Against Voter Will: How South Dakota Took Away Legalized Cannabis

Since Connecticut dropped in summer 2021, the main line has been that there are 18 legalized states for recreational cannabis use in the US. But there should be 19, and one of them should be South Dakota. The story hasn’t gotten as much press as it should have, as most seem not to realize that South Dakota actually passed a ballot measure, which legalized cannabis. Except it didn’t stick, because the government took it away.

How nuts is it that South Dakota legalized cannabis, just to have the government take it away? Not an indication of American democracy! Luckily, with the new cannabinoid market, even illegal states can have access to cannabis products, like delta-8 THC, THCV, and HHC. The holidays might be over, but the deals haven’t ended. Check out what we have on offer, and find what works best for you.Remember to subscribe to The THC Weekly Newsletter for deals on legal cannabis products, as well as all the latest news and industry stories. Also save big on Delta 8Delta 9 THCDelta-10 THCTHCOTHCVTHCP & HHC products by checking out our “Best-of” lists!


What’s the story with South Dakota and legalized cannabis?

On November 3rd of 2020, during the US national and state elections, South Dakota voters had the chance to cast their ballot on the question of whether cannabis should be legalized in South Dakota. Residents were able to vote on two measures, Measure 26, and Amendment A.

Measure 26 was an initiative to legalize medical marijuana and create a medical marijuana program. Amendment A was an initiative for legalized recreational cannabis in South Dakota, which also had additional requirements for the state to legalize medical cannabis, and to institute hemp sales by April 1, 2022. Recreational cannabis would have gone into effect by July 1st, 2021.

Measure 26 was officially certified on December 19th, 2019, by the South Dakota Secretary of State to be on the 2020 ballot. Amendment A also found itself on the ballot. And voters, indeed, were able to vote on both at once. Measure 26 passed with 70% of the vote, making it clear South Dakota most definitely wants a medical program. Amendment A passed as well with 54% of the voting population agreeing it was time for recreational cannabis to be legalized in the state.

legalized cannabis

This is interesting because it would have made South Dakota the very first state to legalize medical cannabis and recreational cannabis at the same time. And technically, it most certainly did, as per the ballot vote mentioned above. So, there should be 19 legalized states (Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Massachusetts, Michigan, Montana, New Jersey, New Mexico, New York, Nevada, Oregon, Washington, Vermont, Virginia, AND South Dakota) except there aren’t, there are only 18, because South Dakota had its recreational cannabis win taken away.

No democracy in South Dakota!!!

South Dakota’s voters made it clear they were in favor of both legalized medical cannabis, and recreational cannabis. By votes of 70% and 54% respectively, both measures were passed on the same day. Unfortunately, sometimes, even when the people are directly given the choice, governments don’t always respect this, and such is the case with South Dakota.

Nearly immediately after South Dakota voters passed Amendment A, on November 20th, 2020, two law enforcement officials: Sheriff Kevin Thom of Pennington County, and Superintendent Rick Miller of the South Dakota Highway Patrol, filed a lawsuit to invalidate Amendment A. The basis of the suit was that South Dakota has a law for single-subject ballot measures only, meaning a ballot measure cannot cover more than one item legally. Amendment A dealt with legalizing recreational cannabis, legalizing medical cannabis, and instituting hemp sales.

They also argued that it acts not as an amendment, but as a revision to an existing law, which requires a constitutional convention, rather than an amendment. As expected for a population that knowingly voted it in, there was a very negative response to the lawsuit.

But it gets stickier. This wasn’t two random law enforcement guys who just couldn’t stand the idea of weed being legalized. It was actually a conspiracy between them and leading co-conspirator Kristi Noem, the governor of South Dakota. This was made public on January 8th 2021, when she issued an executive order making it clear she was behind the whole thing, and had actually directed law enforcement to file the suit. Noem never wanted Amendment A, and had made that clear before the vote.

