South Dakota court rejects cannabis initiative on narrow constitutional grounds

A South Dakota judge has ruled that a ballot initiative to legalize marijuana does not meet the requirements for being on this November’s ballot. The ruling was based on its lack of language regarding sales tax, which would be required by state law if it were passed into law.

South Dakota court rejects cannabis initiative on narrow constitutional grounds



The South Dakota Supreme Court has ruled in favor of the state’s anti-pot governor, declaring that a statewide cannabis initiative supported by voters last year violates the state constitution. The plan, Amendment A, adopted by vote in November 2020, breaches a restricted “single-subject” criterion that applies to constitutional amendments, the court concluded 4-1 last week.

The judgment puts adult-use marijuana in South Dakota in jeopardy for the time being, but it does not modify existing rules that allow medicinal marijuana and industrial hemp. The amendment, as a whole, included those two sectors, as well as adult-use marijuana.

Republican Gov. Kristi Noem, who has called the amendment “the wrong option for South Dakota’s towns,” filed a court challenge shortly after it was approved by the state’s voters last year.

Hemp has no impact.

While the court’s decision is a setback for adult-use marijuana, it has no bearing on Measure 26, which permits medicinal marijuana separately and was approved by 70 percent of voters last November. It also has no bearing on South Dakota’s hemp program, which began last year and was approved by the United States Department of Agriculture (USDA).

The court decided that the majority of Amendment A, including provisions dealing with cannabis manufacturing and distribution licensing, regulation, and taxes, is limited to the legalization of recreational marijuana. The courts, however, determined that clauses directing the legislature to approve medicinal marijuana and industrial hemp growing addressed different matters, therefore breaching the state constitution.

The court also stated that some voters may have accidentally voted in favor of recreational marijuana when they voted on the three-part Amendment last year.

“It’s a legal stretch,” Matthew Schweich, campaign director for South Dakotans for Better Marijuana Laws, said. “It rests on the contemptuous notion that South Dakota voters were cognitively incapable of comprehending the initiative.”

Critics say the court “rejected common sense” by relying on the constitution’s single-subject provision to overturn a law passed by the state’s voters.

The “single-subject” criterion was developed, according to the court, to prevent clauses on completely distinct topics from being inserted into proposed revisions. According to the court, the rule is meant to “avoid the ‘pernicious practice’ of merging unrelated provisions in one amendment to secure approval of a provision that would otherwise fail if offered separately.”

‘Biological origins shared’

Because all of Amendment A’s sections deal with the same plant species, supporters claim it conforms with the single-subject rule.

The judges disagreed, saying that considering “the regulation of goods with a common biological origin as having the same goal or purpose” would “stretch Amendment A into abstraction and negate the objective” of the single-subject rule.

The Supreme Court verdict implies that advocates of Amendment A will have to rewrite the initiative to answer the court’s legal issues and resubmit it next year unless the state government adopts it independently.

Known for flip-flopping

Noem has a history of changing his mind towards marijuana legalization. She vetoed a measure that would have legalized industrial hemp cultivation in the state in 2019, claiming that it would pose issues that law enforcement would be unable to address and implying that it would be a first step toward legalizing recreational marijuana in the future. She finally backed down and signed the hemp law.

She’s changed her mind regarding medicinal marijuana since then, backing a measure earlier this year that would legalize possession of small quantities of marijuana by licensed patients. That came following her unsuccessful effort to utilize the South Dakota legislature to prevent the state’s medicinal marijuana bill from taking effect on July 1st.

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