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South Dakota high court voids recreational pot law

Recreational marijuana supporters are circulating a new petition for a 2022 ballot measure that will avoid the legal defects that doomed the cannabis law approved by 54% of South Dakota voters in 2020.  

(CN) — Dealing a major setback to the push to legalize recreational cannabis in more red states, the South Dakota Supreme Court on Wednesday upheld a lower court ruling that struck down a voter-backed marijuana law as unconstitutional.

In a 4-1 ruling, the state’s high court sided with opponents, including the state’s Republican Governor Kristi Noem, who argued the 2020 ballot measure covered too many unrelated subjects in one proposal in violation of the state Constitution.

Approved by 54% of voters last year, Amendment A created a comprehensive framework for regulating the cultivation and sale of recreational cannabis to adults at least 21 years old. It also required the state Legislature to enact new regulations for medical marijuana and hemp, a non-psychoactive form of the cannabis plant.

"It is clear that Amendment A contains provisions embracing at least three separate subjects, each with distinct objects or purposes," Chief Justice Steven Jensen wrote in the majority opinion.

In a statement Wednesday, Governor Noem explained that this ruling will not affect a separate ballot measure that legalized medical marijuana in the state last year. The governor said her administration has already started implementing that program, and the first batch of medical marijuana cards have been issued to eligible South Dakotans.

But the governor added that she has a duty to ensure ballot measures conform to the requirements of state law.

“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. “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.”

Highway Patrol Superintendent Col. Rick Miller and Pennington County Sheriff Kevin Thom filed the lawsuit challenging the law. The high court found those officials lacked standing to sue, but because the governor authorized and supported their suit, the court concluded that cured any standing defect.

Matthew Schweich, campaign director for South Dakotans for Better Marijuana Laws, called the ruling “extremely flawed” in a statement Wednesday.

“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,” Schweich said, adding that it was “disrespectful” for the high court to assume voters were “intellectually incapable of understanding the initiative.”

Justice Scott Myren, whom Noem appointed to the high court in January, partly dissented from the majority opinion, arguing that the law should be upheld because it actually addressed only one subject — a comprehensive plan for the “legalization, regulation, use, production, and sale of marijuana and related substances.”

To support his position, Myren cited a long history of “dual regulation” of marijuana and hemp in the United States dating back to the Marihuana Tax Act of 1937.

But his colleagues countered that the state’s Constitution specifically forbids “logrolling” several subjects like medical marijuana, recreational cannabis and hemp into one ballot measure because it forces voters to “decide on more than one separate and distinct proposition with a single vote.”

A farmer seeking to ensure the state Legislature creates a legal framework for growing and selling hemp in South Dakota “could not do so without voting in favor of broadly legalizing marijuana,” Chief Justice Jensen wrote for the majority.

A separate 2020 ballot measure that only authorizes medical marijuana was passed by a higher margin, 70% compared to 54%, last year.

Justice Myren argued the majority drew the wrong conclusion from those outcomes by pointing out that medical marijuana appears more popular among voters than recreational pot.

“The significant point is that both amendments passed, one handily and one comfortably. Both, therefore, not just one, are entitled to the ‘strong presumption of constitutionality after adoption by the people,” Myren wrote, citing the South Dakota Supreme Court’s 1993 ruling in Barnhart v. Herseth.

Supporters of the comprehensive marijuana law had asked the court to uphold parts of the law that legalized recreational marijuana and sever other parts, instead of striking the law down entirely.

The majority declined to take that route, arguing that doing so could give future ballot measure sponsors an incentive to continue proposing unconstitutional ballot questions..

The now voided law's sponsor, South Dakotans for Better Marijuana Laws, has already started a petition for a 2022 ballot measure that asks the state’s voters to legalize recreational marijuana. The measure does not include proposals related to hemp or medical marijuana that gave rise to the successful legal challenge against Amendment A.

South Dakota was one of four states to approve recreational marijuana in November 2020, along with New Jersey, Arizona and Montana. Eighteen states and the District of Columbia have legalized recreational cannabis.

A 2020 Gallup Poll found that 68% of Americans support legalizing recreational marijuana, a two-fold increase since 2003.

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