Though it seems like simply seeing this connection should have raised grave concerns about governor Noem’s position, and whether she should be allowed to keep it, it instead was upheld, and arguments were heard on the case on January 27th, 2021. The presiding judge in the case? Christina Klinger, appointed by none other than Governor Noem. By February 8th, 2021, Klinger ruled that the measure was unconstitutional in that it violated the single-subject rule, and that it was a revision that was needed anyway, not an amendment.

South Dakota

This ruling was appealed, bringing the case to the South Dakota Supreme Court. The ruling was upheld as unconstitutional on November 24th, 2021, even against arguments that invalidating it would go directly against the will of the people.

This means that even though the actual voters of the state made clear that the majority favored this legal change, (in a ballot approved at the time by the state), the government of South Dakota was not willing to accept this, and decided instead of updating laws accordingly (however it would have to be done), to go against the will of the voting public. This is a glaring example of the lack of real democracy in America, and its shocking that more has not been done to fix this situation for voters.

The campaign director for South Dakotans for Better Marijuana Laws, Matthew Schweich stated how the ruling is “a disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative.” He went on to say,

“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.”

What else happened?

On January 27th 2021, the House of Representatives (possibly also at the behest of Noem) initiated HB 1100, which looked to stall the medical marijuana bill which was supposed to be delivered by July 2021. By using excuses like complication of marijuana laws, current Covid issues, and ongoing litigation over Amendment A, the House sought to delay Measure 26. It tried to change the date for medical cannabis to become effective from July 1st 2021, to January 2022.

On March 8th, 2021, the Senate then amended the bill to allow the possession of up to an ounce of marijuana (likely as a way of trying to recoup some voter love after dismissing a voter-approved law). The House didn’t agree to this, causing the need for a conference committee, where HB 1100 died. This meant that while no amount of cannabis was legalized to have, it also didn’t stall the medical program from starting on the intended day.

South Dakota cannabis

Marijuana advocates aren’t just going to stop, of course, and an incident like this makes clear what’s coming in the future. Besides the fact that Noem might have an issue keeping her seat come next election, there will likely be a new initiative at the next election, no doubt in line with legal standards to keep the same thing from happening again.

And its not just voters. Just as the Senate had tried to amend HB 1100 to include possession laws, plenty of the government gets the message that its time for change. Laws are also being considered in the legislature that would allow an adult-use market.

Conclusion

South Dakota represents the idea of legal loopholes at their worst. While we often use loopholes to get around unfair legislation, they can also be used to support unfair legislation, or even drown wanted legislation. Overall, the story is an embarrassment to the United States at large, and Noem is an embarrassment for South Dakota.

I expect that unless she takes a major 180º turn, and she might, that she’ll be evicted from office in 2023. Let’s hope! And let’s hope that legalized cannabis comes soon to South Dakota, as it did vote it in, after all.

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DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.

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South Dakota Supreme Court Squelches Legalization Initiative

Cannabis advocates in South Dakota saw a real victory in last year’s elections, as voters approved an amendment to the state constitution legalizing adult use. But it was immediately met with legal challenge. And now the state’s top court has definitively squelched it.

The South Dakota Supreme Court on Nov. 24 ruled that the process by which the amendment passed was itself unconstitutional. It was clear, however, that the real motivations behind the legal challenge were related to cultural conservatism and the cannabis stigma.

Legalism Against Legalization 

Understanding the stratagem used here requires getting into the legal weeds a little. In the 2020 election, voters in the Mount Rushmore State passed both a ballot measure and constitutional amendment

The first, Initiated Measure 26, sought to legalize medical marijuana for qualifying patients. The second, Constitutional Amendment A, would have legalized cannabis for all state residents 21 years or older. Personal possession was set at one ounce, with provisions for retail sales to be taxed at 15% and regulated by the state Department of Revenue. Amendment A also required the Legislature to pass laws regulating medical marijuana and the sale of hemp products. 

