do think it was a mistake because all the great social progress had been somewhat incremental," he says.

"If you had gone back to 1986 with the New Zealand Homosexual Law Reform Act and said this isn't just about decriminalisation, it's also about gay marriage, same-sex adoption, it wouldn't have passed."

Jacinda Ardern's silence

The latest Newshub-Reid Research Poll showed support is most likely to come from Green voters (85.5 percent yes).

But even Labour supporters weren't overall in favour - with just 45.9 percent saying they'd vote yes. Prime Minister Jacinda Ardern has repeatedly refused to say which option she's voting for - and her voice has been conspicuously missed.

"I think it's really complicated. Because the Labour Party hasn't put up a strong defence of the Bill it's created a vacuum," Bell says.

"Chlöe has come out really strongly but Greens poll not very well and some people see it as a Greens issue."

Farrar has no doubt that if Ardern had spoken out it would have swayed Labour voters.

"The failure of Labour to get behind it is unfair, it's been left to Chlöe who has done a good job," he tells Newshub.

Farrar says he's personally voting yes, but hasn't seen it's likely to win. And he believes that even if Ardern spoke out in favour now it's too late to make a difference to win over Labour voters.

"Jacinda can't change her stance now. People don't just change their minds, they need to get accustomed with the issues over time," he says.

Swarbrick told Newshub: "If Jacinda Ardern believes voting yes in the cannabis referendum is the right thing to do, she should say so."

National campaigning against

While Labour's most popular figure has been silent, National has come out strongly against.

 Leader Judith Collins revealed in August the entire caucus would be voting no, and both she and former deputy leader Paula Bennett have been actively campaigning for a no vote.

Newshub's latest polling shows National voters are likely to be strongly opposed (71.6 percent no). However Bell says they didn't use to be so much against it.

"Research at the end of last year showing support from voters had them in mid-40s. The reason they've dropped is this has become a partisan issue," he tells Newshub.

"We're seeing people getting quite tribal and following what their party says. Even ACT voters who are pro-freedom, the poll shows they're against. It's like how the flag referendum became a referendum against John Key."

Once the National Party came out against en masse, was there any chance of preventing this becoming a partisan issue?

Farrar says it "certainly made it harder" - however the National Party doesn't control its voters.

"You can work around the party MPs," he tells Newshub.

"I would have gone to former National MPs and see if I could get them onboard. Hire campaigners from the centre-right and consult with them about what would get through to centre-right voters."

A failure to connect with right-wing voters

In order to reach these voters you need the right arguments, and the commentators Newshub spoke to say the 'yes' vote has failed to understand what drives centre and centre-right voters.

"The various 'yes' groups seem more concerned with winning an argument with centre-right voters than bringing them around. This is reflected in various campaigns that seem almost designed to alienate moderate and conservative voters," conservative political commentator Liam Hehir tells Newshub.

"Instead of focussing on the fiscal cost of enforcing current laws, for example, it is more common to encounter arguments that older voters are hypocrites for enjoying wine while prohibiting marijuana use.

"That's a good point to raise if you're trying to shut a relative up at a dinner table but it's not the type of message to bring them around to your way of seeing things."

Farrar says these arguments are unlikely to persuade more conservative voters.

"Fundamentally the yes campaign has tagged too much towards people on the left rather than people they need to connect with who are in the middle and centre-right," he tells Newshub.

"I think there was an emphasis on how it's unfair to people with cannabis convictions but that doesn't convince a 70-year-old conservative at home. What will convince them is 'do you want gangs making that money or the Government'."

For a counterpoint, Bell says his research shows it's difficult to change these people's minds.

"We tested messaging on undecided voters and strategically we have accepted those older conservative voters are pretty locked into a no position, they got locked into pretty quickly," he tells Newshub.

Farrar also sees problems with the strategy behind much of the advertising, and who figures in it. One image posted to Twitter shows some of the people who will be voting yes. It features a who's who of politicians, professors, activists and media commentators.

This didn't impress Farrar, who called it "another terrible ad from the yes campaign".

"I'm voting yes, but the yes campaign has been awful. To win the vote they need to appeal to Nat voters as it is their net -51 percent opposition that is dooming it," he posted to Twitter.

"An ad that starts with Helen Clark and is massively dominated by figures of the left will drive persuadable Nats away. If I was running a yes campaign I'd have a former Nat Minister talking about how law change would be good for the economy, good for law and order and good for health."

Swarbrick denies the campaign is - in her words - a "bunch of lefties".

"Advocates come from across the political spectrum. See, for example, former National Party Minister Chester Burrows, who's come out strong for cannabis control," she told Newshub.

