On the day before Thanksgiving, South Dakota’s Supreme Court issued a ruling for which proponents and opponents of cannabis legalization have waited throughout most of 2021.
At this point, the Court’s decision, to strike down an adult-use ballot measure that voters passed in November 2020, amounts to a speed bump. Both advocates and lawmakers have been at work for months crafting separate contingency plans to legalize in the state. Looking ahead to 2022, the question is: which one will prevail?
This summer, lawmakers formed the Adult-Use Marijuana Study Subcommittee, which met between June and October. During those months, the subcommittee heard from stakeholders across law enforcement, local government, and the cannabis industry, with a specific focus on lessons learned from Colorado. By the final meeting, a draft bill to legalize and regulate adult use was ready for the full legislature’s upcoming consideration in January.
Rep. Mike Derby, who spearheaded these legislative efforts, told Cannabis Wire that he would prefer legalization through the legislature rather than through another ballot measure.
“We’d rather craft it ourselves. And I think that we can have hearings and run it through the legislative process,” he said. “I do respect, obviously, the will of the voters and that’s what I said after [the measure] was passed. And of course that has now been struck down so we kind of have to go back to the other routes.”
But even if a bill were to clear the legislature, it’s unlikely that Gov. Kristi Noem would sign it into law. In an unusual twist, as Cannabis Wire previously reported, it was Noem who pushed the lawsuit, marking the first time a state governor has led a successful effort to overturn a voter-passed cannabis measure.
With so much uncertainty, South Dakotans for Better Marijuana Laws, which led the adult use campaign in 2020, filed a handful of potential ballot initiatives in July, and has since been at work on signature gathering. After the Supreme Court ruling last week, Matthew Schweich, the group’s campaign director, said in a statement, “We are as energized as ever to continue our work.”
As all of this plays out with adult use, the medical cannabis measure that voters passed in November 2020 has taken effect. Earlier this month, as Cannabis Wire reported, Ned Horsted, the executive director of the Cannabis Industry Association of South Dakota, hosted a panel focused on how local governments are approaching those regulations.
After the Court’s ruling, Horsted told Cannabis Wire that he thinks it “will cause the legislative effort for adult use cannabis [to] continue to gain steam.”
“In general,” he continued, “voters are very upset that they did not get what they approved, and the legislature will be under tremendous pressure to fix this. Furthermore, smart politicians will realize that running against legalization after it was approved by voters is a really bad idea, especially when they very likely could be on the same ballot as a new legalization ballot initiative in 2022.”
Indeed, the state’s voters were clear in their support for cannabis reform, and the state was the first where voters approved medical and adult use at the same time. Their options were Amendment A, which legalized both medical and adult use and also addressed hemp, which received 54% support, and Measure 26, which legalized only medical use, and received 70% support. Both passed.
The Court’s ruling against Amendment A was not one against legalization, but against its multi-pronged approach. In short, the Court determined that it “violated the single subject requirement in the South Dakota Constitution.” Schweich called the ruling “extremely flawed,” adding that it “relies on the disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative.”
The state would have been the first to see a voter-passed cannabis measure overturned had it not been for a Supreme Court ruling in Mississippi in May to strike down medical cannabis.
Noem released a statement following the Court’s ruling. “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,” it read.
The statement also pointed to the fact that the medical cannabis program has moved forward, a distinction that advocates see as political pandering.
Rep. Steve Haugaard, a Republican who is in the running to replace Noem, also issued a statement after the ruling. While voters “definitely” supported medical cannabis, he said, “it appeared voters were generally intending to support the idea of decriminalizing the use and possession of” cannabis for non-medical use, he continued, siding with the “confusion” argument.
Haugaard continued, “The Legislature is keenly aware of the public’s concern that the people’s voice must be heard and respected. As a result, the Legislature has already been working on bills and recommendations for the upcoming Session to work through the issues surrounding marijuana. It will be a subject of special interest during the Session.”
Eric Tegethoff contributed reporting.