Marijuana Ballot Initiatives

Judge Tosses Out South Dakota Ballot Initiative Legalizing Recreational Marijuana

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

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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.

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  3. Still would.

    1. Yes, I was thinking the same thing, though afterwards, I would force her to inhale from a big, fat doobie.

      1. Hot box, then hotbox.

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      2. Hey, now! No initiation of force or even hinting of it!

        We use the consensual charisma of the joy-stick to get the legalization of the blunt-stick.

        With that caveat, yes, would with loud affirmations of consent!:)

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  4. 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.

    Get used to that. Washington has passed about a dozen anti-tax initiatives over the last couple of decades and almost all of them have been tossed out because they magically did not adhere to the vague rules of semantic procedures laid out by state law.

    When the state wants something different than the people, the state will almost always win.

    1. The state does not always win. I remember in California when voters passed proposition 13 in 1978 to roll back real estate taxes to 1975 levels and restrict taxes to 1 percent of value. I don’t know all the details but remember this victory of the people.

    2. The state of Washington’s constitution forbids an income tax so they implemented a “payroll” tax and despite the fact that the tax is placed on income, the WA Supreme Court ruled that it wasn’t an income tax.

      When WA voters approved a measure to force all tax increases to be placed before voters the SC ruled that it was unconstitutional because it would limit funding for schools and the WA constitution made education the state’s primary function.

    3. WHY DO YOU ALL KEEP VOTING THE SAME PEOPLE / MINDSET INTO OFFICE TIME AND TIME AGAIN? ELECTIONS HAVE CONSEQUENCES.

  5. Too bad, I was impressed with Noem’s handling of the covid bug, as she acknowledged she had no authority to call for a lockdown.

    But now she has the authority to veto shit like this?

    1. Well, a judge had the authority to override it. Noem didn’t veto anything.

      1. She was still on the side of those doing the overriding.

        1. Yes, that’s true. But that’s not particularly unusual.

          1. I was supporting her because she said that she trusted South Dakotans to do the right thing with respect to COVID. Obviously, her trust does not extend to the right to choose what substances to put into your body. This is a big disappointment.

            1. WHY DO YOU ALL KEEP VOTING THE SAME PEOPLE / MINDSET INTO OFFICE TIME AND TIME AGAIN? ELECTIONS HAVE CONSEQUENCES.

              1. When faced with the COVID problem, Noem chose individual liberty over shutdowns and even stated so. That made her different from the vast majority of other governors. When she chose to oppose the legalization of pot, she backtracked. We’ll see what she does in the future.

        2. And she brought the legal action to let the judge make the ruling. Quibbling over who is more of a bad guy, Noem or the judge, is stupid .

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      2. To quote Noem when she nominated the judge just two years ago;
        “I am confident Christina is committed to equal justice under the law,” said Noem. “Her background and experience have prepared her well for this position, and I know she will uphold the law.”

        No, I’m sure just because she refers to the Judge as Christina doesn’t mean they’re at all chummy.

    2. “Constitutional Amendment A did not follow the proper state processes for approval and is therefore void.”

      Constitutional Amendment processes aren’t up for vote.

      1. But it is subject to interpretation by judges and governors.

    3. She may not have the authority, but I’d sure consent to a personal lockdown and wear a zentai mask for her. Then we could rub each other down with sanitizer and after COVID-19 testing, have social distancing of 6 microns or less! Yowsah!

  6. 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.

    Serious question: Is there *anything* that is legal yet not regulated in any way, shape, or form?

    1. The Reason comment section?

      1. Not if Chipper had his druthers.

      2. C’mon, man, it’s “commentariat”

    2. Poor naïve Scott does he think that legalization in the states is due to a sudden outbreak of libertarianism? Does he take the “social justice“ nonsense seriously?

      No. What is going on is each state trying to create its own state sponsored cartel in which politicians and their cronies get to reap the profits and suppress competition, including competition from people growing their own plants, which will remain illegal in New Jersey notwithstanding the constitutional amendment that supposedly legalized marijuana.

