South Dakota Court Ruling Sends Pot Referendum Up in Smoke

February 10, 2021 Updated: February 10, 2021

A state judge in South Dakota struck down a state constitutional amendment approved by voters in November that would lead to the legalization and taxation of the recreational use of marijuana because its supporters supposedly failed to follow proper procedure.

The lawsuit on which the judge ruled didn’t deal with Initiated Measure 26, another referendum approved by the voters at the same time. That initiative, which would create by statute a medical marijuana program in the state for individuals with a debilitating medical condition, was approved by voters 69.92 percent to 30.08 percent, according to Ballotpedia.

Measure 26 applies to patients suffering from “cachexia or wasting syndrome; severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms” caused by “a chronic or debilitating disease or medical condition or its treatment,” according to a Reason summary.

Circuit Judge Christina Klinger’s Feb. 8 ruling stated that Constitutional Amendment A ran afoul of a rule requiring that an amendment deal with only a single subject. Klinger ruled the measure, which dealt both with legalization and taxation of marijuana, had to be considered by a convention of state delegates before being placed on the ballot, and couldn’t be enacted by the petition process.

Lawyers for the individuals who brought the lawsuit challenging the constitutional amendment, South Dakota Highway Patrol Superintendent Rick Miller and Pennington County Sheriff Kevin Thom, had argued in court that because Amendment A added an entirely new section to the state constitution instead of merely changing an existing section, it was a revision, not an amendment.

Klinger agreed, writing that “the failure to submit Amendment A through the proper constitutional process voids the amendment and it has no effect.”

Miller and Thom were backed in the litigation by Gov. Kristi Noem, a Republican, who opposed the initiative during the election campaign.

Constitutional Amendment A was approved by the state’s voters 54.18 percent to 45.82 percent on Nov. 3, 2020, according to Ballotpedia. A “yes” vote supported the constitutional amendment to legalize the recreational use of marijuana and required the state legislature to pass laws providing for the use of medical marijuana and the sale of hemp by April 1, 2022.

Amendment A would make the recreational use of marijuana by individuals 21 years of age and older lawful. Under it, individuals would be allowed to possess or distribute up to one ounce of marijuana. The measure also provided that individuals in a jurisdiction with no licensed retail stores would be allowed to grow as many as three marijuana plants in a private residence in a locked space, though not more than six marijuana plants could be kept in one residence at a time.

A state tax of 15 percent would be applied to marijuana sales. The taxes collected would be used to cover costs associated with implementing the amendment, and the remaining revenue would be evenly split between the state’s public schools and the state’s general fund.

The amendment also stipulated that local governments would be free to ban marijuana cultivators, testing facilities, wholesalers, or retail stores from operating within their physical jurisdictions.

Had the November vote stood, South Dakota would have become the 14th state to allow recreational use of marijuana.

Noem lauded the judge’s ruling in a statement, saying the decision “protects and safeguards our constitution.”

The Epoch Times reached out to South Dakotans for Better Marijuana Laws, the group that put the amendment on the ballot, but did not receive a reply by press time.

A spokesman for the group, Brendan Johnson, was quoted by local media, saying, “We disagree with the ruling and we are preparing our appeal to the South Dakota Supreme Court.”