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The South Dakota Supreme Court ruled on Wednesday that a voter-approved marijuana legalization initiative was invalid on procedural grounds, a major setback for activists who have been waiting for the court’s decision for months. That said, advocates are now pursuing a two-pronged plan to implement the reform next year.

In a 4-to-1 vote, the judges upheld a circuit court ruling that found the 2020 ballot measure violated the state’s one-topic rule for constitutional amendments, meaning that it covered too much ground and was not sufficiently targeted to meet the electoral standard.

The lawsuit was officially brought by two law enforcement officers, but was funded with taxpayer money provided by the administration of Governor Kristi Noem (R).

The judges “determined that the provisions of Amendment A encompass three separate and distinct topics,” a court press release said, referring to the proposal being for adult marijuana, medical cannabis and hemp.

“In making its decision, the majority opinion explained that the provisions regarding recreational marijuana, hemp and medical marijuana each have distinct objects and purposes, which are not dependent or related to each other, ”he said. “The drafters’ failure to meet the single topic requirement of Article XXIII, paragraph 1 of the South Dakota Constitution meant that voters were unable to vote separately on each separate topic included in amendment A. “

In its opinion, the majority of the court said it “has long stressed the importance of the constitutional requirement ensuring that voters have the opportunity to vote separately on each separate subject contained in a proposed amendment.”

“…… this amendment,” he said. “It also runs the risk of defining the object or purpose too narrowly or too broadly.”

The state constitution “is not violated simply because a proposed amendment includes several provisions”, continues the opinion. “On the contrary, a violation occurs when the proposed amendment contains more than one subject, with different objects or purposes, which do not depend on each other or are not related to each other.”

South Dakota advocates for Better Marijuana Laws (SDBML) strongly opposed the court ruling.

“We believe this decision by the South Dakota Supreme Court is extremely flawed,” said Matthew Schweich, SDBML campaign manager. “The court rejected common sense and instead used far-fetched legal theory to overturn a law passed by more than 225,000 South Dakota voters on the basis of no logical or convincing support.”

The ruling says Amendment A included three topics – recreational marijuana, medical marijuana and the legalization of hemp – and that South Dakotas couldn’t say what they were voting on when they voted for amendment A, ”he said. “It’s a legal stretch that rests on the disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative.”

“The fact that the South Dakota Supreme Court took almost seven months to render a decision on an election-related lawsuit is extremely problematic. This indefensible delay has undermined public confidence in South Dakota’s election, its system of government and its justice system. The court owes the people of South Dakota an explanation.

Now advocates will turn their attention to a two-track approach to adopting legalization.

In the legislature, a cannabis reform bill was formally recommended by a steering committee for the upcoming session. The SDBML will also continue to collect signatures for a 2022 polling initiative, although they hope to work with lawmakers to push forward legislative reform ahead of next year’s election.

An interim marijuana study committee recently made the formal recommendation that the legislature pass legalization following a series of hearings. The recommendation was approved this month by the Legislature’s Governing Board, which is chaired by the Speaker of the House and the Speaker pro tempore of the Senate.

Senator Bryan Breitling (right) said the legislature will see two bills to legalize adult marijuana and 23 proposals related to the state’s medical cannabis program during next year’s session . Voters also approved a separate piece of medical cannabis voting legislation last year, which went unchallenged in court and came into effect in July.

But the Supreme Court ruling on the adult use initiative is still a disappointment for advocates who had planned to end their ongoing 2022 campaign if Amendment A was upheld. While voters strongly approved the reform in the ballot, it was later challenged in the trial funded by the Noem administration.

From now on, all eyes will be on the legislative body.

As drafted, the current version of the bill approved by committee and board of directors would allow adults 21 and over to buy and possess up to an ounce of cannabis. The State Revenue Department would be responsible for regulating the market and issuing licenses to operate marijuana.

Unlike legalization initiatives that South Dakota voters approved last year, the bill would not provide a home grow option for adult consumers. Growing marijuana for commercial sales could also only be grown indoors.

Lawyers say it is important to continue pursuing their voting initiative for next year due to lingering uncertainties.

SDBML initially put forward four proposals for legalization initiatives in the event of a negative court ruling, but they ultimately decided to pursue only one.

The campaign explained why it believes the Supreme Court erred in its decision on Wednesday:

1. As the dissent points out, there was no evidence of confusion among the voters. It is unacceptable that the court violates the process of initiating the ballot on the basis of no real evidence.

2. It is clear that voters understood that Amendment A was not just a medical marijuana initiative given that only 54% of voters approved Amendment A while 70% of voters approved Measure 26 (a measure initiated which only concerned medical marijuana). If voters thought Amendment A was a medical marijuana-only initiative, there wouldn’t have been a 16-point gap in election results.

3. The claim that voters in South Dakota believed Amendment A was purely a hemp legalization initiative defies logic and reality. Additionally, South Dakota had already passed hemp legalization by the time voters approved Amendment A.

4. Medical marijuana and hemp were only mentioned in three sentences of Amendment A. The rest of the initiative was about recreational marijuana. Additionally, it’s worth noting that recreational marijuana, medical marijuana, and hemp are all versions of the same plant: cannabis.

“We are more motivated than ever to continue our work,” said Schweich. “We won’t stop until cannabis is legalized in South Dakota.”

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Photo elements courtesy of rawpixel and Philip Steffan.

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