      1. Which is why even though Michigan’s referendum wasn’t perfect, I supported it, because we can grow our own.

      2. I think DC ended up (accidentally) with the best that can be hoped for. Legalization, but no (overt) commercial sales, so the state can’t get its crony on.

  7. Eh… I guess I can forgive on grounds of maintaining the state constitution to the letter, which seems to be a rarity with other states. Hopefully this just means the stoners gotta be more careful on the next attempt.

    1. Yes. As much as this is a disappointment on the grounds of personal freedom, I’m willing to let this play out. The wheels might move slowly, but at least they are moving. And I guess it’s a good sign that there was no overt moral posturing in the challenge? We’ll still be getting medical, and I’m pretty sure I’ll catch Glaucoma before July… (that’s contagious, right?)

  8. Nope we learned that courts are infallible when it comes to elections so of course this must be true for pot.

  9. Well that is too bad.
    I imagine it would be difficult to pass a referendum where the two subjects of “should marijuana be legal?” and “if yes, then how should it be regulated?” must be decided by separate votes. Because the former one can so easily be demagogued – OMG WE’RE GOING TO HAVE DOPE FIENDS SELLING POT TO CHILDREN!!! – and the point of the latter question is to avoid the demagoguery present in just trying to have a straight up-or-down vote on marijuana legalization.

  10. Well, that confirms it. South Dakota is worse for liberty than Silicon Valley, and Noem is worse than AOC.

    Isn’t that how this works, Reason?

    1. They can’t answer. Reason is still in shock that the most liberaltarian president since Jimmy Carter has more tariffs than Trump.

  11. Disappointing. I thought she was cool.

    1. DeSantis is now the clear pound for pound champ

      1. Yeah, I think he takes the top governor spot now.

        1. Greg Abbott hasn’t yet done anything that made me want to throw paint at his car

          1. Oh yeah, there are a few other good ones. Haven’t follwed what Abbot does, but I like how Desantis is actually listening to a diversity of scientific experts and making sensible calls, not deciding that there is one expert and everyone who disagrees is the wrong kind of person, which seems to be what most politicians have done.

        2. The problem for DeSantis is the RNC. Until DeSantis has a spinectomy, the RNC will work to undermine him.

  12. “A South Dakota judge has overruled the will of the voters …”

    You mean, just like the United States Supreme Court “overruled the will of voters” in various states and mandated same-sex marriage?

    Come on Scott. Are you now a Robert Bork disciple? If the constitution was violated, then it was violated. Spare us the “will of the voters“ nonsense Unless you are also willing to apply it in cases involving legislation you oppose.

    1. From a quick skim, it doesn’t seem obvious that the law is as the judge says it is. The state Constitution reads as if it allows for initiatives, but the judge wants to tie up those initiatives in abstruse reasoning which doesn’t seem directly related to the text.

      1. Well in that case say that the judge wrote a bad decision on the merits that warrants being reversed on appeal. That’s a more persuasive point.

    2. As a slogan, “the will of the voters” means little.

      But if it means the voters exercising authority, which they specifically possess by virtue of their own organic law, to support constitutional amendments, then yes, the will of the voters does mean something.

  13. I’m open to correction from anyone who knows more about South Dakota constitutional law, but for now I’d say:

    -This proposal seems to fit the single-subject rule

    and

    -if it fits the single-subject rule, I don’t see how it could qualify as a wholesale “revision” of the state constitution.

  14. I’m not sure whether or not this initiative was a good idea but I am pretty sure that the judge’s opinion was not.

    Both bases of the decision are at best questionable. The claim that this initiative covered two different subjects is more than just “a bit” of a reach. Had the initiative authors tried to do what the judge apparently thinks was required, the initiative would have been thrown out as unworkable.

    The second claim that this constitutes a structural change to the state government because they took some power away from the Legislature is laughable. That reasoning would prohibit any initiative. Yet the state constitution clearly envisions initiatives as an allowable way to bypass the Legislature.

