by Lottie James*

By the late evening of November 3, 2020, it had become abundantly clear that a majority of South Dakotans support the legalization of both medical and recreational marijuana use. Two separate initiatives related to the legalization of marijuana usage were on the same ballot, and both initiatives passed with a majority affirmative vote. The first initiative, South Dakota Initiated Measure 26, would legalize the use and cultivation of marijuana by individuals with debilitating medical conditions. Initiated Measure 26 received support from 69.92% of voters. The second initiative, South Dakota Constitutional Amendment A, would legalize the recreational use of marijuana for individuals twenty-one and older. Amendment A would also require the state legislature to pass laws that would create a medical marijuana program and provide for the sale of hemp. Amendment A received support from 54.18% of voters.   

Public support for the legalization of marijuana in the United States at the time was approximately 68% according to a Gallup poll conducted during the months of September and October in 2020, so the results of the two marijuana-related initiatives may not seem all that noteworthy. Within the context of the United States broadly, South Dakota’s vote is not unusual as eleven other states had legalized recreational marijuana usage and thirty-three other states had legalized, or decriminalized, marijuana usage for medicinal purposes. However, South Dakota’s vote is important for three reasons: South Dakota has historically had unusually harsh drug laws, the vote legalized medicinal and recreational use at the same time, and the state Supreme Court eventually upheld a lower court’s nullification of the recreational use amendment.

Significance of Affirmative Votes: Severity of Previous Drug Laws and “Leapfrog” Legalization

The vote to legalize medical and recreational marijuana use is particularly significant for South Dakota because South Dakota currently has strict laws related to drug offenses, and no other state to date has legalized both medical and recreational use simultaneously. South Dakota’s current drug laws for non-medicinal marijuana use are austere, both in terms of applicability and punishment. In addition to laws addressing possession of controlled substances and intent to distribute, South Dakota is the only state that considers ingestion of a controlled substance, even in trace amounts, to be a felony offense. South Dakota’s law regarding ingestion went into effect in 2014, so there has been a significant turnaround in attitude regarding marijuana use in a relatively short amount of time. South Dakota’s ingestion law is notable not only for its severity but its application. In cases where ingestion is the highest charged crime, Native Americans are statistically more likely to be imprisoned than non-native people. For example, 10% of native men in prison had ingestion as their highest charged crime compared to 6% of non-native men in 2019. This pattern is consistent for women as well, with 23% of native women in prison for ingestion compared to just over 16% for non-native women in 2019.

In addition, the November 3rd election is notable because South Dakotans have “leapfrogged” a multi-year process towards full legalization. Other states have generally moved towards complete legalization in three steps: decriminalization, legalization for medicinal use, and full legalization, including recreational use and cultivation of marijuana plants. By placing both initiatives on one ballot, South Dakota has potentially skipped over the first two steps thereby going from felonious ingestion to complete legalization in one trip to the voting booth. 

Court Rejection of Amendment A Despite Voter Approval

While Initiated Measure 26 was adopted into law, Amendment A became the subject of a challenge by Governor Kristi Noem’s administration. Two law enforcement officials challenged Amendment A stating that the amendment was unconstitutional because of a 2018 constitutional amendment that required all further amendments to touch on one subject. The requirement that all amendments embrace only one subject is rooted in two primary concerns: combating the practice of “combining unrelated provisions in one amendment to ensure passage of a provision that might otherwise fail had the provisions been submitted separately” and eliminating voter confusion about the contents of amendments. Circuit Judge Christina Klinger, who was appointed by Governor Noem in 2019, struck down the amendment on February 8, 2021, arguing that the amendment touched on multiple subjects including hemp cultivation, legalization of marijuana, and more. She also argued that the amendment constrained the executive and legislative branches of South Dakota’s government by granting too much power to the state’s Department of Revenue. 

Proponents of Amendment A appealed the circuit court’s order declaring the amendment unconstitutional to the state’s Supreme Court. On November 24, 2021, the South Dakota Supreme Court released an option authored by Chief Justice Steven Jensen affirming the circuit court’s decision in a 4-1 decision. Interestingly, all four affirming justices, while in agreement that the amendment is not constitutional, appear to be split on rationale with Justices Janine Kern and Patricia DeVaney concurring and Justice Mark Salter concurring specially. Justice Scott Myren concurred in part and dissented in part. On behalf of the Court, Chief Justice Steven Jensen argued that Section 1 of Article XXIII of the South Dakota Constitution must be interpreted as requiring a separate vote when an amendment includes at least two unrelated subjects, “with different objects or purposes, that are not dependent upon or connected with each other.” The Court concluded that Amendment A embraces at least three distinct subjects: legalization of marijuana, a mandate that the state legislature adopt laws to ensure access to medicinal marijuana, and a mandate that the state legislature regulate the hemp market. 

Since the Supreme Court’s decision was released just recently, proponents of Amendment A have begun gearing up to continue the fight for legalization. If the proponents of Amendment A do decide to split the amendment into three distinct initiatives, South Dakotans would then vote on all the separate issues as distinct ballot measures, with the exception of Amendment A’s medical marijuana provision which is unnecessary in the light of Initiated Measure 26’s passage. South Dakota’s legislature has also begun the process of legalizing recreational marijuana during the current legislative session. Unfortunately, South Dakota’s ingestion law is still valid and thus the inequality concerns about inequal application of the law continue.

*Lottie James, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member