South Dakota’s Governor Succeeds in Blocking Voter-Approved Marijuana Legalization

South Dakota’s voters achieved history by approving two ballot initiatives that legalized recreational and medicinal marijuana use last November. Amendment A was particularly successful because it won by eight points in an otherwise conservative and Republican state. The legal challenge by Gov. Kristi Noem was able to tie up Amendment A in lawsuit almost instantly. The South Dakota Supreme Court ruled last Wednesday that Amendment A violated the rule of “single subject” for constitutional amendments.

The court’s 4–1 decision does not affect Measure 26, which authorizes medical use of marijuana and passed with support from 70 percent of voters last November. The ruling does not affect Measure 26, which authorizes medical marijuana use. However, the legislature must implement Amendment A independently. If that happens, supporters of wider legalization will need to try it again next year.

The South Dakota Constitution Article XXIII, Section 1, states that a proposed amendment “may amend one or several articles and similar subject matter in another articles as necessary for the purposes of the amendment,” but it “never may include more than one subject.” The South Dakota Supreme Court explains that this rule is intended to prevent the “pernicious practice” of merging unrelated provisions into one amendment in order to pass a provision that would otherwise be rejected if they were submitted individually.

Court accepted Amendment A’s major parts, which included the regulation, licensing and taxation for cannabis production, dealt with one topic: legalization of recreational cannabis for those aged 21 and older. It held, however that the provisions instructing legislators to allow medical marijuana use and industrial hemp cultivation addressed two other subjects.

Because all the provisions related to the same plant, the backers claimed that the initiative was in compliance with the single-subject rule. But the court noted that  the medical marijuana provision, unlike the recreational marijuana provisions, did not impose a minimum consumption age. Justices pointed out, however, that Amendment A defines hemp as a nonpsychoactive form of marijuana with minimal THC. They said treating “the regulation of products with a shared biological origin as having the same object or purpose would extend Amendment A into abstraction and obviate the purpose for which Article XXIII, § 1 was adopted.”

The court ruled that allowing the legalization of medical and hemp combined with wider legalization was an inequitable move. It forced those who supported one or more narrower changes to allow recreational marijuana use. In the light of November 2012’s elections, this concern appears to be largely misplaced, because voters can vote for Amendment A but also support Measure 26, which is the medical marijuana initiative.

Although the court ruled that Amendment A had violated the single subject rule, it didn’t address the issue of whether the initiative was so broad that it amounted “revision” to the state constitution. That requires a constitutional convention, not a popular election. Sixth Judicial Circuit Judge Christina Klinger declared Amendment A ineligible for this reason.

The South Dakota Supreme Court disagreed with Klinger’s conclusion that the original plaintiffs in the November 20 lawsuit challenging Amendment A—Pennington County Sheriff Kevin Thom and Col. Rick Miller, superintendent of the South Dakota Highway Patrol—had standing to sue. However, the court found that Noem who had “ratified the commencement” of the suit via an executive or she issued January 8 did have standing. The lawsuit was successful because of Noem’s approval.

Noem seemed more driven by anti-pot prejudices than her dedication to upholding state constitution amendments. She stated, “I personally oppose these measures and believe that they’re not the right choice for South Dakota’s communities.” We need to find ways to support our families and I feel we are taking a backward step in this effort. Also, I am disappointed in the fact that state governments will grow by millions of dollar to fund public safety and set up this new regulatory structure.

The willingness of state legislators to accept the marijuana policy as it is was preferred by voters made them more open to accepting their views. In my opinion, [legalization is] inevitable because we’ve already seen the support from the public,” Senate Majority Leader Gary Cammack said after Klinger’s decision. Greg Jamison, another Republican senator, said, “I did not vote for recreational cannabis, but I trusted my constituents.” It is rare that we have the chance to make a law, but it’s impossible for us to know how our constituents feel about it. We know what our constituents think.

In response to such comments from members of her own party, Noem threatened to veto any legalization bill the legislature might decide to pass. Noem suggested that she may be open to the possibility of decriminalizing low level marijuana possession. Current law makes possession of two to three ounces of marijuana a misdemeanor that can lead to up-to a year imprisonment and a maximum fine in excess $2,000

Amendment A backers criticised the South Dakota Supreme Court for its decision. They claimed that there was no evidence voters were unclear about the outcome of the initiative. Matthew Schweich from South Dakotans to Better Marijuana Laws stated, “The court has rejected commonsense and instead used an absurd legal theory in order to overturn law passed by over 225,000 South Dakota voters. It was not based upon any logical or evidentiary backing.” Marijuana Moment. “The ruling states that Amendment A comprised three subjects—recreational marijuana, medical marijuana, and hemp legalization—and that South Dakotans could not tell what they were voting on when voting for Amendment A. This is a legally ambiguous ruling that assumes that South Dakotans are intellectually incapable of comprehending the initiative.

Schweich’s group is currently collecting signatures to support a ballot initiative in 2022 that would legalize recreational cannabis. The state legislature will be considering two legalization bills in the next session. However, their fates are uncertain due to Noem’s opposition.

Noem: “South Dakota has a Constitution and a rule of law that matters, which is why today’s Amendment A decision is important.” saidAfter last week’s ruling, you can follow us on Twitter. “Today’s ruling does not impact my Administration’s implementation the medical marijuana program that voters approved for 2020. This program was officially launched in early January, and cards for the first recipients have been sent out.