Advocates in South Dakota are calling the state Supreme Court’s decision to invalidate a voter-approved recreational cannabis initiative on technical grounds a “terrible precedent” and are calling on the Legislature to put it right with voters by approving adult-use legalization in the 2022 session.
“They rejected common sense,” said Matthew Schweich, deputy director of the Marijuana Policy Project and campaign director for South Dakotans for Better Marijuana Laws, the group that sponsored the 2020 initiative.
According to the courts, Amendment A, which passed in 2020 with 54% of the vote, was unconstitutional because South Dakota law states that initiatives must be a single subject; Amendment A “embraced ‘at least five distinct general subjects,’” including the right to grow, possess and use marijuana; giving the state the power to promulgate rules regulating marijuana; imposing a tax on marijuana and directing how the revenue is appropriated; requiring the Legislature to pass laws ensuring access to medical marijuana; and requiring the Legislature to pass laws regarding hemp.
Schweich said opponents of cannabis legalization “weaponized” the single-subject requirement and said justices “bended over backwards to throw this law out.”
“Their ruling rests on the idea that medical cannabis, recreational cannabis and hemp are three different subjects,” he said. “Our position is that these are clearly one subject because all three of these topics relate to the cannabis plant.”
Melissa Mentele, executive director of New Approach South Dakota, the group that placed the medical initiative on the ballot, agreed.
“Their ruling is based on them not knowing what cannabis is,” she said. “It’s all one plant.”
Schweich also said the court’s argument that some voters may have been confused by two different marijuana initiatives — voters also approved a medical marijuana amendment that was also on the ballot — was also flawed because the differing vote totals showed that voters knew the difference. The medical marijuana initiative passed with 70% of the vote, compared to 54% of the vote for recreational cannabis.
“Their arguments are contradicted by crystal clear evidence,” he said.
Mentele also said the decision would be “disheartening” to voters who could lose faith in the ballot process by watching the courts overturn their votes.
“We assured them their vote did count, then this happens,” she said.
Schweich said his group was already at work on a ballot measure for 2022 that would be “bulletproof” to the single-subject challenge, but he and other advocates would be working this spring to convince the Legislature to take up the measure and restore the will of the people.
“It’s dragged on far too long and the will of the people need to be respected,” he said.
In a press release, Ned Horsted, the executive director of the Cannabis Industry Association of South Dakota, said the court’s ruling doesn’t change the fact that South Dakota voters “spoke clearly when they approved legalization of adult-use marijuana” in November 2020.
“This ruling creates an opportunity for the legislature to do the will of the voters and enact legislation to legalize marijuana for adult use,” he added.
— Brian Beckley