Rick Olson: An Epitaph For Measure 7

The people of North Dakota finally had an opportunity on Tuesday to decide the fate of North Dakota’s protectionist pharmacy ownership law once and for all.

Well, as many of you probably know, Measure #7 was soundly defeated in Tuesday’s general election. With all of the state’s precincts reporting, the measure was soundly defeated. Unofficial results from the secretary of state’s office shows Measure #7 was defeated with 147,066 No votes to 102,406 Yes votes – or 58.95 percent to 41.05 percent of the vote going to the No side.

The measure was soundly defeated in each of the state’s 53 counties except for two – Ward County and believe it or not, Sioux County, which is largely made up of the Standing Rock Indian Reservation. It lost in three of the state’s four most populous counties – Burleigh, Cass and Grand Forks as well.

Here are my takeaways from the defeat of Measure #7:

1. Clearly, this became the “Walmart issue,” I think, in a lot of voters minds – and that unfortunately, spelled the death knell of this measure. With many people trumpeting the fact that Walmart had invested some $7 million for a YES vote – it had a lot of folks screaming that Walmart was trying to buy votes, which of course they were not. As we all know, there are a lot of people out there who love to bash Walmart to people like their families and friends – but those same people are the first ones through the doors of Sam’s Club and Walmart to shop. Walmart, of course, is the parent company of Sam’s Club. I’m actually amazed at the number of people who are totally ignorant of the fact that Walmart indeed owns Sam’s Club.
2. With the exception of two of the state’s counties, the measure lost statewide. How did that happen? For one thing, I think the length of the ballot was a contributing factor. When a ballot gets long like this one did, a lot of people have the tendency of a “Vote no from top to bottom” mentality, no matter the issue or how important it is. History bears this out here in North Dakota. The only measure that passed was the prohibition on levying sales taxes on home/land sales.
3. Clearly, the proponents of the measure were the underdogs. I think a lot of this centers around the fact that the proponents of the measure, despite outspending the opponents 3:1, just weren’t prepared for the strong, organized and most importantly, unified opposition of the opponents. The opponents were all on the same page from the outset. The pharmacists were prepared to fight and they did so.
4. Unfortunately, this whole thing turned into a lot of personal attacks and mudslinging. The opponents shouted down anyone who dared to present the case in favor of changing the law. Having personally worked on this issue for some five years now, I am convinced there are a good number of pharmacists in North Dakota who would like to see the law change, but none of them were vocal with their support during the campaign. I suspect for some reason or another, those folks didn’t dare buck the forces that were driving the Vote No bus, and they were obviously silenced into absolute obedience by persons unknown.
5. I think this whole thing clearly shows that people in both the rural and urban areas of the state bought into the scare tactics of the opposition. The opposition trumpeted a number that seventy some pharmacies could close, and all the other stuff which they wound up successfully selling to the people.

Conclusions:

1. It appears that the pharmacy ownership law, whether we like it or not, is here to stay. The pharmacists are simply too unified on this thing to let it go without a fight, and they clearly proved it tonight
2. Both legislative attempts and now a statewide ballot measure on the subject have failed. Where do the proponents go from here? I just don’t see anyone touching this issue for a long time. It’s simply too much of a political hot potato for most anyone to handle. It could be a couple of years – it could be 30 years. Nobody really knows for sure.
3. The people of North Dakota clearly don’t seem to care that this high level of government protection is unwarranted. All they care about is keeping their local drug store open. The opponents successfully used every scare tactic in the book and it worked for them. The people seem content with keeping this “Keep Out” wall surrounding our state. That’s unfortunate.
4. Walmart clearly invested a lot of money into the Measure #7 campaign. Walmart was also directly involved in the ill-fated initiated measure effort from 2009-10 on the pharmacy ownership law. For the the second time in a row, they are walking away with empty pockets. Walmart hates that. Even the nation’s largest retailer has its limits. In my humble opinion, I doubt Walmart will be back to try again for a heck of a long time.
5. While I applaud Walmart for being completely forthright with public information and being transparent about things such as their financial contributions were concerned; it unfortunately wound up backfiring on them big time. As Rob pointed out, North Dakotans still have this streak of populism, which includes a serious mistrust of corporations, despite how unfounded those fears may be. In hindsight, perhaps Walmart was too much out in front and transparent about this thing, which resulted in this issue becoming the “Walmart issue” in many people’s minds. It is my conclusion that this is pretty much what sunk it for the pro side. I thought being forthright and truthful were good things, and I applaud Walmart for taking ownership of the issue, although it wound up being a poor campaign strategy, with the end result being what it was.

Sidebar:

1. I think it’s pretty clear now that this issue is not likely going to change, unless a bold retailer has the guts to challenge the law in federal court. I’m certainly not a lawyer, but it seems to me that a case could be made that the pharmacy ownership law is unconstitutionally restrictive. A restraint of free interstate trade, perhaps? I know this has been before the North Dakota Supreme Court in the Snyder Drug case as well as before the U.S. Supreme Court – both of which upheld the constitutionality of the law. However, that was some forty years ago. Given a new set of plaintiffs, evidence, testimony, and all that; there’s no guarantee that the law would be upheld today.
2. The pharmacists successfully argued that their higher standard of practice would be somehow violated by bringing in more competition into their profession. That seemed to resonate with a lot of people.
3. There has to be a way to get the rank-and-file members of the pharmacy profession in North Dakota on the side of being in favor of changing the law. How that’s going to happen is beyond me. Could there be a possibility of dangling a carrot in front of them – something to the effect of – if they don’t stand in the way of allowing the change in the law to take place that the proponents would make it worth their while? I wonder if something couldn’t be pursued like a low interest loan fund could be established by the Bank of North Dakota that would allow the young pharmacist who would like to open his or her own pharmacy could obtain the capital necessary to do so?

For me, I’m not sure if I want to take on this fight again. I think I’m pretty much through with this issue for now. It’s hard to believe that many of our fellow North Dakotans been working on this issue for five years already. This has been a long-fought journey that the proponents of changing the pharmacy ownership law have been on. The people have spoken and we must respect that.