How can the South Dakota Supreme Court crush the voter-approved marijuana legalization initiative?

In November 2020, South Dakota voters voted in droves for the cannabis legalization initiative. Less than a year later, the state Supreme Court dismissed the initiative after much back and forth. The organizers of the initiatives and other cannabis advocates in the country have no choice but to start over.

The court argued that the voting initiative violated the “single object” rule required to change the content of a constitution.

Make history

During the recent general election, South Dakota residents, cannabis advocates, and most importantly, voters made history by supporting ballot initiatives written to legalize the use of medical and recreational marijuana in the state.

The initiative, titled Amendment A, called on the number of voters required to win by eight points. That’s impressive because the state is overwhelmingly conservative and most of the voters are Republicans.

The start of an endless legal battle

Almost immediately after the initiative was successfully approved, a lawsuit against the language was brought. Kristi Noem, South Dakota (R) governor and an anti-cannabis personality, endorsed the challenge, and the entire matter has been embroiled in litigation since then.

In February, when the first judgment was passed, the judge stated that the initiative uses languages ​​that legalize and regulate three new industries instead of one. The “single subject” rule is the primary basis on which various cannabis initiatives have been thrown out of the running.

In the case of constitutional amendments, an initiative can only target a single issue. To address other issues at the same time, more initiatives need to be written and written down.

The initiative, which has since been rejected, would have legalized recreational cannabis, industrial hemp and medical cannabis.

Chief Justice Steven Jensen says the Amendment A initiative touches on three different issues, each with their own unique roles and characteristics. Governor Kristi Noem had spoken out against the fundamental reforms from the start; Some suspect the executives knew about the single item rule, but decided to keep the initiative listed so it could be used as a weak point to bring it down. It was more or less like a backup plan. The state did not realize that the initiative could appeal to around 54% of the total electorate.

Fortunately, the General Court’s repeal of Amendment A has no adverse effect on Measure 26.

Measure 26 is the initiative, which focuses on the medical use of marijuana, and was passed with around 70% voter approval in the 2020 general election.

More details on Amendment A

The judgment of the court was based on Article XXIII paragraph 1 of the state constitution. This paragraph states that any proposed changes should not include more than one thematic aspect. The High Court stated that this section of the Constitution was included to prevent voters from introducing unrelated subjects into the law.

The Supreme Court described it as a means of preventing the malicious act of combining two or more different subjects in one amendment to ensure approval of an issue that would have failed had the provisions been drafted independently.

The authors of Amendment A, as well as the majority who voted in favor of the initiative, said a higher percentage of the measure revolved around licensing, taxation and general regularization of a single issue – namely the legalization of adult cannabis used for residents will be at least 21 years of age or older. The majority also accepted that the remaining provisions on the medicinal use of marijuana and the creation of an industrial hemp industry touched upon the two different issues.

In court, voters argued that the initiative was created using the one-tier rule, as all of the provisions contained only related to one species of plant; Marijuana. In the court’s view, this argument was only one way of negating the purpose for which Article XXIII was written. The judges indicated that the content of the measure defines hemp as a non-psychoactive subspecies of marijuana with a travel amount of THC. This definition itself proves that hemp is different from marijuana.

According to the judges, the initiators of the initiative tried to manipulate voters into approving a combined measure. Clumping amendments on hemp and medicinal cannabis, along with a broader provision on recreational cannabis, put voters in a difficult position. It forced voters who voted for only one in three or two in three measures to approve of all actions.

Scott Myren, a judge from South Dakota, wrote deviatingly that Amendment A should be a comprehensive measure that affects all aspects of the legalization, use, production and sale of marijuana. From his point of view, the topic in this case is complex and multi-layered. He believed that there was little the authors could have done to keep the initiative from including additional prescriptions. In so far as all of these suggestions can be related to cannabis, the initiative was on the right track. Myren argues that there is no claim that voters were confused or misinformed about the content of the approved measure.

Try again next year

The only way to pass or implement Amendment A is through the legislative arm of the state. Legislators can vote to enforce the initiative’s guidelines; If not, voters will once again choose to start a new initiative before the mid-term elections. This time all initiative authors will deal with all objections of the state judiciary.

last words

Schweich’s organization has started working on a new initiative to be included in the middle of the elections.

The fate of recreational cannabis in South Dakota rests either on the success of that initiative or on the two bills that would be considered at the resumption of the legislature.

There’s a good chance all of these measures will fall due to Governor Noem’s stance on cannabis legalization. However, the governor has promised to proceed with the implementation of the medical cannabis program approved by Measure 26 last November.

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