    Again, no opinion on whether the governor is right – but I predict she will need better lawyers to defend this decision when it is appealed.

    1. Not sure the judge made the right call here, IANASDL. But it would suck to have regulations stuck in the middle of the constitution where it’s tough to fix them.

      Best outcome would be to legalize by amendment and leave out the regs. IF regulations are added, they can be removed/changed more easily if they’re normal legislation.

      1. And Kristi Noem? Would, repeatedly and with great enthusiasm.

      2. Oh, it does suck to have regulations stuck in the middle of the constitution. California is crippled by such initiative-driven regulations and Ohio is rapidly following suit (though with different regulations). But that’s a structural problem with the initiative process. That’s not what the judge claimed or, as near as I can tell, what the SD constitution requires.

        The problem is that if you leave out the regulations, the initiative will never pass because voters will reasonably fear that legalization without regulation would lead to chaos. They approved the legalization on the condition of the regulation.

        The other thing that voters could reasonably fear is that if they “delegate” the regulations to the same legislature that refused to pass the law they want, those legislators would sabotage the process with regulations that gut the right. I want to say that it was the Colorado legislature that did just that a few years ago but I could be wrong about the state. Regardless, it’s entirely reasonable to see that abuse in one state and be worried that your own legislators would do the same.

  15. >>”governing a process so related and interdependent as to constitute a single scheme.”

    always is when the government wants it to be

  16. With friends like this new form of Republicans who needs enemies!

  17. This governor is hot, but not dope.

    I am unclear on the point of a constitutional referendum that does not take power away from the legislature in some way.

  18. People are going to start to think Republicans support the use of process to disenfranchise voters.

  19. “…it revised the constitution by changing the structure of the state’s government by taking power away from the legislature to determine… policy”

    Isn’t that the whole point of ballot initiatives?

  20. Initiatives are all the rage in states where powerful moneyed interests can’t get the peoples’ elected representatives to do what they want done. Typically the initiative is sumptuously funded, mostly with out-state money, and professionally organized, by or with the assistance of out-state consulting firms. The initiative’s opponents are often poorly funded and organized, and have a snowball in heck’s chance of getting out enough votes to win.

    1. Let the special interests put their ideas right before the voters – cut out the legislative middleman. Of course, it might cut down on the opportunities for bribes.

    2. This was pushed by Big Marijuana, not the people. Then they got the potheads to show up and vote single-issue.

      1. Please take the time to educate yourself on cannabis and stop believing the lies that you have been told about it all your life.
        Cannabis was demonized by politicians in the early 1900s. Sound scientific research has demonstrated and continues to demonstrate that cannabis has several medical benefits, is safer than narcotics and alcohol, and is not the “gateway drug” you have been told it is. Your own body has an endocannabinoid system and makes cannabinoids similar to those that are found also in cannabis hence why cannabis is so beneficial for treating medical conditions found in humans.

  21. Seems like any reasonably competent attorney could have pointed out the flaw in the ballot initiative and changed it to just make marijuana legal and then let the legislature do the regulatory bits.

    Maybe he was baked when they wrote and presented it?

  22. Republicans: always standing athwart history whining stop.

  23. I’d be more mad if she wasn’t so pretty.

  24. An unjust law is NO law at all.

  25. How did the judge even reach the merits here? What injury had the governor suffered? The only injury i see the judge claiming is one to legislators, who weren’t a party to the suit.

  26. Is this Judge available for gigs? We could use her in Pennsylvania to explain to the dopes in the Legislature and the dopes on the PA Supreme Court how much of a cluster-fuck Act 77 of 2019 was in relation to the PA Constitution.

  27. The idea that setting up regulatory processes is not germane to the subject of legalizing marijuana is kind of horseshit. Also the idea 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 is once again horseshit.

    I’m curious if this was about another product if this Judge would still rule that regulatory processes are not germane to the product they were created to regulate.

    I hope another initiative is passed by the voters without regulatory processes attached. Just because I want see the Governor complain about how the voters legalized marijuana without any “a regulation! What about the children!”

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