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Intervenors on Amendment A: Sheriff, Trooper Can’t Sue State; Complaint Had to Come Before Election

Ballots, not briefs, decide elections.

Judge Stephanos Bibas, opinion, Donald J. Trump for President, Inc., et al., v. Secretary of Pennsylvania et al., Case #20-3371 United States Third Circuit Court of Appeals, 2020.11.27.

So opens the intervenors’ brief from Sioux Falls lawyers Brendan Johnson and Timothy Billion on behalf of South Dakotans for Better Marijuana Laws, four representative and agitated citizens, and Amendment A, the cannabis measure that South Dakotans voted into our state constitution last month. Joining the Attorney General’s office in fighting Governor Kristi Noem’s sneaky, sleazy effort to steal South Dakota’s election, the intervenors fill the outrage gap left in the argument by the gentler assistant attorneys general, who must choose their words against their Governor and their partner-police officers (recall, the Potemkin plaintiffs recruited by the Governor are Pennington County Sheriff Kevin Thom and Highway Patrol Colonel Rick Miller) carefully if they wish to continue collecting paychecks from Pierre. The AAGs’ argument may be just as effective, but the outsider Amendment A advocates’ arguments will be more fun.

Johnson and Billion challenge this cop-fronted lawsuit on three main grounds:

The Plaintiffs lack standing to bring these claims in their official capacities. Moreover, the Plaintiffs should have presented these arguments well before the November 2020 election, and may not wiat until after the results are in to pull the rug our from under South Dakota’s voters. Finally, the Plaintiffs’ arguments are simply wrong on the merits: Amendment A only involved a single subject and did not require a constitutional convention [Brendan Johnson and Timothy Billion, Memorandum in Support of Motion for Judgment on the Pleadings by South Dakotans for Better Marijuana Laws, Randolph Seiler, William Stocker, Charles Parkinson, and Melissa Mentele, Thom and Miller v. Barnett, South Dakota Sixth Circuit Court, filed 2020.12.23].

Standing in Official Capacity

Thom and Miller bring the Governor’s lawsuit in their official capacity, not as private citizens. Yet in Edgemont School District v. South Dakota Department of Revenue (1999), the South Dakota Supreme Court, citing precedents from Iowa, said officers of the law can’t sue to overturn the law:

A school district] is a legislative creation … . It is not a “person,” within the meaning of any bill of rights or constitutional limitation. It has no rights, no functions, no capacity, except such as are conferred upon it by the legislature.

—Exira Community Sch. Dist., 512 NW2d at 790 (alterations in original) (quoting Boyd v. Johnson, 238 NW 61, 68 (Iowa 1931)).

Counties and other municipal corporations are, of course, the creatures of the Legislature; they exist by reason of statutes enacted within the power of the Legislature, and we see no sound basis upon which a ministerial (or, for that matter, any other) office may question the laws of its being. The creature is not greater than its creator, and may not question that power which brought it into existence and set the bounds of its capacities.

—Bd. of Supervisors of Linn County, 263 NW2d at 232 (quoting C. Hewitt & Sons Co. v. Keller, 275 NW 94, 97 (Iowa 1937)).

[South Dakota Supreme Court, opinion, Edgemont Sch. Distr. v. SD Dept. Revenue, 1999.04.14]

Intervenors contend that the plaintiffs’ duty is to uphold the law, whether they like it or not:

This rule makes good sense: both Sheriff Thom and Superintendent Miller have sworn to uphold the law, which includes laws passed by voters. Allowing officials to challenge laws they do not like undermines the rule of law and improperly injects the state into the election process. Law enforcement officers may not pick and choose which laws they will uphold in their official capacities, and they may not use their offices to play politics [Johnson and Billion, 2020.12.23].

Intervenors also suggest that allowing the officially acting plaintiffs standing creates a logical and perhaps legal paradox:

This is particularly concerning where, as here, the state apears to be paying at least some of the legal fees to allow a state official to sue the stateSee Arielle Zionts, Legal team to fight for ballot measure that legalized marijuana in South Dakota, Rapid City Journal, Nov. 25, 2020 (Gov. Kristi Noem—who is opposed to recreational and medical marijuana—approved state funds for Miller’s legal fees, according to her spokesman Ian Fury.”) The Plaintiffs have not identified any basis—statutory or otherwise—for the expenditure of public funds to oppose election results. As a result, the Court is confronted with a scenario in which the state is essentially suing itself to determine whether it can avoid a law the voters passed. This Court should not allow the Plaintiffs to undermine the ballot initiative process in this manner [link added, emphasis original; Johnson and Billion, 2020.12.23].

