The South Dakota Supreme Court is due to have the final say on most issues.
But it is judgment, knock down The recreational marijuana bill passed by 54% of voters in 2020 only moves the subject forward. We’re not done with the battle for legal pot.
The court (see above hearing the arguments in the case in a Joe Sneve / Pool Photo published in The Dickinson Press) released its 4: 1 judgment as Thanksgiving drew near in a classic news dump – that ran important news over a weekend or near a holiday – on Wednesday, November 24th. It caused another insane scramble for the skeleton crews who occupy the newsrooms in South Dakota, leaving marijuana advocates with a sour taste in their mouths as the holiday dawned.
Melissa Mentele from New approach South Dakota, who has led the fight for marijuana reform for seven years, called the verdict “quite shocking.” But Mentele said the struggle would continue into the 2022 legislature and through a voting measure in 2022.
Others also expressed their disgust.
“Today I share the frustration of hundreds of thousands of South Dakotans who have been denied their votes,” former US Attorney Brendan Johnson said in one tweet. “However, this will only strengthen our determination to return power to the people of South Dakota. The people rule under God. “
Johnson, the son of former Sen. Tim Johnson, has all but given up a potential career in politics to devote some of his energy to working on cannabis reform in South Dakota. He invoked the state motto to express his conviction that his cause will win in the end.
Johnson’s former chief of staff Drey Samuelson, is also a leading advocate of reform. Samuelson also expressed his indignation at the verdict.
“That is simply a cheek,” he said on Facebook. “I hope the South Dakotans express their anger clearly and vehemently – and legally, of course.”
Matthew Schweich, the campaign manager for South Dakotans for better marijuana laws, called the verdict “extremely flawed,” which was created on the “disrespectful assumption” that South Dakota voters were intellectually incapable of understanding the initiative. The court rejected common sense and instead used far-fetched legal theory to repeal a law passed by over 225,000 South Dakota voters with no logical or conclusive support, ”he said in a statement.
This was in contrast to his optimism on March 10th after I asked his opinion on the Supreme Court review of the law.
“We remain confident that the Supreme Court of South Dakota will confirm Amendment A,” said Schweich at the time. “The legal defense team is making very strong arguments to explain that Amendment A is constitutional.”
But Chief Justice Steven Jensen won the support of Judges Janine Kern, Patricia DeVaney and Mark Salter, with Judge Scott Myren opposed.
The decision was not entirely unexpected. It is a Conservative court with all judges appointed by Republican governors. That’s to be expected given that Republicans have been in office since 1979.
Governor Kristi Noem worked with Highway Patrol Superintendent Rick Miller and Pennington County Sheriff Kevin Thom to question the law. It is still unclear how much the state spent to overthrow the votes of its people.
Their argument was that the vote concerned more than one issue and was therefore unconstitutional.
District Court Judge Christine Klinger, appointed by Noem, agreed, adding that due to the wide range of languages used, she should have been ratified by a convention.
The Supreme Court was scrutinizing their decision, and while reporters and legal insiders waited for an announcement every Thursday morning – when the court usually publishes its opinion – it confused people by posting the opinion on a Wednesday afternoon shortly before a major holiday.
“It is clear that Amendment A contains provisions that cover at least three different subjects, each with different aims or purposes,” wrote the presiding judge Jensen in the majority opinion.
Although Amendment A was easily passed, 225,260 to 190,477, Governor Noem, law enforcement officers, Judge Klinger, and the state Supreme Court said it didn’t count.
It said that Amendment A related to recreational marijuana, medicinal marijuana and hemp, in violation of the one-subject rule. The cannabis people strongly disagree.
It was a “very flawed decision,” said Schweich, and a violation of the historical attitude of the state to allow voters to put topics and ideas on the ballot. He also said the time has come to review how the one-subject rule he endorsed has been interpreted by courts in South Dakota.
But that’s another topic for another day. First, the cannabis advocates will work with lawmakers who will simply bypass the vote and Legalization of leisure pot in session 2022.
Things are already moving forward, like the longtime Pierre reporter Bob Mercer noticed on November 17th:
“The South Dakota Legislature Board voted 12-0 to approve the report of the Marijuana Studies Committee. Senator Bryan Breitling said the panel’s 2022 session will see the panel’s 23 bills amending medical marijuana laws and two legalizing marijuana for people age 21 and older.
It’s something incredible to see older, far-right lawmakers line up to support marijuana legalization in South Dakota. But they saw how popular it was to be with medical marijuana wins in a landslide, and free time gaining solid majority support.
the Medical marijuana program launched even if the leisure debate continues. Cities are issuing permits for medical cannabis stores to open and state cards are running out.
The Flandreau Santee Sioux tribe, through its Native Nations cannabis business, has been selling cannabis since July 1st. Anyone who really wants to smoke or otherwise use cannabis can really do so.
Law enforcement, unsure how to act, turned down enforcement of marijuana laws this year. They didn’t want to get caught up in this legal mess.
What are you going to do in the coming weeks? Are they going to check people out for medical marijuana licenses? Will they wait for the legislature to act? Or will they look the other way until all of this is cleared up?
The cannabis advocates have collected signatures in order to Put recreational marijuana on the ballot again next year. They originally targeted a November 8 deadline, a year after the 2022 elections, but did not collect enough signatures – it took 16,961 to do that.
US District Court Judge Charles Kornmann found the deadline too shortwho have favourited Timeline in an unfair violation of First Amendment rights. The new deadline is May 3rd, and Schweich and Samuelson both say they will collect enough signatures.
So there are two ways forward. The Conservative, Republican-dominated legislature could legalize marijuana, in part to keep the measure out of the November 2022 vote. They know that it would likely attract pro-pot people to the election who would otherwise just stay home, and many of those voters could democratically stand up.
If a bill can’t be drafted and Noem’s approval – and she probably doesn’t want to campaign on the issue as she seeks a second term – we may be able to vote on it again.
If South Dakota voters approve recreational marijuana again, will their verdict stand this time? Or are we going to have a long, slow litigation about it?
Tom Lawrence has written for several newspapers and websites in South Dakota and other states, and has contributed to NPR, The London Telegraph, The Daily Beast, and other media outlets.