South Dakota was one of five states to pass marijuana legislation in November 2020. It was the first in the nation to legalize recreational and medical cannabis simultaneously. But now, that decision is being challenged.

The laws that passed

The two new laws came after the approval of Amendment A and Measure 26. Legalization would officially take effect on July 21st, 2021. Measure 26 allowed doctors to prescribe marijuana to South Dakotans suffering from debilitating medical conditions. Amendment A, meanwhile, allowed for the legalization, regulation, and taxation of marijuana. It also gave the legislature the green light to pass laws involving hemp and affecting access to medical marijuana. The Amendment also mandates that the legislature sort out a system for regulation of the cultivation, processing, and sale of hemp by 2022, along with a system for the licensing and regulation of marijuana businesses. The law, which passed by a 54% margin, allows adults 21 and older to possess or distribute up to one ounce of cannabis, as well as cultivate up to three of their own marijuana plants. Medical marijuana had 70% support in the ballot box.

The governor stands in opposition

South Dakota’s Governor, who won her office by a slimmer margin than marijuana did its legalization, is lashing out. She’s been not only speaking against voters’ decision to legalize marijuana and actively trying to undo that progress. In a statement, Governor Noem said she was firmly opposed to both Amendment A and Measure 26. The Governor says she believes legal cannabis is the wrong choice for the state. “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.” Governor Noem is now backing a lawsuit filed by two state law enforcement officials. The Sheriff of Pennington County, South Dakota Kevin Thom, and a Superintendent of the Highway Patrol, Colonel Rick Miller, hope to void ballots cast regarding Measure A (whether the vote was for or against the Measure) and scrap the incoming changes to the Constitution. The lawsuit alleges constitutional amendments cannot cover more than one issue, and that Amendment A covers multiple: not only the legalization and regulation of recreational marijuana but the regulation of medical cannabis and hemp as well. In a press release, Sheriff Thom wrote, “The South Dakota Constitution is the foundation for our government and any attempt to modify it should not be taken lightly. I respect the voice of the voters in South Dakota, however in this case I believe the process was flawed and done improperly, due to no fault of the voters.”

Voters vs Governor Noem

The group South Dakotans for Better Marijuana Laws is developing a legal strategy to fight back. Lawyers for the group are accusing Sheriff Thom, Colonel Miller, and Governor Noem of attempting to “overturn the free and fair expression of the voters’ will.” Governor Noem brought up the lawsuit during an annual address about the state’s budget. She says that because the lawsuit is moving forward, she’ll have to create options that include the possibility of both victory and defeat for the complaint. That is to say, one proposed budget will have to include regulatory costs applied to both medical and adult-use cannabis; the other will account of only medical cannabis, which is not being challenged in the lawsuit. “I want to be very clear,” the Governor said in her address, “we will not see any revenue from marijuana until at least April of 2022, though it could be even longer than that. And in the meantime, to comply with the pre-determined timeline, the Department of Revenue needs to work now. This funding would go toward staff, technology, consultants, and other costs.” The proposed budget allots $4,161,502 to achieve marijuana regulation by April 1st, 2022, the deadline outlined in the new law. Governor Noem says legalized marijuana will lead to greater public safety spending. That differs from the opinion of other experts. “There will also be several other collateral costs, like safety, training, and enforcement, among many others. On top of this, the Department of Health has specific needs related to the medical marijuana program,” Governor Noem added in her budget address. The Attorney General believes marijuana will bring in over $10 million in 2022 and another 30 million by 2024. The South Dakota Legislative Research Council, which factored in potential tourism, estimates that the passing of Amendment A will garner about $60 million in tax revenue by 2024 and nearly $250 million by the year 2030. Cannabis purchased in dispensaries will be taxed at 15%, and the profits will go to public schools and the general fund after expenses from the Revenue Department for the product’s regulation are paid off. This opposition from Noem is not new. In 2019, she vetoed a bill that would have made the cultivation of industrial hemp legal in South Dakota. A federal farm bill made hemp legal nationally the year before. South Dakota’s House of Representatives passed the hemp bill 58-8, but the Senate wasn’t able to rally the two-thirds support it would need to override the Governor’s veto. The Governor maintained that K-9 officer trained to alert their handlers when they sniff out marijuana would be thrown off by hemp. Her main, complaint, however, was that hemp cultivation would lead to use of medical and eventually recreational marijuana in South Dakota. She wasn’t wrong there. There’s also concern coming from law enforcement in Minnesota, which only has medical marijuana available. Recreational marijuana sales become officially legal July 1st in South Dakota, but adult-use remains illegal in every single one of its neighboring states. Mark Wasson of the West Central Tribune spoke with the Police Chief in Willmar, Minnesota, who expressed his dismay thusly: “The potential for drivers who have consumed marijuana to various impairment levels and then driving in Minnesota creates a safety risk, mainly due to the impact of marijuana on reaction time and impaired judgment on their driving.” The legalization in South Dakota does not protect South Dakota residents once they leave the state’s borders, and it does not allow for people to drive under the influence of marijuana. The campaign manager for Amendment A, meanwhile, believes its passing will reduce crime overall, freeing up police officers, court dates, and jail space for people committing more violent or impactful crimes.