On Nov. 3, 54% of South Dakotans who voted chose to legalize marijuana for recreational use by passing Amendment A. This included a narrow two-vote majority of voters in Hughes County, though Stanley County voters opposed the measure by 61 votes.
On Friday, Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller filed two causes of action challenging the constitutionality of Amendment A, which legalizes, regulates and taxes marijuana in the state of South Dakota. Amendment A was approved by the majority of voters on Election Day, with 225,260 “yes” votes compared to 190,477 “no” votes. The challenges were filed in Hughes County Circuit Court.
If the court finds the challenges are valid, all ballots cast for Amendment A will be declared null and void and the amendment will not be ratified as a part of the state Constitution.
“I’ve dedicated my life to defending and upholding the rule of law,” Thom stated via news release. 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.”
“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.”
South Dakotans for Better Marijuana Laws, the advocacy group that pushed for legalization, will be filing to intervene in the case to defend Amendment A against the lawsuit, according to Campaign Manager Drey Samuelson.
“We are prepared to defend Amendment A against the lawsuit filed by Pennington County Sheriff Kevin Thom and Superintendent of the South Dakota Highway Patrol Colonel Rick Miller. Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year,” Samuelson said.
The causes of action are based on the assumption that Amendment A did not adhere to the requirements for an amendment that are set forth in the state Constitution.
“Pennington County Sheriff Kevin Thom and Superintendent of the South Dakota Highway Patrol Colonel Rick Miller are trying to invalidate Amendment A and overturn the will of the voters on the basis of two incorrect legal theories,” Samuelson said. “And this lawsuit was filed incorrectly under South Dakota law, as a ‘contest’ to an election. However, the complaint has nothing to do with the manner in which the election was conducted and only relates to the text of Amendment A.”
According to Article XXIII, Section 1 of the South Dakota Constitution, “A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject.”
“A major purpose of the one-subject rule is to avoid requiring voters to accept part of a proposed amendment that they oppose in order to obtain a change in the constitution that they support, resulting in votes that do not accurately reflect the electorate’s approval of the proposed amendment,” according to the challenge.
The challenge posits that Amendment A “embraces at least five separate subjects,” including the legalization of recreational marijuana; regulation, licensing, and taxation of commercial sale of recreational marijuana; regulation and licensing by political subdivisions; regulation of medicinal marijuana; and regulation of hemp.
“The first theory claims that Amendment A is not limited to a single subject. But anyone who reads Amendment A can see that every word relates to the cannabis plant. Furthermore, Amendment A follows the interpretation of the single subject rule used by the legislature. South Dakotans have a constitutional right to a ballot initiative process and it’s clear that Amendment A meets the single subject standard,” Samuelson said.
Amendment A would insert a new article into the Constitution; the first time this has ever happened since voters were first allowed the right to amend the state Constitution via the initiative process in 1972. While amendments can change existing articles to the Constitution, they cannot be used to adopt a new article, make “broad changes” to the Constitution, or make changes that address new subjects not included in previous articles.
The challenge says that Amendment A should have been considered a constitutional revision, which involves a “more stringent procedure” — revisions cannot be adopted without approval by members of a constitutional convention, according to Article XXIII, Section 2.The elected members of the convention then have to approve the proposed revisions by a majority before the public can vote on the revision.
“Proponents of Amendment A failed to follow the proper constitutional procedure and deprived South Dakota voters of the opportunity to have a substantial revision to the Constitution properly scrutinized and presented for ratification,” according to the lawsuit. “Therefore, the election as to Amendment A is a nullity and did not result in a free and fair expression of the will of the voters.”
“The second theory claims that Amendment A was improperly enacted because it created a new article in the constitution as opposed to adding a section to an existing article. This manufactured distinction is unsupported in the law and is utterly insufficient as a basis for overturning a constitutional amendment approved by voters,” Samuelson said.