Beyond this potential abuse of their status as public officials, Thom and Miller fail to state any specific personal injury that would give them standing to challenge the election. Johnson and Billion note that in Edgemont, the South Dakota Supreme Court said public officials can’t sue on behalf of injured taxpayers. If Kristi wanted fronts for her effort to foil legal pot, she needed to recruit someone other that two cowed cops.

If all of those arguments fail, the Intervenors spot Plaintiffs some injury-hypotheticals and indicate they are ready to turn the lawsuit into a policy debate over the impact of Amendment A on law enforcement costs… which argument I will leave to the lawyers, since I’m far more interested in the constitutional questions at stake.

Doctrine of Laches—Too Late, My Brothers!

Vigilantibus non dormientibus aequitas subvenit—equity aids the vigilant, not the indolent.

No one yet is having that policy debate about the substance of Amendment A; this lawsuit revolves entirely around the form of Amendment A. And form arguments, Intervenors contend, should have been brought before the election. By the doctrine of laches, aggrieved parties must bring their complaints to court in a timely fashion, when the issue is ripe. If you snooze, you lose.

Intervenors stumble in this argument, incorrectly invoking SDCL 2-1-17.1, which allows any interested party to challenge any ballot question petition by filing an affidavit alleging specific deficiencies with the Secretary of State. Yet such challenges may only address “facial” problems with the petitions, items that the Secretary of State, acting in his purely ministerial capacity, can identify. Per SDCL 2-1-15, The Secretary of State only counts and checks signatures and voter registration in his database; Thom and Miller’s complaint makes not one peep about signatures or voter registration. Had Plaintiffs brought their complaints about Amendment A’s alleged violations of the single-subject rule or failure to call a constitutional convention, Secretary Barnett would have been legally bound to shrug and say, “Tell it to the judge.” Judge and Noem-appointee Christina Klinger will thus ignore Intervenors’ appeal to the 30-day petition challenge deadline.

Intervenors also glancingly mention SDCL 2-1-18, which allows petition opponents to file broader challengers to validated petitions in circuit court before the election. SDCL 2-1-18 gives no deadline for such challenges, although practically speaking, courts have expedited such challenges under the assumption that they must be resolved before ballots are printed three months before the election. On review of the text, I find this law appears to envision only challenges to “the validity of any signature, the veracity of the petition circulator’s attestation, or any other information required on a petition by statute or administrative rule….” While there must be some opportunity to challenge an initiated amendment on the grounds of the single-subject rule or the need for a constitutional convention, SDCL 2-1-18 does not appear to provide that opportunity and thus may not be relevant to Intervenors’ argument.

Those two statutes do suggest that the ripe time for challenges to petitions is before the election, not after. The alleged deficiencies in Amendment A were plainly visible before the election, yet as Intervenors argue, Plaintiffs decided to gamble on beating Amendment A at the polls instead of taking it to court. Citing the Pennsylvania Supreme Court, Intervenors liken Plaintiffs’ action to the Trumpists trying to overturn the Presidential election on the basis of complaints about the application of voting laws:

The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from Petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters [Pennsylvania Supreme Court, order, Kelly et al. v. Pennsylvania, 2020.11.28].

Intervenors cite a Wisconsin Supreme Court ruling against Trump from December 14 establishing that, in the context of elections, the doctrine of laches can require complainants to take action within a month or lose their right to complain:

¶19 Finally, the City of Madison held events on September 27, 2020, and October 3, 2020, dubbed “Democracy in the Park.” At these events, sworn city election inspectors collected completed absentee ballots. The city election inspectors also served as witnesses if an elector brought an unsealed, blank ballot. No absentee ballots were distributed, and no absentee ballot applications were accepted or distributed at these events.

