South Dakota voters made history last November by simultaneously approving ballot initiatives aimed at legalizing recreational and medical use of marijuana. The success of the broader initiative, Amendment A, was especially striking because it prevailed by an eight-point margin in a state that is mostly Republican and largely conservative. But thanks to a legal challenge backed by Republican Gov. Kristi Noem, Amendment A was almost immediately tied up in litigation, and last Wednesday the South Dakota Supreme Court definitively overturned it, ruling that the measure violated the "single subject" rule for constitutional amendments.
The court's 4–1 decision does not affect Measure 26, which authorizes medical use of marijuana and passed with support from 70 percent of voters last November. But unless the state legislature independently implements the policy embodied in Amendment A, the ruling means supporters of broader legalization will have to try again next year with an initiative that addresses the court's legal objections.
Article XXIII, Section 1 of the South Dakota Constitution says "a proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment," but "no proposed amendment may embrace more than one subject." According to the South Dakota Supreme Court, that rule aims to "prevent the 'pernicious practice' of combining unrelated provisions in one amendment to ensure passage of a provision that might otherwise fail had the provisions been submitted separately."
The majority accepted that most of Amendment A, including the parts dealing with licensing, regulation, and taxation of cannabis production and distribution, addressed a single subject: the legalization of recreational marijuana for adults 21 or older. But it held that provisions instructing the legislature to authorize medical use of marijuana and cultivation of industrial hemp addressed two additional subjects.
The initiative's backers argued that it complied with the single-subject rule because all of its provisions dealt with the same species of plant. But the court notes that the medical marijuana provision, unlike the recreational marijuana provisions, did not impose a minimum consumption age. The justices also point out that Amendment A itself defines hemp, a nonpsychoactive variety of cannabis with a minimal amount of THC, as distinct from marijuana. They say treating "the regulation of products with a shared biological origin as having the same object or purpose would extend Amendment A into abstraction and obviate the purpose for which Article XXIII, § 1 was adopted."
In the court's view, combining the hemp and medical marijuana provisions with broader legalization improperly forced voters who favored one or both of the narrower changes to approve recreational use as well. That concern seems largely misplaced in the context of last November's election, since South Dakotans could vote against Amendment A while voting for Measure 26, the medical marijuana initiative, as many of them did.
Writing in dissent, Justice Scott Myren notes that "anti-logrolling measures such as a separate vote requirement are not intended to 'prohibit a single constitutional amendment from being complex or multi-faceted, or from containing a variety of specific prescriptions and proscriptions.'" In his view, "it is plain that the Amendment was intended to provide a comprehensive plan for all phases of legalization, regulation, use, production, and sale of marijuana and related substances."
Myren argues that "all of these propositions relate to marijuana or hemp and are 'incidental to and necessarily connected with the object' or purpose of providing a comprehensive plan for all phases of legalization, regulation, use, production, and sale of marijuana and related substances." And while the majority "concludes Amendment A represents precisely the type of logrolling Article XXIII, § 1 forbids," he says, it "makes no assertion that voters were misinformed about or confused by the Amendment."
Because the court concluded that Amendment A violated the single-subject rule, it did not address the question of whether the initiative's provisions were so sweeping that they amounted to a "revision" of the state constitution, which requires a constitutional convention rather than a popular vote. Myren thinks not, but Sixth Judicial Circuit Judge Christina Klinger ruled last February that Amendment A was invalid for that reason as well.
The South Dakota Supreme Court disagreed with Klinger's conclusion that the original plaintiffs in the November 20 lawsuit challenging Amendment A—Pennington County Sheriff Kevin Thom and Col. Rick Miller, superintendent of the South Dakota Highway Patrol—had standing to sue. But the court said Noem, who "ratified the commencement of this lawsuit" via an executive order she issued on January 8, did have standing as governor. Noem's blessing therefore was crucial to the lawsuit's success.
Noem's determination to block Amendment A seemed to be driven more by her anti-pot prejudices than by her commitment to upholding the abstruse rules governing amendments to the state constitution. "I was personally opposed to these measures and firmly believe they're the wrong choice for South Dakota's communities," she said after voters approved the two marijuana initiatives. "We need to be finding ways to strengthen our families, and I think we're taking a step backward in that effort. I'm also very disappointed that we will be growing state government by millions of dollars in costs to public safety and to set up this new regulatory system."
State legislators proved more willing to set aside their personal views on marijuana in deference to the policy preferred by voters. "In my mind, [legalization is] inevitable because we've already seen the support from the public," Senate Majority Leader Gary Cammack said after Klinger's decision. "I didn't vote for recreational marijuana, but my constituents did," added Greg Jamison, another Republican senator. "Rarely do we get a chance to enact a law and not for sure know what our constituents think of that. Here we know."
In response to such comments from members of her own party, Noem threatened to veto any legalization bill the legislature might decide to pass. Noem later suggested she might be open to decriminalizing low-level marijuana possession. Possessing two ounces or less is currently a misdemeanor punishable by up to a year in jail and a maximum $2,000 fine.
Amendment A's backers criticized the South Dakota Supreme Court's decision, saying there was no evidence that voters were confused about what the initiative would do. "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," Matthew Schweich, campaign director at South Dakotans for Better Marijuana Laws, told Marijuana Moment. "The ruling states that Amendment A comprised three subjects—recreational marijuana, medical marijuana, and hemp legalization—and that South Dakotans could not tell what they were voting on when voting for Amendment A. It's a legal stretch and one that relies on the disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative."
Schweich's organization is collecting signatures for a 2022 ballot initiative that would legalize recreational marijuana. Meanwhile, the state legislature is expected to consider two legalization bills during its next session, although their fate is uncertain given Noem's opposition.
"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," Noem said on Twitter after last week's ruling. "Today's decision does not affect my Administration's implementation of the medical cannabis program voters approved in 2020. That program was launched earlier this month, and the first cards have already gone out to eligible individuals."