Judge Tosses Out South Dakota Ballot Initiative Legalizing Recreational Marijuana

Voters approved it, but the governor resisted. A court came down on her side.

A South Dakota judge has overruled the will of the voters on behalf of Republican Gov. Kristi Noem and has tossed out a ballot initiative legalizing marijuana use.

In November, South Dakota citizens took the unusual step of legalizing both recreational and medical use of marijuana in two initiatives on the same ballot. Constitutional Amendment A (which passed with 54 percent of the vote) allowed for recreational use and created a licensing system to establish, manage, and tax legal commerce.

Some law enforcement leaders and Noem opposed legalization, and rather than accepting the will of the voters, went to court to try to block it. Noem even paid the legal fees for the challenge from a highway patrol superintendent and a sheriff, meaning that taxpayers were paying to both defend (via the state's attorney general's office) and attack the constitutional amendment.

On Monday, South Dakota 6th Circuit Judge Christina Klinger ruled that Constitutional Amendment A did not follow the proper state processes for approval and is therefore void. (The Argus Leader has embedded the ruling here.)

There were two constitutional flaws, Klinger determined. First, by attempting to both legalize marijuana and establish licensing and regulatory processes, the ballot initiative violated rules that require an amendment focus only on a single subject. It may appear that regulating marijuana could be seen reasonably as part of that single subject, but Klinger ruled otherwise, concluding that the inclusion of hemp is not "germane" (her word) to the subject of legalizing marijuana, that setting civil penalties for violations of regulations are not germane to legalization, and that creation of professional marijuana licensing systems and tax systems are also not germane to legalization.

This may seem like a bit of a reach, since she explains that the legal test here is whether the parts of an amendment are "governing a process so related and interdependent as to constitute a single scheme." A reasonable person might well conclude that the regulatory changes are inherently relevant to the process of making a currently illegal drug legal, though this particular libertarian can't help but fantasize about the solution here being to simply make marijuana legal and not regulate it in any way, shape, or form.

But even if she had determined that all parts of Constitutional Amendment A constituted a single scheme, she found an additional flaw: She ruled that the initiative didn't just amend a part of the state's constitution; it revised the constitution by changing the structure of the state's government by taking power away from the legislature to determine marijuana policy. Because of those changes, Klinger ruled that Amendment A needed to pass through a constitutional convention, which must be approved by three-fourths of state lawmakers and then approved by the voters.

Sponsors of the ballot initiative told Marijuana Moment they were going to appeal Klinger's ruling to a higher court. Noem, in a prepared statement, said, "Today's decision protects and safeguards our constitution."

The ruling does not affect Measure 26, the ballot initiative allowing for medical marijuana use. That will still become law starting in July.

It may well be that the legalizers will get what they want over time. Marijuana Moment notes that 16 Republicans among state lawmakers have formed a "cannabis caucus" to work on marijuana regulations. It does not appear to be the case that members of one party—or even the majority of a single party—are standing in the way. Note that representatives of the executive branch are complaining that the amendment takes power away from lawmakers, but the lawmakers themselves are not responsible for the legal resistance.

In any event, though every single state-level drug legalization initiative on the ballot passed in November, Noem is a reminder that authority figures still resist, going so far as to insist that they're actually protecting democracy while maintaining systems that punish citizens for really stupid reasons.

But hey, if any state could consider simply legalizing marijuana and then not bothering to regulate it, it could be South Dakota. Just putting that out there.