Z to A: Could Pot Amendment Face Challenge Under New Single-Subject Restriction?

I’ve said many times I won’t exert myself heavily for or against marijuana policy. But now that we have to vote on two pot initiatives, I guess I’ve got to study up.

Secretary of State Steve Barnett announced yesterday that “South Dakotans for Better Marijuana Laws,” the ballot question committee formed by the D.C. group Marijuana Policy Project and affiliated with D.C. New Approach PAC, submitted enough valid signatures to place its initiated constitutional amendment legalizing marijuana for the 2020 ballot. Secretary Barnett provides the following figures; I provide pertinent calculations:

• Signatures submitted: 53,400 (pretty close to the 53,377 MPP reported filing on November 4).
• Signatures randomly sampled: 723.
• Sampled signatures found invalid: 497.
• Petition signature error rate: 31.26%.
• Calculated number of valid signatures: 36,707.
• Signatures required to qualify for ballot: 33,921.
• Signature cushion obtained by circulators: 8.21%.

The Marijuana Policy Project relied heavily on paid circulators. The rather bad 31.26% error rate reinforces our experience in South Dakota that paid circulators produce quantity, not quality.

Absent a petition challenge, MPP’s measure will appear on our ballot as Amendment A. We reached Amendment Z in 2018, so we return to the beginning of the alphabet.

Amendment Z relates to Amendment A in more than just rebooting the lettering. That freshly passed amendment, the single-subject restriction that we approved 62% to 38% in 2018, could provide that new last sentence of Article 23 Section 1 with its first courtroom test. I find the single-subject rule an unnecessary restriction on our right to amend our constitution, but folks inclined to follow Republicans in their war against initiatives can argue that Amendment A is a multi-subject amendment. Consider everything Amendment A does:

1. Legalizes possessing, using, ingesting, inhaling, processing, transporting, delivering without consideration, and distributing quantities of marijuana of one ounce or less, as long as you’re 21 or older and don’t do it in public or in a moving vehicle;
2. Legalizes growing up to three marijuana plants for personal use, as long as you lock them up, nobody can see them in your garden or window from the street, and you and your roommates don’t have more than six plants in the house at once;
3. Authorizes and orders the Department of Revenue to license and regulate cultivation, manufacture, testing, transport, delivery, and sale of marijuana;
4. Imposes a 15% excise tax on all marijuana sales until at least November 3, 2024, at which point the Legislature may adjust the rate;
5. Appropriates pot tax revenue to the Department of Revenue for administration of pot licenses and regulations;
6. Directs the Legislature to appropriate 50% of the remaining pot tax revenue to support South Dakota’s public schools;
7. Deposits the remainder of the revenue to the general fund;
8. Mandates an annual report from the Department of Revenue on pot licensees and tax revenues;
9. Requires the Legislature to pass laws ensuring access to medical marijuana;
10. Requires the Legislature to pass laws regulating the cultivation, processing and sale of hemp.

One could easily look at those ten items (and I’m summarizing; Amendment A has other details) and identify distinct subjects. Personal use of marijuana, commercial use of marijuana, medical use of marijuana, taxation, funding of public schools, production of non-intoxicating industrial hemp….

Attorney General Jason Ravnsborg certainly rigs the ballot by writing a title that emphasizes Amendment A’s arguable multi-subject nature: “An amendment to the South Dakota Constitution to legalize, regulate, and tax marijuana; and to require the Legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use.” That incorrect semicolon signals not only A.G. Ravnsborg’s illiteracy but also his desire to make Amendment A sound as multi-subject as possible.

Supporters of writing marijuana into our constitution may appeal to multiple precedents to stave off an Amendment Z/single-subject challenge. A Nebraska court in 2018 rejected a multi-subject challenge to a state ballot measure, saying that courts have allowed multiple elements in initiatives, as long as those elements have a “natural and necessary connection” to each other. Recreational marijuana, medical marijuana, and hemp all have a natural and necessary connection, as attested by our own Governor Kristi Noem, who views the legalization of hemp and pot as inseparable.

Furthermore, South Dakota legislators themselves have not blanched at passing multi-subject laws and placing multi-subject measures on our ballot. G. Mark Mickelson saw no problem with raising tobacco taxes and funding vo-techs in one ballot measure (failed Initiated Measure 25 in 2018). Our Legislature has its own history of passing omnibus bills addressing multiple subjects despite an identical restriction on multi-subject measures under the Capitol Dome.

Besides, the Marijuana Policy Project has Brendan Johnson lawyering for Amendment A. If you oppose writing marijuana into the Constitution, do you really want to hang you hat on the untested nail of Amendment Z and try arguing that this initiative really touches on multiple subjects in an effort to pull a fast one on the voters (see Simpson v. Tobin 1985) against a powerhouse attorney like Johnson? Or would you rather spend your time and effort just rallying the Trump base to vote against all those gosh-darned out-of-state hippies who want to come smoke pot at Mount Rushmore?