¶20 The Campaign characterizes these events as illegal early in-person absentee voting. When the events were announced, an attorney for the Wisconsin Legislature sent a warning letter to the City of Madison suggesting the events were illegal. The City of Madison responded that the events were legally compliant, offering reasons why. Although these events and the legislature’s concerns were widely publicized, the Campaign never challenged these events, nor did any other tribunal determine they were unlawful.

¶21 The Campaign now asks us to determine that all 17,271 absentee ballots collected during the “Democracy in the Park” events were illegally cast. Once again, when the events were announced, the Campaign could have challenged its legality. It did not. Instead, the Campaign waited until after the election——after municipal officials, the other candidates, and thousands of voters relied on the representations of their election officials that these events complied with the law. The Campaign offers no justification for this delay; it is patently unreasonable.

¶22 The time to challenge election policies such as these is not after all ballots have been cast and the votes tallied. Election officials in Dane and Milwaukee Counties reasonably relied on the advice of Wisconsin’s statewide elections agency and acted upon it. Voters reasonably conformed their conduct to the voting policies communicated by their election officials. Rather than raise its challenges in the weeks, months, or even years prior, the Campaign waited until after the votes were cast. Such delay in light of these specific challenges is unreasonable [Wisconsin Supreme Court, opinion, Trump et al. v. Biden et al., filed 2020.12.14].

Thom and Miller had the chance to read Amendment A far more than a month before the election. The Attorney General published his comments on the final text of the proposed amendment on August 16, 2019, fourteen and a half months before the election. Sheriff Thom was on the record in January 2020 opposing Amendment A. They had ample time to go to court to prevent South Dakotans from improperly voting on an improper initiative. Instead, they litigatively snoozed; thus, by the doctrine of laches, they must litigatively lose.

We’ve played the game; the losing coach can’t throw his challenge flag on Monday morning and get the refs to throw out the winning touchdown on a holding penalty.

Johnson and Billion note a Nebraska case from this year in which our neighbors’ high court blocked a medical marijuana initiative from the ballot for encompassing more than one subject. However, the Nebraska Supreme Court held that the single-subject challenge is a question of form, a procedural challenge, not a substantive challenge, and procedural challenges are ripe prior to the election. Intervenors argue that allowing the court to overturn legislative acts of the people undermines faith in elections and the courts.

We’re Not Violating the Constitution—You Are!

Johnson and Billion put some teeth into their doctrine of laches argument with a brief, two-paragraph argument seeking to flip the argument on Noem’s complainants. Intervenors point out that Article 23 Section 3 commands that any constitutional amendment approved by a majority of voters “shall become part of the Constitution.” Intervenors thus contend that Amendment A is a done deal. Plaintiffs want to remove Amendment A from the Constitution… meaning they want to amend the Constitution. Article 23 Section 3 says nothing about allowing a circuit court judge to remove a Constitutional provision; the only allowed mechanism for altering the Constitution is a majority vote of the people of South Dakota. A court complaint is only ripe before we vote; once we vote, no courtroom brief can overturn our cast and counted ballots. In asking the court to strike a portion of the Constitution they don’t like, Plaintiffs are violating the Constitution “by inviting the Court to circumvent the terms of the Constitution and to invade the power granted to the voters.”

Single Subject Amendment

Johnson and Billion then replow the ground covered by the State on the single-subject rule and the question of revision vs. amendment. Intervenors recite comparable marijuana measures from Massachusetts and Florida found in court to be multi-faceted but singly subjective. They contend that the main reason for single-subject rules, avoiding trickery at the polls, was not in play here, as the title of Amendment A gave voters a clear picture of its full intent. They contend Article 23 gives voters wide berth to vote new sections into our Constitution without having to declare their action a “revision” and hold a constitutional convention first. Intervenors also pick up on arguments I offered last month, that the complaint against creating a new section doesn’t comport with our history of enacting new wide-reaching sections by amendment and that it makes no sense when we could easily circumvent such a complaint by casting entirely new and unrelated provisions as sections under our “Miscellaneous” Article 21 instead of separate articles.

