South Dakota’s attorney general has approved final summary language for a 2024 marijuana legalization ballot initiative—but advocates are taking issue with key parts of the description and are now considering bringing the matter to court.
Attorney General Marty Jackley (R) released the final explanation on Thursday. While his office received public comment from the cannabis campaign, advocates’ main contentions with the draft version went unresolved.
There are a few significant problems, South Dakotans for Better Marijuana Laws (SDBML) Director Matthew Schweich told Marijuana Moment on Thursday.
First, while the explanation was revised to omit the word “sell” in reference to what the marijuana initiative would allow, it still says that adults 21 and older could “distribute” cannabis, despite the fact that the measure was intentionally drafted to exclude commercial sales in order to avoid a constitutional challenge.
Schweich also pointed out that the attorney general added the word “recreational” to the title, which he said was “biased and unfair.” In some corners, that word carries a negative connotation that could bias voters against the measure, and so the campaign would have preferred it to simply say that it legalizes cannabis for adults.
Lastly, the final explanation concludes with a line that Schweich described as the “biggest problem.”
“Judicial or legislative clarification of this measure may be necessary,” the attorney general’s summary says.
It might seem benign, but the implication that there’s legal uncertainty around the measure could be especially problematic in South Dakota given the history of legalization ballot initiatives in the state. After voters approved adult-use legalization in 2020, the state Supreme Court invalidated the measure over single-subject concerns, so voters might be less inclined to support the reform again if they think history will repeat itself.
“That final phrase—in the context of Amendment A, the court case that overturned it—I think that is just going to give voters the impression that there are legal question marks over this initiative, even though we wrote it very conservatively and wrote it in a way to avoid a single subject lawsuit,” Schweich said. “That’s why there’s no sales at this initiative. So I think that’s a very unfair final statement for voters to see on the ballot.”
The concerns are nuanced, but important, the campaign says. Voters rejected legalization at the ballot last year, so passage is far from guaranteed and if even a small fraction of the electorate votes against the proposal because of the state’s summary language choices, that could spell doom for the issue.
“In an era in which the cannabis reform movement is very underfunded, every little thing matters,” he said. “I think most people don’t realize that there’s virtually no philanthropic dollars going to cannabis reform ballot initiatives. There used to be. It doesn’t exist anymore. And so we’re working with very limited resources, and cannabis reform campaigns that used to be well-funded or appropriately funded are now underfunded.”
In a letter to the attorney general that Schweich sent following the release of the draft explanation earlier this month, the campaign had also requested that the final text replace the word “marijuana” with “cannabis.” But the office declined to adopt any of the recommended changes and only ended up making mostly structural changes compared to the draft.
“I’m not surprised they ignored my comments because the process is really tilted in favor of government agencies,” Schweich said, adding that the campaign is considering pursuing litigation during a seven-day window that they’re afforded.
In the end, however, one of the most pressing challenges for activists is raising enough funding to make another full-out campaign make sense.
SDBML will start signature gathering on a volunteer basis and “get as much as we can,” but without additional funding required to run a statewide campaign and ensure ballot placement, they may ultimately decline to commit to the measure.
“Soon we’re going to need to answer the question, can we really fund his campaign? And if we cannot adequately fund it, then we shouldn’t waste time with grassroots circulating,” Schweich said. “But it’s too soon to abandon this effort. I do have some hope that we’re going to be able to raise some money for this campaign. But it’s definitely still a question mark.”
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If they do get the funding and secure ballot placement, the campaign will also need to win over voters who rejected legalization last year.
Ahead of that election, a poll found that 51 percent of South Dakotans planned to vote against the legalization measure, while 40 percent said they’d be supporting it and 10 percent remained undecided. That was the third poll in a row showing the legalization measure behind.
Meanwhile, a Republican activist recently filed a pair of initiatives to repeal that law and also keep federally banned substances from ever being legalized by voters. The state attorney general finalized the ballot explanation for the medical marijuana repeal measure this month.
In 2021, Gov. Kristi Noem (R) tried to get the legislature to approve a bill to delay implementation of the state’s medical cannabis program for an additional year—but while it cleared the House, negotiators were unable to reach an agreement with the Senate in conference, delivering a defeat to the governor.
In response, her office started exploring a compromise, with one proposal that came out of her administration to decriminalize possession of up to one ounce of cannabis, limit the number of plants that patients could cultivate to three and prohibit people under 21 from qualifying for medical marijuana.
In the 2022 legislative session, the House rejected a legalization bill that the Senate had passed, effectively leaving it up to activists to get on the ballot again.
A Marijuana Interim Study Committee, headed by legislative leaders, was established to explore cannabis policy reform, and the panel ultimately recommended that the legislature take up legalization. The House-defeated legislation was one of the direct products of that recommendation.
Photo courtesy of Mike Latimer.