South Dakota Supreme Court Squelches Legalization Initiative

Cannabis advocates in South Dakota saw a real victory in last year’s elections, as voters approved an amendment to the state constitution legalizing adult use. But it was immediately met with legal challenge. And now the state’s top court has definitively squelched it.

The South Dakota Supreme Court on Nov. 24 ruled that the process by which the amendment passed was itself unconstitutional. It was clear, however, that the real motivations behind the legal challenge were related to cultural conservatism and the cannabis stigma.

Legalism Against Legalization 

Understanding the stratagem used here requires getting into the legal weeds a little. In the 2020 election, voters in the Mount Rushmore State passed both a ballot measure and constitutional amendment. 

The first, Initiated Measure 26, sought to legalize medical marijuana for qualifying patients. The second, Constitutional Amendment A, would have legalized cannabis for all state residents 21 years or older. Personal possession was set at one ounce, with provisions for retail sales to be taxed at 15% and regulated by the state Department of Revenue. Amendment A also required the Legislature to pass laws regulating medical marijuana and the sale of hemp products. 

Measure 26 passed with 70% of the vote, while Amendment A received 54%—despite a vigorous campaign against both by the state’s political and medical establishments.

Immediately following the election, a case challenging Amendment A was brought by two law enforcement figures—state Highway Patrol superintendent Rick Miller and Pennington County Sheriff Kevin Thom. The case argued that the means by which Amendment A was approved violated the requirements for amendments to the South Dakota constitution. 

There was no doubt that the pair brought the suit as proxies for Gov. Kristi Noem, who had vocally opposed Amendment A. Noem stated explicitly in a January 2021 executive order that she opted to “delegate” Miller to bring the litigation on her “behalf.”

 In February, a state circuit court in Pierre struck down the amendment.  

The amendment was found to have violated the “single subject” requirement of Article 23, section 1 of the state constitution, because it dealt with three “subjects”—adult-use cannabis, medical marijuana, and hemp. Ironically, that provision of the constitution was itself approved by the voters in 2018’s Amendment Z, intended to prevent voters from being confused or conflicted by multiple provisions to the same amendment.

The ruling further found that the amendment violated Article 23, section 2, requiring a constitutional convention for “revisions” of the charter. Judge Christina Klinger found that the amendment was significant enough for this provision to kick in, writing: “Amendment A is a revision as it has far-reaching effects on the basic nature of South Dakota’s governmental system.”

The circuit court ruling has now been upheld by the state Supreme Court in a 4-1 decision—although, as the Sioux Falls Argus Leader notes, the high court only ruled on the “single subject” argument. It did not address the argument that the amendment should have been approved by a constitutional convention.

“It is clear that Amendment A contains provisions embracing at least three separate subjects, each with distinct objects or purposes,” Chief Justice Steven Jensen wrote in the majority opinion.

Upon issuance of the high court ruling, Gov. Noem tweeted: “South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision on Amendment A is about. We do things right–and how we do things matters just as much as what we are doing. We are still governed by the rule of law.”

The Fight Goes On

While the decision nullifies Amendment A, the ballot measure mandating a medical marijuana program is not affected—as Noem made clear in a tweet. Noem campaigned against both Amendment A and Measure 26, but now says she is OK with medical marijuana assuming it is “approved by the FDA”—something not likely to happen soon, needless to say. Despite this supposed support, she’s attempted to bottleneck the medical marijuana program with harshly restrictive regulations; the matter is now being contended between her office and the Legislature.

Matthew Schweich, campaign director for South Dakotans for Better Marijuana Laws, characterized the high court ruling as “extremely flawed,” and based on “a disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative.”

“The court has rejected common sense and instead used a far-fetched legal theory to overturn a law passed by over 225,000 South Dakota voters based on no logical or evidentiary support,” Schweich said in a statement quoted by the Associated Press.

This is not the end of legalization efforts in South Dakota. Advocates are now attempting to bring adult-use cannabis back to voters next year through a ballot measure that would instruct the Legislature to legalize it (bypassing the constitutional dilemmas). A signature-gathering campaign for the new ballot initiative was launched in October, after the Secretary of State approved the text for circulation. 

And state lawmakers are already considering passage of a legalization measure in the upcoming legislative session. The Adult-Use Marijuana Study Subcommittee, which was established to examine the question in June, voted in October to recommend a bill allowing those over 21 to purchase up to an ounce—essentially the same provisions that were in Amendment A.