On November 3rd, 2020 South Dakota became the first state to simultaneously legalize medicinal and recreational cannabis through two separate voter initiatives. Now, police in the state have filed a lawsuit aiming to overturn Amendment A, which legalized recreational use. Filed on what could be considered a technicality, the same group that pushed the initiative to the ballot now are fighting for the will of voters.
South Dakota Police Aim to Fight Legalization in Court
The lawsuit was filed on November 20 by Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller. The lawsuit also has the support of Governor Kristi Neom. Neom is not only against legalization but has stood in the way of attempts to legalize even hemp through legislature in the past.
“Our constitutional amendment procedure is very straightforward,” Miller said in a statement. “In this case, the group bringing Amendment A unconstitutionally abused the initiative process. We’re confident that the courts will safeguard the South Dakota Constitution and the rule of law.”
According to their lawsuit, Amendment A should be considered null and void “because the amendment inserts a new section into the constitution.” Therefore, they claim that it should be considered a revision to the constitution, not an amendment. Unlike an amendment, a revision to the constitution requires a two-thirds vote in favor from the legislators..
“I’ve dedicated my life to defending and upholding the rule of law,” Thom said in a press release, according to Marijuana Moment. “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.”
Legal Loopholes and Technicalities Could Be Problematic
The lawsuit claims that Amendment A should be considered a revision stems from an argument that the ballot measure did not follow the states single-subject rule. According to the lawsuit filed by Thom and Miller, the initiative covers multiple issues. This includes legalizing and regulating marijuana for adults 21 and older, the regulation of medical cannabis and hemp.
Those who pushed the initiative, however, argue that the single subject is cannabis, and that everything else pertains to that single subject. South Dakotans for Better Marijuana Laws is prepared to intervene, calling it a “manufactured distinction” that is “unsupported in the law”.
“We are prepared to defend Amendment A against this lawsuit,” South Dakotans for Better Marijuana Laws said in a statement. “Our opponents should accept defeat instead of trying to overturn the will of the people. Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year.”
Further, the group also says that the police lawsuit was filed incorrectly. The suit was filed as a “contest to an election” which is meant to challenge the way an election was conducted.
“The complaint has nothing to do with the manner in which the election was conducted and only relates to the text of Amendment A,” the pro-legalization organization said. “But anyone who reads Amendment A can see that every word relates to the cannabis plant.”
Court Battles Could Delay Implementation of Amendment A
“In South Dakota we respect our Constitution,” Noem said. “I look forward to the court addressing the serious constitutional concerns laid out in this lawsuit.”
It is not entirely unusual for lawsuits to crop up challenging the validity of a voter initiative to legalize cannabis. Unfortunately, not everyone is ready to give up the fight even after voters have their say. There are legal challenges across the country after the 2020 election made legalization the big winner. However, South Dakota has taken it a step further, allowing state funds to be used to fight the constitutional amendment.
If the lawsuit is dropped, whether by the courts or the state, the new law will go into effect on July 1, 2021. On the other hand, it wouldn’t be the first time that legal challenges have delayed legalization. There is also a chance that lower courts will send the case off to the Supreme Court to interpret the single-subject rule, as well as truly distinguishing the difference between a constitutional amendment and a revision of the constitution.
At this point, it’s too soon to say whether this will indeed delay Amendment A going into effect. Courts have been backed up since early this year due to COVID, on top of how long a court case can typically take to settle anyway. Hopefully, South Dakota courts won’t let these potential loopholes overturn the will of the voters. As always, Leafwell will keep you updated on any developments in this case as it unfolds.
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Judge Says Police Are Right, Amendment A is Unconstitutional – Senate Passes Legislation Anyway
Previously Leafwell reported on an on-going court battle over Constitutional Amendment A, which South Dakota voters approved in November to legalize adult use marijuana. On February 8th, a South Dakota Circuit Judge Christina Klinger sided with police and ruled that the voter-approved measure was unconstitutional.
“Today’s decision protects and safeguards our constitution,” Noem said in a statement. “I’m confident that South Dakota Supreme Court, if asked to weigh in as well, will come to the same conclusion.”
Brendan Johnson, a sponsor of the amendment, who represented the pro-marijuana group South Dakotans for Better Marijuana Laws, has stated that he plans to appeal the ruling to the Supreme Court. However, it appears that may no longer be necessary, as the Senate has moved forward with a bill to implement legalization regardless of the court’s recent decision.
On Wednesday, February 24, the South Dakota senate approved Senate Bill 187B with a vote of 19-16. The intent of the bill is to put in place a system of laws to regulate the sale, possession, and consumption of adult-use retail cannabis.
Apparently, the Senate recognizes that Constitutional Amendment A was ruled unconstitutional by the courts, they also recognize that a majority of South Dakota voters support the change and “believes it necessary to enact this legislation.”
Although, there may be snags when it comes to the state’s House of Representatives. Rapid City Representative Mike Derby is the prime sponsor in the house and says that something will have to change if South Dakotans are to see marijuana legalized. This could be that the ruling against Amendment A is overturned by Supreme Courts, a new amendment that passes judicial review is approved, an initiated measure legalizing cannabis is approved by voters, or the least likely, the federal government fully decriminalizes cannabis.
Before SB187B reaches the house for a vote it will first be assigned to a committee for review. Only if it passes through committees and a vote by the house will it make it to Governor Kristi Noem in hopes of being signed into law.
Leafwell will continue to keep you up to date on the state of legalization in South Dakota as new information becomes available.