Will South Dakota Be the First State to Overturn a Cannabis Legalization Vote?

Voters in South Dakota made cannabis history in November 2020 as the first to pass ballot measures to legalize cannabis for medical and adult use at the same time. Now, just two months later, a lawsuit is heating up that raises the question: will the state make history again, as the first to see legal cannabis overturned? 

Just days after the November vote, Highway Patrol Superintendent Rick Miller and Pennington County Sheriff Kevin Thom filed a lawsuit against the more far-reaching ballot measure, Amendment A. (The suit, it’s worth noting, was listed on the homepage of the South Dakota Department of Public Safety website as of Sunday evening.) On January 8, Governor Kristi Noem, who opposes cannabis legalization, signed an executive order revealing that she, in fact, called for the lawsuit.

“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,” reads Noem’s executive order. From there, Noem notes that, on November 20, 2020, she “directed Colonel Rick Miller to commence the Amendment A Litigation on my behalf in his official capacity” and that such commencement is “consistent with my executive power.” Therefore, the order concludes, “the commencement and continued prosecution of the Amendment A Litigation is hereby ratified and affirmed in all respects.”

This is the first time a state’s governor has led an effort to overturn a cannabis legalization ballot measure passed by voters. (Former Maine Governor Paul LePage stalled the rollout of adult use, as Cannabis Wire has reported, but didn’t go as far as Noem in his opposition.) While the involvement of Noem has complicated how the case will unfold, at the heart of the dispute is this: the cops argue that Amendment A is “void” because it “addressed multiple subjects and purported to add an entirely new article to the Constitution.” The Secretary of State and the campaign behind the effort argue that the subject of the ballot measure is clear: cannabis. 

“It’s wrong that South Dakota taxpayers are funding both sides of a lawsuit that would overturn a voter-approved law,” South Dakotans for Better Marijuana Laws wrote on their Facebook page on Saturday. “And it’s wrong that inconsistent information has been provided to the public regarding Governor Noem’s involvement in the litigation,” they continued, referencing the fact that, on November 23, Noem’s spokesperson Ian Fury told the Rapid City Journal that Noem “did not ask” either Miller of Thom to bring forth the lawsuit.

A hearing is set to take place on January 27. This type of legal battle is unprecedented in the cannabis world, as far as a governor’s involvement goes, therefore it’s tough to say how it will shake out. However, it is worth noting that the 2020 cannabis ballot measures saw more robust opposition than those in past elections. For example, in September, a campaign in Nebraska placed a medical cannabis measure on the ballot only to see it stripped by the state’s top court—a first, as Cannabis Wire reported

Today, ongoing disputes threaten other cannabis measures that passed in November, including, for example, the adult use measure in Montana and the medical cannabis measure in Mississippi. Even if these disputes do not ultimately overturn what voters decided in November, they are likely to cause delays in the implementation of those measures. 

More Will South Dakota Be the First State to Overturn a Cannabis Legalization Vote?