*****

The State and the Intervenors work together to make a compelling case that Amendment A consists of a single, integral subject—the regulation of cannabis in South Dakota—and that Amendment fits both the law and accepted historical practice of amending the South Dakota Constitution. Attorneys Johnson and Billion add reasonable arguments that Sheriff Thom and Trooper Miller can’t file this lawsuit in their legal capacity. If we ignore a couple of improperly invoked statues, we can also salvage a reasonable argument from Johnson and Billion that the procedural arguments about Amendment A had to be brought to court before the election. Now that the people have spoken, Thom, Miller, and Noem’s only recourse against Amendment A is another vote of the people in 2022.

34 Comments

  1. Bob Newland 2020-12-26

    I have $10 that says this lawsuit against SoDak voters proceeds no further. The judge will dismiss it with a sarcastic quip. The sarcastic quip is even an element of my bet. Takers?

  2. grudznick 2020-12-26

    You’re on, Bob. grudznick will be the judge of the sarcasm of the quip.

    Odds are you win, but I’ll be glad to get you a few well needed bucks. Plus, with the Edgemont connection, we know Mr. Russell and his greasy paws will be all over this.

  3. Donald Pay 2020-12-26

    Litigating the issue of style and form, including single subject and all their other blah-blah, is ridiculous no matter when it’s done. The good part of the current process is that initiatives go through the LRC. Everyone knows the LRC isn’t perfect, but they are tasked to draft up bills and joint resolutions for the Legislature. There’s a screwed up deadline with that process, but that should be fixed. I never realized you could sue a prime sponsor for a flaw you might see in drafting. Someone should try that, and see how big a laugh you get.

    As far as I’m concerned if it ain’t law, don’t bother to sue on piddly sh@t. If it is law sue on substance or STFU. Thom etc all need to go back to catching crooks. The fact is they got nothin’. They lost the vote. They didn’t expect that to happen. Now they’re wanting someone in a robe to slip in a few thousand judicial votes to offset the people who voted for this amendment. It’s sickening.

  4. Francis Schaffer 2020-12-26

    If the legislature would quit overturning initiated measures after they succeeded, maybe people wouldn’t use Constitutional amendments to achieve their goal.

  5. Cory Allen Heidelberger Post author | 2020-12-26

    Bob, while a sarcastic quip may be all that Noem’s legal spaghetti deserves, I’d appreciate a full ruling establishing case law to deter future such efforts by the Republicans to quash initiatives.

  6. grudznick 2020-12-26

    Mr. Pay, I sure love you.

  7. Cory Allen Heidelberger Post author | 2020-12-26

    Donald, you share the intervenors’ view that Noem’s Potemkin plaintiffs are now trying to welch on the bet they lost. They had an opportunity to challenge the ballot question’s placement on the ballot well before the election. They chose to gamble instead on a public vote, thinking not unreasonably that the voters’ past rejection of marijuana ballot measures gave them a good chance of securing a similar rejection this year. But the fact that they failed to update their read of public opinion does not let them out of their gamble. Technical as their grounds for opposition may have been, they could have brought their complaints to court before Secretary Barnett printed ballots. They did not. They missed the boat. Amendment A is now bound to become law, and the only way Noem and her people can change it is to put a repeal amendment on the 2022 ballot.

    Yes, Kristi, that sounds like a great idea. Put a measure on the ballot right next to your name, to remind everyone at the polls that your #1 priority is to undo the will of the voters.

  8. Cory Allen Heidelberger Post author | 2020-12-26

    Francis, the Legislature will only stop doing that when voters make clear that there are consequences to overturning initiatives… and the only consequence that matter to the Greenfields, Novstrups, et al. is losing the next election.

  9. Jake 2020-12-26

    Yes, Francis, if ONLY! The GOP leg in South Dakota seems in past years to be more intent on doing the bidding of the governor branch and enacting its own prejudiced feelings into law. Like how to prevent women from choosing their own future, how to put more federal and state taxpayer dollars into the greedy corporate/individual hands, covering up corruption and overall malfeasance of office. The den of snakes seems to get bigger and slimier! (and smellier) . Thank you Cory, for a great article showing much research, Tink the TipJar!
    Those two wanna-be saviors of those sinful souls who might ‘toke-up’ should just ‘mask-up’ or shut-up!

  10. Mark Anderson 2020-12-26

    Come on folks, Kristi will be on the national state in two years. Even she will see that the will of the voters nationally is for Mary Jane. She has to appeal to those libertarians, (republicans who smoke dope) somehow, the trumpies she has already.

