Governor Kristi Noem’s lawyers went to court to fight Amendment A, South Dakota’s impending marijuana constitutionalization. On one key point, the Attorney General’s office, which is supposed to be defending the people’s vote, appears to have helped Noem’s lackeys make their case.
One of the arguments raised by the sponsors of Amendment A, who are also intervening in court on defense, is the doctrine of laches: because Noem is attacking the process by which Amendment A qualified for the ballot and not the amendment itself, Noem had to bring her case against the measure before the election, not after the voters spoke. Noem gambled that voters would reject the measure while she was off gallivanting across the country, lost that gamble, and waited until November 20 to send her minions to court, so Noem’s lawsuit is too late.
Noem lawyer Bob Morris argued before Noem appointee Judge Christina Klinger the exact opposite, that Noem’s minions, Pennington County Sheriff Kevin Thom and Highway Patrol Colonel Rick Miller, could not take Amendment A to court until after the voters approved it:
Morris, meanwhile, argued Thom and Miller could not have challenged Amendment A before the election, because the South Dakota Supreme Court has said it will not hear preemptory challenges to proposed ballot measures or proposed legislation before they have passed.
“There was no legal way or avenue or vehicle prior to the election to challenge Amendment A,” Morris told Klinger [Jonathan Ellis, “Legal Marijuana Amendment Comes Under Fire in Pierre Courtroom,” that Sioux Falls paper, 2021.01.27].
Brendan Johnson, lawyer for the sponsors of Amendment A, stuck to that argument, but Ellis indicates that the Attorney General’s Office mostly conceded that point:
That proved to be the one area of agreement between the challengers and the South Dakota Attorney General’s Office, which is legally required to defend the amendment. In his opening remarks in the case, Assistant Attorney General Grant Flynn said the South Dakota Supreme Court rarely issues advisory opinions and the court does not engage in hypotheticals before something has passed [Ellis, 2021.01.27].
Both Morris and Flynn are wrong. Courts can and should hear challenges to ballot questions before the election. Just last September, the Nebraska Supreme Court heard a challenge to a pending ballot measure on medical marijuana and threw it off the ballot for violating Nebraska’s single-subject rule. In 2014, the Supreme Court of Colorado heard a single-subject challenge before the election against an effort to repeal the Colorado Constitution’s provisions for recall elections and struck the measure from the ballot. In 2000, the Florida Supreme Court issued an advisory opinion prior to the election that an initiative dismantling affirmative action violated Florida’s single-subject rule and blocked the measures from going to a vote.
The single-subject rule at issue in South Dakota, the clause we ill-conceivedly* added to Article 23 Section 1 in 2018, says, “No proposed amendment may embrace more than one subject.” The Constitution refers to “proposed” amendments, not “enacted” amendments. When an amendment is proposed, it is subject to and adjudicable under the single-subject rule. If Noem thought Amendment A violated the single-subject rule, she needed to hustle into court right away, before the election, to stop that illegally proposed amendment from sullying our sacred ballot.
Precedent from other states’ application of their single-subject rule and the language of South Dakota’s own single-subject rule make clear that Noem and her lawyers had the opportunity (and the Governor would say duty)
* * *
If we examine only the words of the single-subject rule, two extreme interpretations are possible. On the one hand, we might plausibly conclude that no initiative could possibly violate the rule. Consider the most bizzare assortment of unrelated provisions you can imagine. The mere fact that the provisions have been put together in one measure makes them constitute a “single subject,” if only for purposes of discussion and study. On the other hand, the language of the single-subject rule also permits an interpretation that would abolish the initiative process altogether. That is, it is impossible to conceive of a measure that could not be broken down into parts, which could in turn be regarded as separate subjects [Daniel H. Lowenstein, “California Initiatives and the Single Subject Rule,” UCLA Law Review, v. 30, 1983, p. 942; cited in Kenneth P. Miller, “Courts as Watchdogs of the Washington State Initiative Process,” Seattle University Law Review, v. 24, 2001, pp. 1077–1078].
Law should consist of clearly definable terms. South Dakota law offers no definition of “single subject”; Lowenstein suggests such a definition is impossible. Holding ballot question sponsors to a standard that is impossible to define and thus subject to the whim of any presiding judge is unworkable and unfair.