Medical Cannabis Advocates Ask Court to Place Initiative on Ballot

Campaign card 2.0?
Campaign card 2.0?

New Approach South Dakota is asking a judge to place its medical cannabis initiative on South Dakota’s November ballot. In a complaint filed yesterday in Sixth Circuit Court, New Approach SD charges that the Secretary of State mishandled its petition and thus should be compelled by the court to relieve its 16,000-plus signers by placing the medical cannabis proposal on the ballot.

Putting medical cannabis on the ballot as Initiated Measure 24 is completely unacceptable, of course, because I would have to reprint all of my campaign cards to make room for an eleventh ballot measure.

To understand New Approach SD’s legal argument, recall the history of the petition. Initiative sponsor Melissa Mentele submitted New Approach SD’s petition to the Secretary of State on November 9, 2015 with 16,631 signatures. Secretary of State Shantel Krebs counted 16,543 submitted signatures. Secretary Krebs rejected the petition on February 3, 2016, finding a 45.48% error rate that left the petition with only 9,019 valid signatures, far below the 13,871 signatures required to make the ballot. Mentele challenged that rejection on March 3, saying many of the signatures Secretary Krebs rejected were registered voters and noticing that the Secretary’s count had sampled 6% of the submitted signatures instead of the  legally required 5% random sample. Instead of conducting the usual review of the challenge, Secretary Krebs acknowledged the oversample on March 4 and conducted an entirely new and arguably extra-statutory 5% sampling of the petition. On May 27, Secretary Krebs again rejected the medical cannabis petition, citing a 63.2% error rate, caused largely by rampant notary error.

New Approach SD’s court challenge contends that the Secretary violated state law in two ways: first oversampling the petition in its first review in violation of SDCL 2-1-16, then in failing to provide petition sponsor Mentele with the formal notification of the second rejection by certified mail, as required by SDCL 12-1-15. The subtext: those violations should negate the Secretary’s rejection as surely as similar statutory violations by petitioners negate their petition. If the court disagrees with those technical grounds for relief, New Approach SD asks the court to determine the validity of its signatures.

Mentele says in her press release that court needs to protect the will of the voters:

We feel that the process and laws involved in sponsoring and circulating a ballot question petition are in place to protect all parties. We have followed all of the laws and still do not have a place on the 2016 ballot. The will of the voters in South Dakota has been circumvented by the state not following its own laws and rules. We cannot allow this to happen. The process is there to protect all South Dakota voters and we will fight to the end to make sure all voters are heard. 16,000+ people signed those petitions to allow a statewide discussion and vote on our issue. Those people deserve to have their voices heard [Melissa Mentele, press release, 2016.08.02].

Rapid City attorney Aaron Eiesland is doing the legal lifting for New Approach SD. The standard interpretation of election law says Eiesland has less than two weeks to make his case: per SDCL 12-13-1, the Secretary of State must place certified copies of each ballot question in the hands of each county auditor by Tuesday, August 16. The court already has the specious payday lender challenge  to Initiated Measure 21 on its docket next week Wednesday and Thursday.

If New Approach SD can make its case stick, the Secretary will have some fast printing to do… and I’ll need to run off some new campaign cards before the Brown County Fair!

Related Reading: As South Dakota Public Radio noted last month, a study in Health Affairs suggests that medical cannabis saved Medicare $165 million in 2013.