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

In a 4-1 vote, the justices upheld a circuit court ruling that found the 2020 ballot measure violated the state’s single subject rule for constitutional amendments, meaning it covered too much ground and was not narrowly focused enough to meet the electoral standard.

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

Today’s decision does not affect my Administration’s implementation of the medical cannabis program voters approved in 2020. That program was launched earlier this month, and the first cards have already gone out to eligible individuals. Learn more at https://t.co/Nm0GxQ4qL4

— Governor Kristi Noem (@govkristinoem) November 24, 2021

The justices “determined that the provisions of Amendment A embraced three separate and distinct subjects,” a press release from the court states, referring to the fact that the proposal dealt with adult-use marijuana, medical cannabis and hemp.

“In reaching its decision, the majority opinion explained that the provisions involving recreational marijuana, hemp, and medical marijuana each have separate objects and purposes, which were not dependent upon or connected with each other,” it said. “The drafters’ failure to comply with the single subject requirement in the South Dakota Constitution Article XXIII, § 1 meant that voters were unable to separately vote on each distinct subject embraced in Amendment A.”

In its opinion, the majority of the court said it “long ago emphasized the significance of the constitutional requirement ensuring voters are afforded an opportunity to vote separately on each separate subject contained in a proposed amendment.”

“Importantly, any statement of the object or purpose of Amendment A divorced from a review of the provisions contained therein and their connectedness to one another runs the risk of defining the object or purpose based on various policy objectives sought to be attained by the drafters of this Amendment,” it 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 multiple provisions,” the opinion continues. “Rather, a violation occurs when the proposed amendment contains more than one subject, with different objects or purposes, that are not dependent upon or connected with each other.”

Advocates with South Dakotans for Better Marijuana Laws (SDBML) strongly pushed back against the court’s ruling.

“We believe that this ruling from the South Dakota Supreme Court is extremely flawed, Matthew Schweich, campaign director for SDBML, said. “The court has rejected common sense and instead used a far-fetched legal theory to overturn a law passed by over 225,000 South Dakota voters based on no logical or evidentiary support.”

“The ruling states that Amendment A comprised three subjects—recreational marijuana, medical marijuana, and hemp legalization—and that South Dakotans could not tell what they were voting on when voting for Amendment A,” he said. “It’s a legal stretch and one that relies on the disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative.”

“The fact that the South Dakota Supreme Court took nearly seven months to issue a ruling on an election-related lawsuit is extremely problematic. This indefensible delay undermined the public’s faith in South Dakota’s elections, its system of government, and its judiciary. The court owes the people of South Dakota an explanation.”

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

In the legislature, a cannabis reform bill has been formally recommended by a leadership panel for the upcoming session. SDBML will also continue collecting signatures for a 2022 ballot initiative—though they hope to work with lawmakers to advance reform legislatively ahead of next year’s election.

A Marijuana Interim Study Committee recently made the formal recommendation for the legislature to take up legalization following a series of hearings. The recommendation was agreed to this month by the legislature’s Executive Board, which is led by the House speaker and Senate president pro tempore.

Sen. Bryan Breitling (R) said the legislature will see two adult-use marijuana legalization bills and 23 proposals related to the state’s medical cannabis program during next year’s session. Voters also approved a separate statutory medical cannabis ballot measure last year, and that wasn’t challenged in the courts and took effect in July.

“Amendment A does not impact or affect the [Medical Cannabis] program, which is on schedule and meeting all statutory timelines approved by the voters.” – @sddohkmr

Full News Release: https://t.co/bxlb7IMDoV pic.twitter.com/cd6T4T5zWc

— Department of Health (@SDDOH) November 24, 2021

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 had been upheld. While voters strongly approved the reform at the ballot, it was later challenged with the lawsuit funded by the Noem administration.

Now eyes will be focused on the legislature.

As drafted, the current version of the bill approved in committee and by the executive board would allow adults 21 and older to purchase and possess up to an ounce of cannabis. The state Department of Revenue would be responsible for regulating the market and issuing marijuana business licenses

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

We respect the court’s decision that the referendum violated the state’s constitution. The state of South Dakota will continue to implement the medical cannabis program.

— Kristi Noem (@KristiNoem) November 24, 2021

Advocates say that it’s important to continue to pursue their ballot initiative for next year due to the ongoing uncertainties.

SDBML had initially put forward four proposed legalization initiatives in the event of a negative ruling by the court, but they ultimately decided to pursue just one.

The campaign expanded on why it feels the Supreme Court erred in its ruling on Wednesday:

1. As the dissent points out, there was no evidence of voter confusion. It’s unacceptable that the court would violate the ballot initiative process based on no actual evidence.

2. It is clear voters understood that Amendment A was not solely a medical marijuana initiative given that only 54% of voters approved Amendment A while 70% of voters approved Measure 26 (an initiated measure that only addressed medical marijuana). If voters believed Amendment A was a medical marijuana-only initiative, there would not have been a 16-point gap in the election results.

3. The assertion that South Dakota voters believed Amendment A was solely a hemp legalization initiative defies logic and reality. Furthermore, South Dakota had already enacted hemp legalization by the time voters approved Amendment A.

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

“We are as energized as ever to continue our work,” Schweich said. “We will not stop until cannabis is legalized in South Dakota.”

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Photo elements courtesy of rawpixel and Philip Steffan.