  11. Whitless 2020-12-26

    While a ruling on the merits would be helpful for future controversies, this ill-conceived lawsuit likely gets tossed for lack of standing by the Plaintiffs. A complete waste of taxpayer dollars. The amount paid in legal fees, expenses, etc. should be widely publicized for this misbegotten attempt to void the will of the people.

  12. mike livingston 2020-12-26

    When it comes to logic, common sense, adherence to the rule of law, and a willingness to serve the people, the trumpist a-holes that represent South Dakota have shown us time after time that all they stand for is reelection.

  13. T 2020-12-26

    I want to sue the state for allowing State funds to be used for payment for this nonsense bull, this pads the attorney expense fees and a true conflict of interest as to appropriations.

  14. Algebra 2020-12-26

    I think the reason these things passed was because most of the voters are tired of hearing about it. Few people care if other people want to use marijuana. Most figure if they want to use it, let them, but stop bothering the rest of us with the issue. We have other things to think about.
    It was hoped that if these measures passed, that would be the end of it.

    But instead of making it all go away and letting us all think about other things, it turns out passing it has resulted in interminable lawsuits and noise and excessively long blog posts nobody wants to waste time reading. I don’t even want to think what a lot of sound and fury this is going to cause in the legislative session.

    My point is, if the racket continues, in an effort to make you all sit down and shut up, the voters might decide to repeal both measures.

    Think about that.

  15. jerry 2020-12-27

    Think about what? You fail to convince your intentions. I calculate the voters decided and the math proves it.

  16. bearcreekbat 2020-12-27

    For what is might be worth Algebra, I for one want to read Cory’s “excessively long blog posts” about this issue. I find his thoughts on the matter interesting and mentally stimulating, and an enjoyable use of my time. Given most of the comments I have read here about the posts, it appears many others may well share my view, hence, your use of the term “nobody” is factually incorrect.

  17. Jake 2020-12-27

    I guess, truth be told, Algebra, if you don’t care to follow or read this blog- then tune out son- we won’t miss you, probably. I, like bcb, enjoy being able to read it and having some stimulating conversation and thoughts to ponder. Maybe you come here from the depths of Parler or Facebook etc. where the nonsense runs like the Yellowstone River through a gorge.
    When it comes to weed, let it be. Hell, those that so want it already get it-like liquor during Prohibition which all know was a lost cause and if we are to live in a capitalistic society then use regulation on weed for the benefit of all……

  18. grudznick 2020-12-27

    As far as stimulating conversation on an excessively long blogging, it is best and most concisely said that the demon weed is bad, it is very bad.

  19. Bob Newland 2020-12-27

    It is better, and more concisely said, to reflect that grudzfecal is worthless.

  20. Cory Allen Heidelberger Post author | 2020-12-27

    Whitless, if I put my cynical hat on, a Noem-appointed judge might find dismissal on standing the safest route. Instead of wading into the murky waters of constitutionality, Judge Klinger (whom, I repeat, Noem appointed in Feb 2019) could keep her remarks minimal, toss the current lawsuits on the simple technical point raised by the intervenors that the Sheriff and the Trooper have no standing in their official capacity, but leave the door open for Noem’s wonder lawyers to find different Potemkin plaintiffs from among the civilian population who have standing.

  21. Cory Allen Heidelberger Post author | 2020-12-27

    T, I would be curious to learn who among us would have standing to take Noem to court for expending public resources on the plaintiffs to influence the outcome of the election. Arguably, she’s directly violating state law, so one would think you could file a complaint with the state’s attorney in Hughes County and ask for action.

  22. Cory Allen Heidelberger Post author | 2020-12-27

    Algebra, I think you’re just trying to dress up TLDR laziness in a stretched scheme of moral/political blame. There’s also an inherent contradiction in your claim:

    (1) If nobody is reading “excessively long” posts on this complicated legal topic, then nobody is noticing the “racket” in any way that would affect subsequent voting.

    (2) If folks are noticing the racket in sufficient numbers to affect the election, then, as Bearcreekbat points out, a lot of people must be reading these long articles.

    But let me check, Algebra: Do you advise advocates of public policy issues that they will get more votes by keeping quiet and saying nothing to the public about their policies?