Measure 26 passed with 70% of the vote, while Amendment A received 54%—despite a vigorous campaign against both by the state’s political and medical establishments.

Immediately following the election, a case challenging Amendment A was brought by two law enforcement figures—state Highway Patrol superintendent Rick Miller and Pennington County Sheriff Kevin Thom. The case argued that the means by which Amendment A was approved violated the requirements for amendments to the South Dakota constitution

There was no doubt that the pair brought the suit as proxies for Gov. Kristi Noem, who had vocally opposed Amendment A. Noem stated explicitly in a January 2021 executive order that she opted to “delegate” Miller to bring the litigation on her “behalf.”

 In February, a state circuit court in Pierre struck down the amendment.  

The amendment was found to have violated the “single subject” requirement of Article 23, section 1 of the state constitution, because it dealt with three “subjects”—adult-use cannabis, medical marijuana, and hemp. Ironically, that provision of the constitution was itself approved by the voters in 2018’s Amendment Z, intended to prevent voters from being confused or conflicted by multiple provisions to the same amendment.

The ruling further found that the amendment violated Article 23, section 2, requiring a constitutional convention for “revisions” of the charter. Judge Christina Klinger found that the amendment was significant enough for this provision to kick in, writing: “Amendment A is a revision as it has far-reaching effects on the basic nature of South Dakota’s governmental system.”

The circuit court ruling has now been upheld by the state Supreme Court in a 4-1 decision—although, as the Sioux Falls Argus Leader notes, the high court only ruled on the “single subject” argument. It did not address the argument that the amendment should have been approved by a constitutional convention.

“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.

Upon issuance of the high court ruling, Gov. Noem tweeted: “South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision on Amendment A is about. 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.”

The Fight Goes On

While the decision nullifies Amendment A, the ballot measure mandating a medical marijuana program is not affected—as Noem made clear in a tweet. Noem campaigned against both Amendment A and Measure 26, but now says she is OK with medical marijuana assuming it is “approved by the FDA”—something not likely to happen soon, needless to say. Despite this supposed support, she’s attempted to bottleneck the medical marijuana program with harshly restrictive regulations; the matter is now being contended between her office and the Legislature.

Matthew Schweich, campaign director for South Dakotans for Better Marijuana Laws, characterized the high court ruling as “extremely flawed,” and based on “a disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative.”

“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 in a statement quoted by the Associated Press.

This is not the end of legalization efforts in South Dakota. Advocates are now attempting to bring adult-use cannabis back to voters next year through a ballot measure that would instruct the Legislature to legalize it (bypassing the constitutional dilemmas). A signature-gathering campaign for the new ballot initiative was launched in October, after the Secretary of State approved the text for circulation. 

And state lawmakers are already considering passage of a legalization measure in the upcoming legislative session. The Adult-Use Marijuana Study Subcommittee, which was established to examine the question in June, voted in October to recommend a bill allowing those over 21 to purchase up to an ounce—essentially the same provisions that were in Amendment A.

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America Is Cannabis Friendly – It’s Official

To actually say ‘America is cannabis friendly’, has a double meaning. Not only does it refer to the changing legalization policies within the borders of the US, but it also has meaning in terms of the continent of North America, and the inclusion of South America as well. In fact, no matter how the line is read, it’s true on all levels. So, let’s take a look at the new ‘America’, as 2020 comes to a close, and how new cannabis policies have made ‘America’ so cannabis friendly.

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Let’s start with the US prior to elections

In what is one of the biggest turnarounds of the past century, the country that spearheaded the global illegalization of cannabis, is now on the brink of being cannabis legal. Yes, after this past election, America is officially cannabis friendly. So, what were the election results that shifted everything, and what does this now mean for the US of A?

