SIOUX FALLS, S.D. — The South Dakota Supreme Court on Wednesday upheld a lower court’s ruling that nullified a voter-passed amendment to the state constitution that would have legalized recreational marijuana use.
Gov. Kristi Noem instigated the legal fight to strike down the amendment passed by voters in November. Though the Republican governor opposed marijuana legalization as a social ill, her administration’s arguments in court centered on technical violations to the state constitution.
The high court sided with those arguments in a 4-1 decision, ruling that the measure — Amendment A — would have violated the state’s requirement that constitutional amendments deal with just one subject.
“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, which found recreational marijuana, medical marijuana and hemp each to be separate issues.
About 54% of voters approved the constitutional amendment last year. But Highway Patrol Superintendent Col. Rick Miller sued on Noem’s behalf. Pennington County Sheriff Kevin Thom also joined the lawsuit. The high court ruled that the law enforcement officers did not have standing to sue, but because Noem ordered Miller’s suit, they treated it as if Noem brought the lawsuit herself.
Noem praised the decision, and noted that it would not change how she implements a separate, voter-passed law that legalizes medical marijuana. That law has already taken effect.
“South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about,” she said in a statement. “We do things right — and how we do things — matters just as much as what we are doing.”
The state Supreme Court’s decision upheld a circuit judge’s ruling in February. Advocates for pot legalization appealed, arguing that the Supreme Court should dismiss the legal challenge because it overturned the will of voters and dampened their future ability to enact laws through the ballot box.
Matthew Schweich, the campaign director for South Dakotans for Better Marijuana Laws, called the ruling “extremely flawed” and reliant on “a disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative.”
In the high court’s majority opinion, Jensen argued that the multiple subjects of the constitutional amendment — recreational marijuana, medical marijuana and hemp — risked forcing a choice on voters who supported legalizing one, but not the others. He found the ballot measure risked political “logrolling” — a practice in which several topics are included in one proposed law to gain broad support.
Thom, who is the sheriff in the state’s second-most populated county, pointed out that the ruling actually upheld a previous constitutional amendment, passed by voters in 2018, that requires constitutional amendments contain a single subject.
“It is critically important to defend our state constitution, and I appreciate the High Court clarifying these issues,” he said in a statement. “I am pleased the Court sided with me in upholding the will of the voters.”
The one dissenting voice, Justice Scott Myren, wrote that the ballot measure proposed a “comprehensive plan” for marijuana legalization and found no evidence voters were confused about what they were supporting. He urged the court to err on the side of upholding such voter-passed laws, which have been a longstanding feature — and source of conflict — in South Dakota.
“This bold experiment in citizen-led direct democracy began before statehood,” Myren wrote.
Pot legalization is not going away in South Dakota. Marijuana advocates are trying to bring recreational marijuana back to voters next year through a ballot measure that would instruct the Legislature to legalize it. Lawmakers are also considering legalizing pot for adults in the upcoming legislative session.
“This is a setback,” Schweich said of Wednesday’s ruling. “But the important thing is that we have the will of the people on our side. Eventually, the will of the people will be upheld.”
Marijuana has become broadly accepted around the United States, with a Gallup Poll last year showing 68% of Americans favored legalization. South Dakota was among four states that month to approve recreational marijuana, along with New Jersey, Arizona and Montana. Fifteen states and the District of Columbia have done so.
Opponents of marijuana legalization used a similar legal strategy to stave off a marijuana legalization proposal in Nebraska last year. Only in that instance, the ruling stopped the ballot measure from ever going to a vote.