"Proponents of a 'yes' vote come from a range of political and cultural backgrounds. Again - it's not a matter of left or right, but a decision of whether we continue to ignore the harm of prohibition, or if we accept that people are and will continue to use cannabis, and move to make it as safe as possible."

And some of the blame for failing to reach out to right-wing voters has to go to pro-legalisation right-wing supporters.

Bell thinks too many of them have been silent, or only spoken up at the last moment.

"We've only just had Matthew Hooten coming out in the Herald why they should just say yes," he says.

'Fear' v 'families' on the campaign trail

In part, the weaknesses of the yes campaign are also due to the strengths of the no campaign.

In an excellent article for The Spinoff, Alex Braae caught up with Family First in Gore as the conservative group worked to rouse the country against the 'yes' votes on both euthanasia and cannabis legalisation.

Braae notes the group has succeeded by being "phenomenal networkers", adept at the "long, hard grind of campaigning".

"Family First has been on tour over the last few months, with something like 37 dates in total. It can get a crowd in Paeroa, Kerikeri or Rangiora, along with stops in the major cities," he writes.

After sitting through the meeting Braae gave his appraisal of Family First: it understands the concerns communities have and gives supporters the arguments they need to convert others.

"If Family First is going to win its battles against the referendums, it'll need to do it conversation-by-conversation, reframing the arguments each time so they take place on the most favourable ground," Braae writes.

"On cannabis, it seems clear that the Say Nope to Dope campaign has out-worked and out-messaged pro-legalisation campaigners."

Newshub asked Say Nope to Dope campaign spokesperson Aaron Ironside what messages he's getting from the community and what messages he's giving back.

"All over the country, we have heard concerned Kiwis be incredulous about expectations of reduced cannabis use and black market operations," he told Newshub.

"Families are naturally protective of adolescents who they know are the most vulnerable to early cannabis use. This draft law does nothing to protect them and sends them back to tinnie house.

"Employers worry about workplace safety and reduced employment rates as usage becomes more commonplace. Harm reduction is inconsistent with increased use.

"New Zealand can afford to wait - we have medicinal cannabis and a health-based criminal policy in our law. Those law changes are enough for now. The risk of early adoption is a generation of young New Zealanders who are too precious to be wasted."

Speaking to Magic Talk's Road to the Election last month, Swarbrick was asked as to why the 'vote yes' movement appeared to be losing momentum - and pointed to "misleading frames of arguments".

"I think what it [the polling trends] says is there still is a huge amount of confusion, which is largely being spurred by a 'no' campaign seeking to cast fear and doubt, to basically try to tell people that to vote yes to implement a sensible, mature, adult framework - to reduce harm, to increase community wellbeing, to ensure our kids are not using this substance - is conflated with the idea of whether you support cannabis or not," she said.

She backed this in a statement to Newshub last week.

"Unfortunately, the discourse around the referendum has featured a lot of scaremongering and dogma from those wishing to protect the status quo, despite clear evidence it's causing harm," she said.

Ironside denies running on 'fear and doubt' and says he's "disappointed that the debate has often moved from the issue to the personal".

"Exaggeration has often been employed to distort our position," he tells Newshub.

"For example, we have never claimed that there would be 'a cannabis shop on every corner' - rather we expressed concern about the BERL report revealing there would be a shop in every community."

COVID has also had a dramatic impact on political parties campaigning around NZ - and the impact on the cannabis legalisation campaign has been no different.

"COVID has caused real havoc for the planning we had," Bell says.

He explains they had a nationwide roadshow planned, but this had to be cancelled due to the impact of the virus. Instead, they pivoted to digital. 

"It's hard to switch that off," he says. "Once you pick a path, it's hard to turn aside otherwise you're wasting money."

Ironside notes the same impact has been felt on the 'no' vote.

"Everyone has been affected this year. Events were cancelled and often not rescheduled," he tells Newshub.

"Mostly, it has been a drain on the physical and emotional resources of the team as they campaigned for an extra month."

The final stretch to the referendum

With under a week to go, all sides are hopeful their final messaging and push for supporters to turnout will be enough to give them the edge.

"Heading towards a loss is getting people fired up and we've encouraging people to also have conversations with their friends," Bell says.

Ironside asks undecided New Zealanders to "really consider if we need to enter into this social experiment".

"Legalization is still very new in the USA and Canada, so why not wait to see what trends really occur over a reasonable timeframe," he says.

And Swarbrick says advocacy from experts across the criminal justice, addiction and health space is getting good cut-through to voters.

"There's no doubt the numbers will be tight, and will rely heavily on voter turnout, particularly from traditionally marginalised groups such as young people and Māori who we have seen are more inclined to support cannabis regulation and control," she tells Newshub.

"Drug reform shouldn't be a left versus right narrative. It's ultimately about harm reduction, which ought to be a bipartisan aim."