On November 3, 2020, South Dakota voters approved to legalize cannabis for both recreational (Amendment A) and medical (IM26) purposes. Long-believed to be one of the last states to legalize marijuana, the Mount Rushmore State’s citizens voted to legalize recreational marijuana by an 8 percentage point margin (54% YES 46% NO). Voters also overwhelmingly approved of medical marijuana by a margin of 40 percentage points (70% YES 30% NO). Many questions have arisen since Election Day, and many of those questions remain unanswered due to legal complications. This blog addresses some of the many questions lingering for the judicial system, the South Dakota legislature and those looking at partaking in the marijuana business.
1. WHAT IS THE DIFFERENCE BETWEEN THE TWO INIATED MEASURES?
The laws of South Dakota allow its voters to file petitions upon receiving the requisite amount of signatures in proper form to put laws to a vote by the people and not by the state’s legislative body. These statewide ballot questions come in three forms: (1) Initiated Measures, which are designed by the petitioners of the proposed law, (2) Referred laws, which asked the public to vote either in support or in opposition to a law or bill previously addressed by the legislature, and (3) an amendment to the South Dakota Constitution. Petitions to hear both medicinal and recreational marijuana legalization were submitted in September 2019 and certified for the 2020 election on November 3.
AMENDMENT A: Persons age 21 years and older will be able to legally possess up to 1 oz. of marijuana in flower form and up to 8g of marijuana concentrate (hashish, hash oil, wax, shatter, resin and edibles). The amendment sets forth basic guidelines for regulating growers, dispensaries, etc. Individual counties may pass ordinances prohibiting the commercialization of marijuana. The Department of Revenue has until April 1, 2022 to establish a regulatory framework for all aspects of marijuana licensing and taxation.
IM26: Persons with a physician-certified, debilitating medical condition will be able to legally possess up to 3 oz. of marijuana and a yet-to-be-determined amount of “cannabis products” (such as edibles, oils, tinctures, etc.) for medical purposes. These qualified persons may also grow up to 3 plants at a time as well as possess marijuana grown from the 3 plants. IM26 requires many regulations to be established by the South Dakota Department of Health regarding the proliferation of medical marijuana, and governing bodies may prohibit marijuana from being smoked in public places. Landlords are not required to allow their tenants to grow marijuana. IM26, as an initiated measure, will not become effective until July 1, 2020 as per SDCL 2-1-12.
2. LEGAL ISSUE #1: WHEN DOES AMENDMENT A BECOME LAW?
Amendment A is a constitutional amendment; it is not an initiated measure. Article XXIII of the South Dakota Constitution sets forth how amendments are to be passed. According to Sec. 3 of Article XXIII, the South Dakota Constitution may only be amended upon a majority vote by the electorate (voters). The vote count and ratification process, also known as “canvassing,” occurs within 10 days of Election Day. In this case, Amendment A was canvassed and the official vote approving Amendment A was ratified on November 10, 2020. However, in 2017, the South Dakota legislature passed a law stating that constitutional amendments as well as initiated measures and referred laws only take effect July 1 of the year following canvassing.
The news media has widely reported marijuana isn’t legal until July 1, 2021, quoting state officials who are relying on South Dakota Codified Law 2-1-12. Many attorneys and legal scholars believe the language of SDCL 2-1-12, which schedules the effective date of constitutional amendments, is unconstitutional. The argument basically claims our state representatives cannot dictate when the Constitution takes effect. I believe they are right as our Constitution is the supreme state law of our land. If the legislature are allowed to do so, opponents of marijuana legalization could pass a law … in this forthcoming 2021 session … establishing the effective date of Amendment A far into the future so as to prevent the will of the voters taking effect upon the canvassing of the vote. Therefore, a sound legal argument exists in that Amendment A is effective now and possessing marijuana is legal as you read this blog. Many criminal cases involving illegal marijuana and hashish possession are being currently under fire and being challenged.
3. LEGAL ISSUE #2: ARE POLICE LEADERS TRYING TO THROW OUT AMENDMENT A AND THE LEGALIZATION OF RECREATIONAL MARIJUANA?
Yes. Opposition to Amendment A prior to Election Day was mostly silent. Nearly everyone told me they thought legalized marijuana would fail like it did in 2006 and 2010. They were very wrong. On November 20, 2020, two lawsuits were filed in Hughes County, South Dakota, in an attempt to contest Amendment A’s passage. The lawsuits do not allege voter fraud, but claim Amendment A covers “more than one subject,” which is prohibited by a previous constitutional amendment passed in 2018. They point to taxation, penalty limits, etc., as being multiple subjects within the text of Amendment A. Those in support of Amendment A maintain it only covers one subject…cannabis. The lawsuits also allege the South Dakota Constitution does not allow the introduction of a new subject, such as cannabis, and Amendment A goes beyond the purposes of why we pass constitutional amendments.
Ironically, South Dakota law requires Amendment A to be defended by the South Dakota Attorney General’s Office. The lawsuits, supported by the Governor and supposedly funded with public money, will produce much controversy and may end up decided by the South Dakota Supreme Court. If you’re itching to get into the cannabis business or are making plans to possess, consume cannabis here in South Dakota, I suggest you wait until this legal battle’s winner is determined as law enforcement is still arresting people for marijuana possession.
I will keep all of you updated as developments occur!