Back in September, Wikileaf reported on South Dakota’s struggle to get marijuana on the shelves after its voters chose to legalize the product for both medicinal and recreational use in a first-of-its-kind election year. That struggle was due in large part to the state’s own governor, Kristi Noem, who led a legal fight against her own citizens. Though Noem lost her bid against medical marijuana, she seems to have won out in her push against recreational weed. That’s all thanks to a technicality.

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Court Rulings

Medical marijuana passed in South Dakota through a ballot measure, which passed with an astonishing 70% supermajority. Measure 26 allows people diagnosed by a physician to have a debilitating medical condition to get a medical marijuana card that approves them to possess up to three ounces of marijuana. Governor Noem tried to delay the implementation of Measure 26, but ultimately failed, and then did a 180 to switch her tune in sudden support of the measure.  Recreational marijuana, however, passed through an amendment to the state’s constitution. That type of law has other regulations. The one that caused trouble for Amendment A is that changes to the constitution must only address a single subject. In a 4-1 ruling, the South Dakota Supreme Court said Amendment A touches on “at least three separate subjects, each with distinct objects or purposes” and considers adding at “at least nine different provisions to the Constitution.”  Those provisions included:

  • Creating a constitutional right for individuals at least 21 years of age to possess and use certain quantities of marijuana;
  • Regulating the planting, cultivating, harvesting, drying, processing, and manufacturing of marijuana;
  • Creating civil penalties for individuals that violate the provisions in Amendment A;
  • Making the South Dakota Department of Revenue responsible for the regulation and oversight of the production, sale, and possession of marijuana;
  • Creating statewide regulation of the licensing of producers, manufacturers, and sellers of marijuana;
  • Authorizing local regulation of the commercial sale and distribution of marijuana for individuals at least 21 years of age and regulation to allow individuals at least 21 years of age to cultivate marijuana at a private residence;
  • Establishing the taxation of marijuana sold to individuals at least 21 years of age;
  • Mandating the Legislature to enact legislation by April 1, 2022
    • The court counted two different offenses with the start date to the legislation because of the language explaining why the project must be done by then.

Amendment A passed in South Dakota with 54% of voters in favor of the change. But Governor Kristi Noem, who won with only 51% approval in her state, chose to argue against the 34,783 South Dakotans who showed up to the polls and said they wanted adult-use marijuana. Noem had Highway Patrol Superintendent Colonel Rick Miller sue on her behalf, and Pennington County Sheriff Kevin Thom joined in. A Circuit Court ruled against Amendment A, and an appeal sent the argument to the State Supreme Court.

Dakota State Capitol in Pierre South Dakota on a sunny spring day Source: Shutterstock
The Supreme Court treated the legal battle as though it had come from Governor Noem herself, stating in its decision, “…The Executive Order makes clear that the Governor intended to challenge Amendment A by her authority in Article IV, § 3 of the Constitution, that she authorized the suit filed by Miller, desired that it continue, and affirmed it in all respects.” Chief Justice Steven Jensen, who authored the decision, did bring up that Governor Noem could have and should have challenged Amendment A before it went up for voter approval. She could have done that in several ways, for instance seeking injunctive relief to prevent the South Dakota Secretary of State from putting the Amendment on the ballot in the first place.  For her part, Governor Noem seems to be celebrating the ruling. In a statement, the Governor said,  “South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about. We do things right – and how we do things matters just as much as what we are doing. We are still governed by the rule of law. This 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 South Dakotans.”

What’s Next?

When Wikileaf talked with South Dakotans for Better Marijuana Laws in September, Matthew Schweich, the campaign director for that agency told The Stash that if Amendment A failed in court, his agency would continue pushing forward. After checking back in with Schweich, it seems SDBML’s tune hasn’t changed.  “We remain hopeful that Amendment A will be restored by the South Dakota Supreme Court. However, the November 8 deadline for 2022 ballot qualification is quickly approaching, and we have no choice but to launch a signature drive,” Schweich said in a statement. He continued, “In the coming days, we will be distributing petitions to volunteers all across the state and signing locations where voters can easily sign our petitions. We have less than a month to collect the signatures we need, but our supporters are very energized. They are deeply frustrated by Governor Noem’s decision to launch a taxpayer-funded lawsuit against Amendment A, the lack of a ruling in the case, and Governor Noem’s failed attempt to severely delay the implementation of Measure 26. “We originally filed five potential ballot initiatives, but we are choosing to move forward with short statutory legalization initiative because it is the most likely to withstand any future legal challenges.” South Dakotans for Better Marijuana Laws have already started up a campaign to get enough signatures for a new legalization initiative to be included on next year’s ballot. Similar to Amendment A, the proposed law would allow adults 21 and older to possess up to 1 gram of marijuana for recreational use and would let them grow cannabis in their own homes for personal use. 

Voters lined up at a polling place Source: Shutterstock
South Dakota lawmakers, hearing their constituents’ calls for legal marijuana, are acting on their own as well. A proposal to legalize recreational adult-use marijuana has been advancing and could pass in the next legislative season. It would eliminate criminal charges for possession of up to 4 ounces of marijuana, but ban consumption of the product in public spaces. The problem is, even if that bid passed through every legislative committee and the full South Dakota Legislature, it would still have to clear the hurdle of getting the Governor’s signature, which is highly unlikely to happen.