The forward march of marijuana legalization encountered a roadblock yesterday when a South Dakota judge ruled against the will of voters and declared an amendment legalizing the use and sale of recreation and medical marijuana and hemp unconstitutional. Last November South Dakota voters approved Amendment A by a margin of eight points but strong opposition to the voter‐driven initiative from within the highest levels of state government – including the governor – have led to this recent ruling.
The basis for the unconstitutionality argument rests on the 2018 adoption of Amendment Z which, “establish[es] that a proposed constitutional amendment may embrace only one subject, and requiring proposed amendments to be presented and voted on separately.” Despite warnings from opponents that it could be used to prevent all but the narrowest amendments from being voted upon and dramatically increase the cost of initiative petition drives, Amendment Z passed with overwhelming support – 62.4 percent to 37.6 percent.
South Dakota is not alone in having a single‐subject rule. Of the twenty‐six states with processes for initiatives or referendums sixteen – including South Dakota – have similar single‐subject rules or separate‐vote requirement provisions. These weaken the power of citizens to generate change from outside the political structure which is antithetical to democratic ideals.
Two law enforcement officers – Pennington County Sheriff Kevin Thom and Highway Patrol Superintendent Col. Rick Miller – brought the lawsuit challenging Amendment A. Governor Kristi Noem ordered the state to pay legal fees for Mr. Miller, leaving taxpayers paying for both sides of the legal battle.
It is not surprising that South Dakota law enforcement would oppose marijuana legalization efforts. In 2019, there were 9,791 arrests for drug violations – accounting for one quarter of all arrests in the state. And since 2010, drug arrests in South Dakota have increased by 148 percent. Marijuana legalization would eliminate many of these arrests, perhaps making it more difficult for state and local law enforcement agencies to justify bloated budgets.
Research shows that marijuana legalization results in modest effects and has the potential to generate substantial revenue for states. Marijuana legalization is increasingly popular as evidenced by the rapidly increasing number of states embracing it. South Dakota should listen to voters and legalize the use and sale of recreational and medical marijuana.