The South Dakota Supreme Court struck down Amendment A, an initiated constitutional amendment to legalize recreational marijuana in South Dakota, on Wednesday morning.

“In a four-to-one decision, the Court held that Amendment A, as submitted to the voters in the November 2020 general election, violated the single subject requirement in the South Dakota Constitution,” a Wednesday press release from the South Dakota Unified Judicial System read. “As a result of the constitutional violation, the Court has declared the amendment invalid.”

Amendment A would have legalized recreational marijuana for South Dakotans aged 21 and over, with possession and distribution limited to one ounce or less and a 15 percent tax on marijuana sales with that revenue directed to the state Department of Revenue to pay back Amendment A’s costs and the rest split evenly between public schools and the state’s General Fund.

Wednesday’s decision comes nearly seven months after the court heard arguments in late April.

Amendment A was approved by 54 percent of voters last November before Sixth Circuit Court Judge Christina Klinger declared it unconstitutional in February. Klinger wrote in her ruling that Amendment A represented a revision of the state constitution, not an amendment.

Under the South Dakota Constitution, amendments are subject to the “single subject rule,” which was added to the constitution after voter approval on the 2018 general election ballot. Under the single subject rule, amendments may only concern one subject. A more thorough revision of the state constitution requires a constitutional convention.

The Court determined that Amendment A covered three distinct subjects by “creating a comprehensive plan to constitutionally legalize, regulate, and tax marijuana for all persons at least twenty-one years of age,” “constitutionally mandating that the Legislature pass laws regarding hemp” and “constitutionally mandating that the Legislature pass laws ensuring access to marijuana for limited medical use for qualifying persons.”

South Dakota voters approved Initiated Measure 26 in the November 2020 general election, thus setting up the state for legalized medical cannabis. Attempts to push back the date of implementation failed, and IM 26 went into effect on July 1.

Gov. Kristi Noem affirmed that Wednesday’s decision does not affect the state’s medical marijuana program.

“South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about,” Noem said in a Wednesday press release. “We do things right – and how we do things matters just as much as what we are doing. We are still governed by the rule of law.”

Noem spokesperson Ian Fury did not respond to questions from the Capital Journal about how the Governor’s Office thinks the Supreme Court decision will play with voters given Amendment A’s majority approval and whether the office will take that majority approval into account when faced with future legislation.

“We weren’t sure what the ruling would be, but we wanted to be prepared for any outcome and we knew that a ruling overturning Amendment A was a possibility,” Campaign Director Matthew Schweich of South Dakotans for Better Marijuana Laws said. “So that’s why we started the signature drive last month and why we’re going to continue to ensure that we maintain this option of going back to the ballot next year if need be. Hopefully the South Dakota Legislature will listen to the will of the people and pass a recreational cannabis legalization bill next session and we’re certainly going to be doing everything we can to encourage them to pass that type of bill, but if we can’t get a bill pass, then we’re going to need to go back to the ballot.”

Schweich said his organization is still in the process of counting and validating signatures, but has completed a “substantial” portion of the drive, which will need to turn up just under 17,000 signatures to get an initiative on the ballot next November. He added that Noem should disclose how much taxpayer money was spent on the lawsuit and clear up “contradictory” statements about her involvement.

“I think the voters are going to be very frustrated by this ruling,” Schweich said. “Not only voters who voted ‘yes’ on Amendment A but even voters who voted ‘no’ on Amendment A but respect the initiative process. This is much bigger than cannabis legalization. This ruling really creates a complication for fewer ballot initiatives on any issue.”

Dist. 24 reacts

State Rep. Will Mortenson, R-Dist. 24, told the Capital Journal on Wednesday that while he will not be sponsoring legislation legalizing recreational marijuana, legislation addressing the issue will come forward during the 2022 legislative session.

“The Legislature studied the marijuana issue throughout the summer both in terms of the medical marijuana program and recreational adult-use marijuana,” Mortenson said. “The summer study recommended and will be introducing a measure that legalizes adult-use recreational marijuana. That’s not to say that such a measure will be certainly passed, but it is something that we will certainly be considering.”

Mortenson said he is “frustrated” by the amount of time the decision took and also the fact that the majority approval on Amendment A was overturned because South Dakota law was not followed.

“That voice isn’t heard,” Mortenson said. He added that he had not looked at the full, 77-page decision as of Wednesday morning but that he hoped the court made the right decision.

“I just think we need to be really careful when the Constitution is being amended,” State Sen. Mary Duvall, R-Dist. 24, said. “And Amendment A had 95 sections, it was really a lot to digest, and, from my perspective, a lot to incorporate into our Constitution without going through a lot of strict scrutiny.”

Duvall said some of the language in Amendment A was “a little contradictory” and “unnecessary,” such as that regarding hemp. She noted that industrial hemp became legal in South Dakota in 2020.

“It seems to me that amending the Constitution should be done very sparingly and very carefully,” Duvall said.

State Rep. Mike Weisgram, R-Dist. 24, did not respond to a message for comment on Wednesday.

Michael Woodel | 605-224-7301 ext. 131

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