    I’m not deeply invested in what action the Legislature may take about marijuana, whether it becomes legal, or whether it comes to another public vote. I think the idea that people approved Amendment A and IM 26 just because they were sick of hearing about the issue is lazy thinking, personal projection at best, with no supporting evidence. It is far more likely and rational to conclude that many South Dakotans have changed their minds about marijuana since our last statewide vote on the issue in 2010. It is just as likely and rational to conclude that A and 26 passed this time because it was the first time that advocates had real campaign financing. That big out-of-state funding also makes unlikely any reversal in 2022 based solely on some faint gripe that “we’re sick of hearing about pot!”—now that they have a foothold, the campaign donors who stand to make money on medical, recreational, and industrial hemp will always outspend the folks who oppose pot on moral grounds, just as we see happen in South Dakota on measures concerning alcohol and gambling. Money talks, bulls— walks home from the polls a loser.

    The legal briefs filed in this case are each a couple dozen pages long. They provide important and useful legal arguments. Those of us who want to understand the law as it pertains to ballot questions and amending our Constitution need to read and discuss the briefs in full so that we can offer useful guidance to future ballot question sponsors and so we can resist unlawful efforts by our Governor, our Legislature, and other bad actors to suppress the will of the people and rule without accountability.

    I know full well as I bang away at the keyboard and click through statutes and case law that most people accessing this post will look at that long block of 2,555 words and say, “not interested” or will only scan for highlights before moving on for lighter, more easily digestible fare (preferably with catchy images that rack up better Share/Like points on Facebook and Twitter). The same happens on every news article online or in print. That’s no great failing of either the writer or the readers.

    I write articles like these for those who want and need them. Sometimes that’s a very small audience. Sometimes the audience may just be one person—me. I make sense of complicated issues like these by reading about them and writing about them. I create a brief book for myself so I can refer back to these original texts and this analysis when related questions arise in the future. Notice how often I link back to previous posts—that’s my deliberate effort to build a connected body of knowledge, to remind myself where certain ideas and arguments started and how they have developed over time. Even I in the future may come back to this article and only read one or two paragraphs of this long post—for instance, I may be writing another case that has nothing to do with initiatives or constitutional amendments but which hinges on the doctrine of laches, and I’ll want to review the links to that principle I placed in this article and how the intervenors applied it in this case.

    But I have all this information here now, organized and linked in a way that helps me makes sense of it and recall it for future use. And so does Bearcreekbat. So do any supporters or opponents of Amendment A who want to understand what arguments are being made in court, what arguments they could make to help the case, and what legal action they may have to further promote their agenda depending on how the court rules here.

    I find my long posts useful. I wouldn’t spend the morning researching and composing them if I didn’t. If even one other person finds them useful, too, well, that’s gravy. Good gravy.

    Sometimes I find long comments useful, too. They help me put in perspective what I’m doing here.

  23. mike from iowa 2020-12-27

    Algebra, name the person(s) forcing you to read about this so I can call 911 for you.
    Potty training and weaning are tedious and should not be omitted. You can decide to read or not, you aren’t being forced to read long comments.

    No offense intended.

  24. Anthony Renli 2020-12-27

    I had a friend who was all up in arms about Amendment A passing.
    I pointed out that had Noem done three things, this amendment most likely would have failed:
    1) Passed the industrial Hemp bill. Her veto alienated a number of farmers who were looking for another cash crop. She took money out of their pockets and this pissed them off. So some voted for this for this hoping it gives a pathway to hemp and some voted for this out of spite.
    2) Passed a medical cannabis law. IM26 passed easily – it was popular. Enough people have seen Initiated Measures get killed by the legislature to not trust that it would stand on its own. Had she passed medical cannabis laws, it would have made IM26 unnecessary and it would have made a number of people who voted for Amendment A purely to protect IM26 not vote for it.
    3) Had she stayed home to campaign against it. She could have spent the effort and her (inexplicable in ways that boggle the mind) popularity to push for no. But she was out of state campaigning for Trump and building up her personal campaign war chest.

    Had she done these things, I’m reasonably certain that this would not have passed.
    She has no one to blame but herself.

