High Hopes for South Dakota, State Lawmakers Attempt to Override People's Vote

Soft Secrets
11 Mar 2021

Going against the will of people is not cool.


South Dakota won the headlines last year when its voters favored adult-use and medical cannabis in the same elections. Other states usually take more gradual steps when they embrace cannabis on the ballots, from legalizing medical cannabis first then expanding with recreational. So basically, South Dakota did write history in the November elections. But has everything gone smooth since then? Not really.

The poll was pretty straightforward: A "yes" vote supported the constitutional amendment to legalize the adult use of cannabis and require the South Dakota State Legislature to secure laws providing for the use of medical marijuana and hemp sale by April 1, 2022. A "no" vote opposed all above mentioned.

The marijuana legalization initiative carried the name South Dakota Constitutional Amendment A on the ballot.

The outcome was favorable. Approximately 54% of voters in the state said "yes" for recreational use of cannabis, while almost 70% said "yes" for medical use of cannabis.

Was it too good to be true?

In the months following the election, South Dakotan lawmakers sought ways to override the people's vote.

It all started immediately after the November elections. A lawsuit was filed by Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller in Hughes County Circuit Court demanding Amendment A to be blocked.

Their suit contended that Amendment A required a revision of the state's constitution to be approved, rather than a single-subject amendment. 

In the constitution's defense, on February 8, 2021, Circuit Judge Christina Klinger declared that the measure is against the state's single-subject rule and must be considered as a revision of the constitution rather than an amendment. 

The orchestration of the court case was helped by Governor Kristi Noem, one of the primary opponents against cannabis legalization in the Upper Midwest state. While the court declared last year's South Dakota measure unconstitutional, Gov Noem remarked the decision "protects and safeguards our constitution." 

"I am confident that South Supreme Court, if asked to weigh in as well, will come to the same conclusion," she said in January. "I directed [petitioners] to commence the Amendment A litigation on my behalf." 

On Feb. 10, Gov. Noem proceeded to also approve a delay in the timetable for Initiated Measure 26 (IM26), which is the measure that regulates medical cannabis legalization. Initially set to become effective this July, it will now take more than that before South Dakotans can benefit from it. 

Of course, these developments angered marijuana activists from the Mount Rushmore state. "We are prepared to defend Amendment A against this lawsuit," said revolted representatives from South Dakotans for Better Marijuana Laws who back Amendment A. 

"Our opponents should accept defeat instead of trying to overturn the will of the people. Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters," they said.

a person holding a cannabis leaf in their palm
South Dakota's case would mark the first time a governor has tried to overturn a cannabis legalization measure passed by voters on the ballot.

Digging deeper into the legal aspects

Supposedly, Amendment A contains more than one subject, referring that this does not simply amend the constitution but, rather, revises it. According to opponents, there are five subjects, therefore it becomes a matter of dispute: legalizing marijuana, then also regulating, licensing, and taxing marijuana, then also licensing and regulating marijuana by political subdivisions, and also regulating medical marijuana, and also regulating hemp.

In their humble opinion, opponents evoked Article XXIII of the South Dakota Constitution, which points out that a constitutional amendment "may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject." 

While this course of action loses its base, it enters the annals of history as the first time a state's governor has facilitated a legal effort to overturn a marijuana legalization measure passed by voters, reportedly also using state money to fund court fees for the lawsuits.

After effects

If a higher court overturns Klinger's decision, July 1 should still mark the day it will for the first time be legal to carry a small possession of marijuana in South Dakota.

Reform groups have appealed to court for the ruling which effectively goes against the will of the majority of state voters.

Simultaneously, advocates have been working to reach an agreement with South Dakota's governor and lawmakers over the delayed timeline to implement the separate medical cannabis reform measure, i.e., IM 26.

Marijuana reform advocate groups New Approach South Dakota and South Dakotans for Better Marijuana Laws have already looked for a way to present an alternate plan that would gain some time although the effective date of the legalization measure has already been pushed back.

The two groups have also pressed efforts that patients are afforded an affirmative defense option they could use in court to have charges against them dropped. At the same time, they ask the formal medical cannabis registration system to get up and going. 

Gov Noem has, in the meantime, issued statements to defend her action to delay the Initiated Measure 26 (IM 26). 

"The plan would add a year of additional flexibility on the implementation timeline and create an interim committee to meet and recommend solutions before [the] next legislative session," her statement said.

“We are working diligently to get IM 26 implemented safely and correctly,” Gov Noem said.

“There is no doubt that IM 26 passed in South Dakota, and it is fully our intention to honor the will of the voters,” also said House Majority Leader Kent Peterson. “Based upon the experiences of other states, we know that it takes time to start implementing a safe and workable program. We will get the job done.”

As it appears, the Midwest is not boring at all. And it's also not boring in the Northwest. Where you have Idaho, which is yet another state that butchers into constitutions to oppose cannabis legislation.

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