First let’s look at where the US was, going into the elections. Prior to the beginning of November, 12 locations in the US had recreational cannabis policies, and one US territory, Guam. Alaska, California, Colorado, Illinois, Michigan, Massachusetts, Nevada, Oregon, Washington, Maine and Vermont all have open markets, with Maine and Vermont only passing bills to form regulated markets in October of this year. Then, of course, there’s Washington DC, the 12th location, where cannabis is legal to use and cultivate, but cannot be bought or sold. DC is unlikely to get a more open policy until recreational cannabis is legalized federally, since it’s home to the federal government.

Prior to the election, 35 states (counting Washington DC) had legal medical marijuana policies, although about half limit the use of THC. Guam, Puerto Rico and the Virgin Islands also have medical marijuana policies. States that already had these policies are: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Washington DC*, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington, Virginia, and West Virginia.

cannabis election results

Election results

As of the November elections, these numbers have changed. Starting with recreational, there are four new additions to the legal recreational states: Arizona, Montana, South Dakota and New Jersey. Arizona passed its recreational cannabis bill through proposition 207 with a vote of approximately 60%-40%. The new law allows use and cultivation at 21 years of age and up, establishes a 15% excise tax (among other point of sale taxes which are likely to be levied), changes criminal penalties for marijuana, and works to expunge previous marijuana offences.

Montana passed its recreational cannabis bill through proposition 190 with a vote of approximately 57%-43%. This bill legalizes small amounts of cannabis for use for adults 21 years of age and older. The bill also introduces a 20% tax on non-medical cannabis, and allows for those in prison on cannabis charges to apply for resentencing or expungement of their sentences. It doesn’t seem like this will be automatic in Montana, although I expect it might change (otherwise people will be sitting in prison for non-crimes, which could end up opening the state to large amounts of litigation).

New Jersey was the third state to legalize recreational cannabis use for adults, a bill that was passed through Public Question 1, with a vote of approximately 67%-33%. The bill allows those 21 years or older to partake, institutes a sales tax (undetermined), and the ability for individual areas to introduce local taxes. The market is to be overseen by the Cannabis Regulatory Commission, which was created prior to this legalization in 2019, originally to oversee the medical cannabis program for the state.

South Dakota passed Amendment A to legalize recreational cannabis with a vote of approximately 54%-46%. This bill amends the South Dakota constitution for legalizing, regulating, and taxing cannabis. The recreational legalization is actually being legally contested currently.

But South Dakota was on double duty for this election, because not only did it legalize recreational, it also legalized medical in the same election. South Dakota passed its medical bill through Measure 26, which had a vote of approximately 70%-30%. The bill allows for patients with debilitating conditions to receive cannabis-based products, including minors. The law covers cultivation, use, manufacture, and delivery for residents of the state. As of right now, the official date for legalization for both recreational and medical, is July 1st, 2021.

Mississippi is the last entry to the list of changes. The state actually had not one, but two competing initiatives for medical legalization on the ballot, Initiative 65, and Initiative 65A. 65 was a citizen-initiated measure which beat its government-initiated counterpart by approximately 74%-26%. The overall vote of whether to legalize medicinally or not came out to approximately 68%-32%. The measures don’t sound too different, but 65 proposed more actual details. It allows patients with debilitating conditions to access cannabis products. These products would only be available by licensed treatment centers.

legal cannabis

The current US breakdown

Now, let’s look at what we’ve got. We went into this last election with 11 US states, Washington DC, and Guam already having recreational legalization policies. Now, it’s 15 states with the inclusion of New Jersey, Montana, Arizona, and South Dakota, plus DC, and one territory.

In terms of medical, we went into the election with 34 states, Washington DC, and three territories (Guam, Puerto Rico, and the Virgin Islands), having medical policies. This was increased by two, with Mississippi and South Dakota joining in, to equal 36 states, DC, and three territories.