  25. Paladn 2020-12-27

    Cory, despite some concern of others, I appreciate your use of “long posts” and your apparent use of documentation and research.

  26. Richard Schriever 2020-12-27

    Cory, “…..the Legislature will only stop doing that when voters make clear that there are consequences to overturning initiatives…..”. That is correct if and ONLY of the voters make it unconstitutional for them to do so – via a voter initiated and approved amendment.

  27. grudznick 2020-12-27

    grudznick disagrees a bit with Mr. Renli. To his point numbered 1, hemp will not be a cash crop for farmers. Any farmers who think so are doped up on the demon weed. To his point numbered 2, there is some validity here in that the ignorant voters who fell for the big-dark-out-of-state money got all confused by the amendment lettered “A” and the “medical weed” issue and just voted aye on both because they didn’t understand. If the medical weed was in place, the backers of the demon weed toking just to get all wigged out and mellow before doing criminal acts wouldn’t have been able to hoodwink the voters. So I mostly agree with Mr. Renli’s point number 2. To Mr. Renli’s point numbered 3 I don’t disagree much at all.

  28. Cory Allen Heidelberger Post author | 2020-12-27

    Paladn, I’m glad you, BCB, and a handful of others may find this text useful. I’ll do my share of one-article, one-quote blips (although Twitter scratches that itch better), but I’ll continue to use the blog as a brief book for ongoing reference and research (for which Twitter, Facebook, and other social media platforms are mostly useless).

  29. Cory Allen Heidelberger Post author | 2020-12-27

    Noting Mr. Renli’s points, I will point out that Noem rejected hemp in 2019 but then flip-flopped at the beginning of the 2020 Session, when it was clear that IM 26 and Amendment A were headed for the ballot. She still dawdled on getting our hemp plan to the USDA; had she hustled that plan along and been able to come out earlier, say in summer, saying, “Hey, look! We have hemp in the chute, ready to go for our farmers; we don’t need Amendment A for that,” she could have pulled a few more voters toward a compromise to not put pot in the constitution and leave our liberalization to IM 26, the medical marijuana measure, which Noem could have more easily killed or hamstrung in the 2021 Legislature.

    Overall, Mr. Renli does get me wondering to what extent Noem’s irrationally stubborn and poorly evidenced absolutism about cannabis may have driven some voters to the pot-Yes column this time. After all, if just hearing a lot of noise and excessively long blog posts about the topic can reverse votes, imagine what the Governor’s far-better publicized rantings might do to such a fickly contrary electorate. ;-)

  30. grudznick 2020-12-27

    Your bloggings, deliciously and excessively long, reverse few votes, I’m sorry to say. But if you can get the Governor to come out and do a public ranting about one of your bloggings, you should automatically get a seat in the Legislatures where you can speak for 5 minutes on every law bill.

  31. BJD 2020-12-27

    Hemp may indeed not prove to be a cash crop. But with the bottom having fallen out of the soybean and corn markets due to Trump’s tariff war with China, our SD farmers are struggling and so are grasping at any straw available, including that of hemp growing. This has to have played into getting both the initiative and the amendment approved.

  32. leslie 2020-12-27

    You changed many of your votes from Republican to Democratic by virtue of what you have led us to understand grdz. Hard to remember the sinuous web you weave, eh?

  33. grudznick 2020-12-27

    grudznick is consistently a Conservative with Common Sense, and in fact I am a past president of the group and currently hold the office of Most Humble Breakfastmaster. As such, I set the topic of the Opening Rant and usually deliver it with some gusto.

  34. Southsider 2020-12-28

    I said this a lot leading up to the election and I think it bears repeating here as a discussion of what Noem could have done.

    The 24-65 year old, blue collar, white, non-college educated, republican in SD hasn’t bothered showing up to the polls in their entire lives, and were of the idea that “politics are dumb”. The vast majority of those people consume(d) cannabis often if not regularly. Donald Trump activated those voters in a way no candidate or issue ever had.

    26 and A being on the same ballot as Trump’s re-election bid at the height of the anti-mask, “personal responsibility” doublespeak from Noem and her staff was the perfect storm for those measures. I believe neither would ever get near as much support again. Especially if the governor is able to slow roll or even overturn this. It will just solidify their apathy towards politics and the political process beyond repair in my opinion.

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