South Dakota's Governor Blocks Voters on Legal Pot

Though voters simultaneously approved initiatives aimed at legalizing both recreational and medical use of marijuana, Amendment A got quickly tied up in court.

South Dakota voters made history in 2020 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.

Thanks to a legal challenge backed by Republican Gov. Kristi Noem, however, Amendment A was immediately tied up in litigation. Last fall 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 did not affect Measure 26, which authorizes medical use of marijuana. But unless the state legislature independently implements the policy embodied in Amendment A, the ruling means supporters of recreational legalization will have to try again in 2022 with an initiative that addresses the legal objections.

The court accepted that most of Amendment A 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 court concluded that the law enforcement officials who originally challenged Amendment A did not have standing to sue. But it said Noem, who "ratified the commencement of this lawsuit" via an executive order, 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. 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," South Dakota Senate Majority Leader Gary Cammack (R–Butte) said in February 2021. "I didn't vote for recreational marijuana, but my constituents did," added state Rep. Greg Jamison (R–Lincoln). "Rarely do we get a chance to enact a law and….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 pass. She later suggested she might be open to decriminalizing low-level marijuana possession.

Noem, who is up for reelection this year, seemed unfazed by an October poll indicating that most voters disapproved of her interference with legalization. In January, her spokesman said Amendment A's backers should reimburse the state for the legal costs it incurred to overturn the initiative.