South Dakota Supreme Court Hears Amendment A
Rex Wholster | Adobe Stock

South Dakota Supreme Court Hears Amendment A

The adult-use cannabis measure passed with 54% of voters casting their support in November.

April 28, 2021

The South Dakota Supreme Court will hear arguments April 28 regarding the constitutionality of the state’s adult-use cannabis amendment that voters approved in the November election.

The court’s hearing stems from a lawsuit challenging the constitutionality of Amendment A. The state-passed ballot measure  read: “An Amendment to the South Dakota Constitution to legalize, regulate and tax marijuana; and to require the legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use.”

Less than a month after voters approved the ballot measure with a 54.2% majority, Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Col. Rick Miller filed a lawsuit challenging Amendment A, arguing it violates the state’s one-subject rule, and the amendments and revisions article of the South Dakota Constitution.

The plaintiffs argued that Amendment A has five subjects: legalizing cannabis, regulating cannabis, taxing cannabis, requiring the South Dakota Legislature to pass laws regarding hemp and ensuring access to medical cannabis.

Commenting on the litigation, National Organization for the Reform of Marijuana Laws (NORML) Deputy Director Paul Armentano said: “Legalization opponents cannot succeed in the court of public opinion or at the ballot box. Thus, they are now seeking to overturn election results after the fact. Whether or not one supports marijuana legalization, Americans should be outraged at these overtly undemocratic tactics.”

South Dakotans for Better Marijuana Laws, the group behind Amendment A, filed a response in court on Dec. 7, arguing that the case should be dismissed because voiding Amendment A would overturn the people’s will. Citizens from that group also argued that Amendment A had one subject: cannabis.

On Jan. 8, Gov. Kristi Noem issued an executive order that allowed the legal challenge of Amendment A to proceed. In that order, Noem said, “The initiative process used to place Constitutional Amendment A on the ballot was not proper and violated the procedures set forth in the South Dakota Constitution.” Also, in that order, Noem said she instructed Miller to file the litigation against Amendment A on her behalf.

Noem’s executive order opened the door for Circuit Judge Christina Klinger to reject the voters’ will by striking down the approved adult-use amendment in a ruling she issued Feb. 8. Klinger said Amendment A violated South Dakota’s requirement that constitutional amendments be limited to just one subject.

Article XXIII of the South Dakota Constitution states: “No proposed amendment may embrace more than one subject. If more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately.”

In the conclusion of her ruling, Klinger said, “Amendment A is unconstitutional as it includes multiple subjects in violation of Article XXIII, and it is therefore void and has no effect. Furthermore, Amendment A is a revision as it has far-reaching effects on the basic nature of South Dakota’s governmental system. As a result, Amendment A was required to be submitted to the voters through the constitutional convention process set forth in Article XXIII.”

On Amendment A, the Supreme Court is considering a core filing that is 550 pages.