But there’s one more thing to consider. There are some states that haven’t gone as far as legalization, but have instituted decriminalization policies for cannabis. Some states that instituted these policies went on to legalize fully, others are on the way (like Virginia), or just staying decriminalized for now. The following are decriminalized states for recreational use: Connecticut, Hawaii, Maryland, Mississippi, New York, Ohio, Delaware, Missouri, New Hampshire, North Carolina, Virginia, Minnesota, Nebraska, New Mexico, North Dakota, and Rhode Island. These states all have their own decriminalization policies, some more lax than others, but in all these states it was decided that cannabis was not something that warranted criminal prosecution (or at least, less of it.)

What this means is that in a country with 50 states, one district, and five major territories – US Virgin Islands, American Samoa, Guam, Puerto Rico, Northern Mariana Islands – (making for 56 locations total), over 1/3 of these locations allow for recreational adult-use cannabis. 15 out of 50 states, one district out of one district, and one territory out of five. When looking at medical, it becomes 40 locations out of 56 locations with 36 out of 50 states, one district out of one district, and three territories out of five.

Perhaps, the better way of looking at it though is to add all the recreational legalizations, with all the recreational decriminalizations. In that case, subtracting territories, we’re looking at 16 legalized states/locations (including DC) + 16 states with decriminalization policies, and that equals 32. This means that 32 out of 51 locations don’t really want to prosecute you for cannabis (for the most part, and not including anything other than possession and use). This is well over half the states/locations of the country.

Now, what about adding in the states that are legal for medical use, but aren’t legal for recreational use, or decriminalized? Then we’re looking at the addition of Arkansas, Florida, Louisiana, Michigan, Minnesota, Oklahoma, Pennsylvania, Utah, and West Virginia. That’s nine more added on, making a total of 41 states/locations that allow recreational cannabis use, medical cannabis use, some level of recreational cannabis decriminalization, or a combination of the above. That’s 80% of the country. And that certainly backs up the idea that America is cannabis friendly.

The greater ‘America’

America is cannabis friendly

Now that we’ve established that America is cannabis friendly in terms of the US, let’s take a step back. ‘America’ does not include just the US, so let’s look at the entire continent of North America. We’ve got Canada, which legalized cannabis for recreational use in 2018, and Mexico , which legalized cannabis for recreational use through its court system in 2018 as well, but which is still waiting on its governmental legislation to go in line with its supreme court rulings. This deadline has been pushed back several times, with the most recent due date of December 15th being pushed off once again until April of 2021. But regardless of that, the country has been legalized, and that means that the US, and its majority of states that are marijuana-friendly, is sandwiched between the two other countries of the continent, both of which are cannabis legal countries. This makes North America as a whole the most cannabis friendly continent in the world.

Taking it back one more step allows the inclusion of Central and South America. While there aren’t too many recreational legalizations in the area, Uruguay is most certainly there, and it’s the very first country to legalize for recreational use in the world. Colombia is there too, and that country is in the process of pushing through a recreational legalization policy as well. Then there is a whole slew of countries that allow for medicinal use, or have personal use laws for recreational use, like: Argentina, Chile, Brazil, Peru, Venezuela, Ecuador, Costa Rica, etc. In total, when looking at all the countries that have personal use laws, or medical legalizations, you’re looking at nearly all of South and Central America. And this further backs up the idea that America is cannabis friendly, and in fact, the most cannabis friendly part of the world.

Conclusion

Laws move slowly, and so does setting up regulatory frameworks for new industries. But if you take a look at ‘America’ as a whole, it’s happening, and way faster than in other places. The recent US election highlights how close the US is getting to a federal legalization, but when looking at the continent of North America, or the Americas in general, it really becomes that much more apparent that America is very cannabis friendly. Perhaps the best example is bringing it down to North America, where all three of the countries that form the continent – Canada, the US, and Mexico – are all legal for recreational use, either federally, or partially by state.

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Resources

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2020 US Elections – Voting on Cannabis

The 2020 US Presidential election took place last night, and the results have yet to be decided. American voters chose a new leader and voted on measures put forward by each state. This election brought a record turnout; thus, US lawmakers got a better idea of what the American people actually want. So, they asked […]

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