SIOUX FALLS, S.D. (KELO) — One South Dakota judge ruled voters violated the state constitution when they approved legal marijuana via Constitutional Amendment A by a 54%-46% vote in the 2020 General Election.
Monday’s ruling by Sixth Circuit Judge Christina Klinger, who was appointed by Gov. Kristi Noem (R-S.D.) in 2019, is just the latest chapter in a long story involving South Dakota ballot measures and the issue of marijuana.
In fact, you can trace the people’s power on voting for and against legislation back to the 1800s. According to the South Dakota Secretary of State’s website, “South Dakota has the distinction of being the first state in the Union to provide for popular initiative and referendum for enacting and rejecting legislation” first starting in 1898.
In 1988, South Dakota voters passed then Constitutional Amendment A which removed the legislature from the initiative process. Since then, more and more changes have been made to the initiated amendment process. Even more changes are currently being discussed by lawmakers in Pierre.
As for the current battle over legal marijuana, it is likely headed to the South Dakota Supreme Court for a final decision whether Amendment A is constitutional or unconstitutional. Below you can find a KELOLAND News timeline of how it got to this point.
Feb. 8th: Sixth Circuit Judge Christina Klinger issues ruling against Constitutional Amendment A. She wrote: “Allocating revenue from an excise tax of marijuana sales, forbidding differing professions from disciplining their members, and including a provision compelling the legislature to pass hemp, which is different than marijuana, are not part of the ‘single scheme’ of legalizing marijuana.”
Brendan Johnson, a former U.S. attorney for South Dakota, who sponsored the Amendment A told KELOLAND News his team was “preparing our appeal to the South Dakota Supreme Court.”
Feb. 5th: Senate Bill 86, which would “revise certain requirements regarding the review of initiated amendments to the Constitution” passes Senate State Affairs Committee 8-1.
Sponsor Rep. Will Mortenson (R-Pierre) said Amendment A uncovered a “mess” with public money being used for legal expenses on both sides. Mortenson also pointed out the ballot measure process in South Dakota has been subject to litigation three consecutive cycles in a row, costing South Dakota taxpayers. SB 86 aims to end the potential legal battle before signatures are earned and initiated measures are placed on the ballot. On Feb. 9, the bill passed the Senate 31-3.
Jan. 27th: Four sets of attorneys argue during a Hughes County circuit court hearing on whether the Constitutional Amendment A voters approved in November legalizing recreational and medical uses of marijuana violates the South Dakota Constitution.
South Dakota voters approved Constitutional Amendment A, which would legalize, regulate and tax marijuana in the state, by 54%-46% vote (225,260 to 190,477). Governor Kristi Noem (R-S.D.) is challenging the newly passed law in circuit court and part of the lawsuit focuses on the single-subject issue for constitutional amendments.
Voters also passed Initiated Measure 26, which would “legalize marijuana for medical use” by 69%-31% (291,754 to 125,488). The medical marijuana process continues to move forward in South Dakota.
In 2018, South Dakota voters also passed Amendment Z by a 62%-38% vote (195,790 to 117,947). Amendment Z which amended the South Dakota Constitution to “establish that future proposed constitutional amendments may embrace only one subject, and require proposed amendments to be presented and voted on separately.”
There is nothing in state law currently explaining how the single-subject law should be applied. Lawmakers said in 2018, the “courts would decide” what would be considered a single-subject and what wouldn’t be considered a single-subject.
Along with Amendment Z, voters also passed Initiated Measure 24 by a 56%-44% vote (174,960 to 140,172). IM 24, which sought to “ban individuals, political action committees and others outside of South Dakota from making contributions to ballot question committees,” was later struck down by a federal judge in Aberdeen for violating First Amendment rights.
Medical marijuana makes its second appearance on a South Dakota ballot. Initiated Measure 13, which would “authorize the possession, use and cultivation of marijuana by and for persons with specified debilitating medical conditions registered with the Department of Health” made the 2010 ballot. South Dakota voters voted 63%-36% not to pass IM 13 (199,552 to 115,552).
Medical marijuana makes its first appearance in front of South Dakota voters. Initiated Measure 4, which would “provide safe access to medical marijuana for certain qualified persons” qualifies for the 2006 ballot. South Dakota voters voted 52.3%-47.7% (173,178 to 157,953) not to pass IM 4.
In 1988, South Dakota voters passed Constitutional Amendment A removing the legislature from the initiative process. It passed 52%-48% (153,168 to 140,188).
It changed the state constitution to eliminate a requirement that an initiative be submitted to the legislature for approval before placement on the ballot.
In 1972, the state constitution was amended to allow constitutional changes by initiative as well.
According to the Secretary of State’s website, “South Dakota has the distinction of being the first state in the Union to provide for popular initiative and referendum for enacting and rejecting legislation. This was accomplished by a constitutional amendment approved in 1898.”