This November, South Dakota’s voters made it the first state to simultaneously approve separate ballot measures to legalize both medical and adult-use marijuana. South Dakota joins 14 other states that have legalized adult-use of marijuana, three of which also did so via their state’s 2020 ballots.
Immediately after gaining approval from a majority of South Dakota voters, however, the constitutional amendment to legalize adult-use marijuana became a source of controversy amongst some politicians and law enforcement officials.
On Nov. 20, the Pennington County sheriff and South Dakota Highway Patrol superintendent filed a lawsuit challenging the new law. They allege the change is actually a constitutional revision rather than an amendment and that it violates the state’s single-subject rule for initiatives. Single-subject rules are constitutional law precedents that claim legislation and amendments may only deal with one policy issue.
The state’s attorney general sees it differently. “The State denies that Amendment A includes a ‘multitude’ of different subjects,” Assistant Attorney General Grant Flynn recently wrote.
South Dakota Gov. Kristi Noem (R) openly opposed both marijuana-related initiatives before the election, claiming they were the wrong move for the state’s communities. On the lawsuit, she said, “In South Dakota, we respect our constitution. I look forward to the court addressing the serious constitutional concerns laid out in this lawsuit.”
State House Speaker Steven Haugaard (R-Sioux Falls) has also complained that the ballot amendment placed too many policy details in the constitution, leaving the state legislature with too little latitude to make adjustments. These complaints mirror those seen in other states where the electorate has sought to legalize marijuana through a ballot initiative.
By its nature, the regulation of legal marijuana markets is complex and involves a number of elements, such as taxation, licensing, testing, labeling, advertising and inventory control procedures. But state legislators have been slow to respond to voters and taxpayers’ interest in legalizing cannabis. Only in Illinois and Vermont have state lawmakers voluntarily taken on these issues and legalized marijuana through the legislative process. The nine other states that allowed recreational marijuana sales prior to the November election achieved their legalization through voter initiatives.
Polling conducted last year by Pew Research Center showed 67 percent of Americans favor the legalization of marijuana, including a majority of Republicans. In the states that have already legalized, a YouGov poll earlier this year found that large majorities think marijuana legalization has been successful and no more than 20 percent of respondents in any state think legalization has been a failure. With such broad public support for marijuana legalization, it is surprising or unfortunate that the public has had to resort to the initiative process for policy change in most states.
Single-subject rules are a common basis for opponents to challenge any type of ballot initiative and were the basis for disqualifying Nebraska’s medical marijuana initiative from the state ballot earlier this year. But single subject rules are only the start of the roadblocks that can be thrown up against voter initiatives.
The appropriate time to challenge ballot initiatives, if at all, is before they qualify to be on the ballot, as was done in Nebraska. It is unusual to mount these challenges in face of the expressed will of voters. In fact, when Arizona lawmakers gutted that state’s approved medical marijuana initiative in 1996, voters responded by passing a new initiative that forbade lawmakers from changing approved initiatives.
The best course of action for South Dakota at this time is to implement the new marijuana laws with reasonable safeguards tailored to the needs of the state. It is crucial that the legal marijuana market functions safely and efficiently without being captured by deep-pocketed special interests.
Reason Foundation has provided a conceptual framework for marijuana regulation that could satisfy the will of voters while safeguarding against a number of issues state lawmakers and stakeholders may be concerned about. If the policies are properly implemented, South Dakota could establish the most free-market marijuana program in the country while pushing out dangerous black-market actors.