Voters chose to legalize both recreational and medicinal marijuana in the November 2020 election, making South Dakota the first state in the nation to do so. Yet the fight for access continues. Before the two laws passed, South Dakota state law labeled possession of a small amount of marijuana as a Class 1 misdemeanor, for which you can earn a year of a jail time and a $2,000 fine.

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Matthew Schweich is with South Dakotans for Better Marijuana Laws. The Marijuana Policy Project and New Approach PAC formed that group in 2019 and were successful the next year in getting voters to approve marijuana laws. But then the Governor of South Dakota started chipping away at their success. “She decided to wage a war against both of these initiatives,” said Schweich.

Legal Battles Over Recreational Cannabis

The marijuana ballot initiative that legalized recreational cannabis in South Dakota was called Amendment A. It legalized the right to for people over the age of 21 to possess and purchase up to one ounce of marijuana and cultivate up to six of their own plants at home.

It also designated the State Department of Revenue as the body that would issue marijuana licenses, and it created a 15% tax on marijuana sales. That money would go first to paying for the Department’s marijuana program itself, and the remaining profits would be divided equally between public schools and South Dakota’s General Fund.

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Amendment A passed with over 54% of the vote, with 34,783 more South Dakotans saying they want legal recreational cannabis than those who said they did not want it. For comparison, Governor Kristi Noem won with just 51% of the vote. But just a few weeks after the November election in which voters approved Amendment A, people operating at Governor Noem’s direction filed a lawsuit arguing Amendment A is too broad, and thus violates the state’s constitution.

“Essentially, they’re saying it was too wide a policy, that it violates the single subject rule that applies to initiative,” explained Schweich. “They’re also arguing it represents a fundamental change to South Dakota’s system of government, which would require a constitutional amendment, which is a preposterous argument.”

A Circuit Court ruled against Amendment A, but an appeal sent the decision to the South Dakota Supreme Court. So far, the Supreme Court hasn’t made a decision on the case, which means the cannabis program cannot move forward in the meantime. It was supposed to start up by July 1st of 2021.

Medical Cannabis in South Dakota

Measure 26 established a medical marijuana program applicable to South Dakotans with a debilitating medical condition diagnosed by a physician. Those with medical marijuana cards could possess up to three ounces of marijuana and could cultivate three plants at their home, or more if a physician prescribes it. It passed with nearly 70% of the vote.

Governor Noem launched a legislative effort to delay the implementation of Measure 26, trying to get a bill passed to undo what voters had chosen. That bill passed in the House but ultimately failed, so the state’s medical program is moving forward. Since then, Governor Noem has changed her tune and seems to be supporting medical marijuana.

On Facebook, she posted a video advocating for the policy, saying, “I want South Dakota to have the best, most patient-focused medical cannabis program in the country. I’ve heard from people who are hurting and are hopeful for relief. My team is 100% committed to starting this program as quickly and responsibly as possible for South Dakota.” The law’s confirmation offers limited protections for medical marijuana consumers. The problem there is, patient ID cards aren’t available yet.

Home Cultivation of Cannabis

There’s also been a fight over whether to strip the portions of Amendment A and Measure 26 that allow for limited home cultivation of marijuana.

Right now, that provision is still included in Measure 26, but lawmakers in a Medical Marijuana Study Subcommittee recommended language around home cultivation be rescinded. State representatives argue home-grown cannabis could be sold on the black market. “It doesn’t make sense,” said Schweich.

“What do you think the black market is right now? You think you’re creating the problem of people growing cannabis outside of a regulated system? No. It already exists.” South Dakotans for Better Marijuana Laws feels the fears over home cultivation are irrational, and believes having smaller plant count limits will keep illegal grow operations from thriving.

“Cannabis is going to be bought and sold whether it’s legal or not. You might as well tax it and use that revenue to do good things and reduce the need for future tax increases in other areas,” said Schweich.

The Will of the People

Governor Noem didn’t express concern that the new laws violated the state’s constitution until after they were passed. “She’s saying that she doesn’t care what the voters of South Dakota decided about this issue,” said Schweich, who argues marijuana legalization is more popular than the Governor herself.

The Governor’s lawsuits are paid for with taxpayer dollars. Schweich says the Governor is trampling on the will of the people. “If it was really all about this constitutional question, then she would have encouraged the legislature to pass the recreational law as a statute, and then we could move on. But she hasn’t done that. She has a personal vendetta against legalization, and she thinks that she can get away with getting away her constituents and spending their money to overturn a law that they passed.”

“Governor Noem has spent so much time presenting herself as a defender of personal freedom when it comes to the pandemic, but when it comes to cannabis, she does not believe in personal freedom,” said Schweich. “She wants the government to block people up. That is not freedom.”

The Loophole

Native American reservations are sovereign governments and are not subject to state laws, so even though legal marijuana is held up in South Dakota’s courts, there is already a dispensary open. The Flandreau Santee Sioux set up a medical dispensary in an old police station on their reservation.

The Native Nationals Cannabis Dispensary is owned and operated by the tribe in Flandreau, about forty minutes from Sioux Falls. That dispensary is only accessible for medical clients, who pay $50 for a license from a certified doctor.

However, the Tribe honors medical cards from people outside the Reservation; you don’t have to be part of the Tribe to access the dispensary. Instead, you have to be diagnosed with a “chronic or debilitating disease or medical condition” or “any condition that, in the opinion of a practitioner, a patient would likely benefit from the use or marijuana” such as AIDS, anorexia, arthritis, cancer, glaucoma, or migraine.

What Happens Next

The State Supreme Court posts its rulings every Thursday. As of Thursday September 9th, the day The Stash spoke with South Dakotans for Better Marijuana Laws, no ruling had been posted regarding Amendment A’s constitutionality. So what if the Supreme Court decides Amendment A was, in fact, unconstitutional? “We’ll go back to the ballot and win again,” said Schweich.

That vote would be in November 2022, the same election where Governor Noem will vie for her seat. As for when medical marijuana will be available, it’s difficult to say. The South Dakota Department of Health is still working on medical marijuana cards. Those are supposed to be done by November. The Department also has to develop a system for licensing businesses, and there are groups pushing them to move forward with that. Schweich expects there will still be fights ahead on the medical marijuana side.

If and when the fight is over, legal cannabis is expected to bring in millions of dollars in tax revenue to South Dakota’s local and state governments. The new industry would also create jobs both directly and indirectly – of course, people working within the industry would have new opportunities; but it would also create new commercial activity for contractors building new facilities, on top of the other specialists like plumbers, HVAC specialist, compliance and security firms, and more.