Sheriff Thom, SDHP Chief Miller File Election Contest to Kill Amendment A on Marijuana

Last updated on 2020-11-22

On Thursday, the precious and prescient South Dakota Chamber of Commerce and Industry David Owen told attendees of his pre-legislative talk that someone might challenge Amendment A, South Dakota’s freshly approved constitutionalization of marijuana, in court:

“There is talking going on behind the scenes, that some group might choose to challenge Amendment A, arguing that constitutional amendments are supposed to be single-topic,” Owen said. “Amendment A discusses recreational marijuana, has one sentence about medical (marijuana) and it has another sentence that refers to hemp” [Trent Abrego, “David Owen Previews 2021 Legislative Issue,” Aberdeen American News, 2020.11.19].

On Friday, Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Colonel Rick Miller filed an “Election Contest: Verified Complaint” in Hughes Count Court calling for the Sixth Circuit Court to declare the November 3 election on Amendment A invalid, the ballots cast for or against Amendment A null and void, and Amendment A itself not ratified and not part of the South Dakota Constitution. They sue on the very grounds that Owen mentioned and which I laid out back in January, that Amendment A, in its 2,300 words and fifteen sections, addresses more than one subject, and as South Dakota voters unnecessarily wrote into our constitution with Amendment Z in 2018, “no proposed amendment may embrace more than one subject.”

Sheriff Thom and Trooper Miller also allege that the South Dakota Constitution prohibits voters from directly adding new sections to the constitution. Citizens may petition for “amendments,” which Thom and Miller argue only change existing sections and deal with subjects already addressed by the constitution, but entirely new sections of the constitution dealing with previously unaddressed topics are “revisions,” which may only originate in a constitutional convention.

Cops are filing a challenge to a ballot question election—yes, as South Dakota’s biggest ballot question nerd, I’m going to have a long and interesting weekend! Expect multiple posts on this election contest, including discussions of…

• the strangeness of public officials using their public offices and public resources (including state taxpayer dollars!) to challenge this vote, and how this differs from past ballot question challenges in court;
• the apparent error the plaintiffs have made in filing this challenge as an election contest rather than a direct lawsuit against Amendment A and the state.
• the nitty-gritty of the single-subject and amendment-vs.-revision/initiative-vs.-convention arguments.

On that last point, I’ll note right now that the prophetic David Owen isn’t confident enough about the challengers’ legal grounds to put his own organization’s name on the plaintiffs’ line:

“I’m skeptical, I will tell you I think that’s a long shot. The chamber was one of the lead groups against it, and we didn’t mention this during the campaign, so you’re not going to see us as one of the plaintiffs, but there are some others, and it’s a reasonable question,” Owen said [Abrego, 2020.11.19].

Why is Owen so dubious? I’ll get to that. Buckle up, voters! Your electorally expressed will is under attack again… and if you want to understand that attack, its weaknesses, and its strengths, you’ll keep reading Dakota Free Press!