Amendment A is toast, for now. Sixth Circuit Judge Christina Klinger yesterday nullified South Dakotans’ vote to write recreational marijuana, industrial hemp, and the regulation and taxation thereof into our Constitution.
Judge Klinger rejected the plaintiffs’ effort to frame their challenge to Amendment A as an election contest, saying that the complainants showed no evidence of irregularities in the conduct of voting or counting of votes. “Contestants have not alleged any irregularities during the 2020 General Election, much less shown anything suggesting the will of the voters was suppressed. As a result, the issues alleged are not appropriately resolved in an election contest cause of action.”
Judge Klinger chose instead to suppress the will of the voters herself by accepting the plaintiffs’ arguments that Amendment A encompasses multiple subjects and worked such a drastic change in our system of government that it had to arise from a constitutional convention, not the initiative petition process.
The defenders of Amendment A argued that Amendment A addressed the single subject of cannabis. Judge Klinger held their own words against them, noting that Amendment A only twice, in the separate definitions of primary terms marijuana and hemp. Judge Klinger says those very definitions define marijuana and hemp as separate subjects. Klinger goes on to identify Amendment A’s civil penalties for certain marijuana-related violations, restrictions on professional discipline for marijuana-related activities, the 15% excise tax on marijuana sales, and the allocation of that tax revenue to public schools and the general fund as “not ‘reasonably germane” to the overall topic of legalizing marijuana” and thus in violation of the single-subject rule for constitutional amendments enacted by voters in 2018.
In other words, voters cannot enact any comprehensive or complicated policy reforms via constitutional amendment. They must only deal with the narrowest issues in their proposed constitutional amendments. Any implications for enforcement, regulation, or taxation must be either parsed into multiple and thus impractical ballot measure campaigns, shoehorned into omnibus initiated measure petitions that the Legislature can overturn before enactment, or simply left to the will of the unresponsive Legislature and Governor who seek to consolidate their control over all policy manners in their elitist Republican hands.
Recognizing that her single-subject ruling would have sufficed, Judge Klinger nonetheless proceeds “in the interest of efficiency and the public importance” to lay down her judicial marker on the question of whether Amendment A was an amendment or a revision. Under the plaintiffs’ interpretation of Article 23 of the South Dakota Constitution, amendments—limited changes to the Constitution—can reach the ballot through the initiative petition process, while revisions—more extensive changes—must arise from a constitutional convention, which can be called by a three-fourths vote of both chambers of the Legislature or by a majority vote of the people called by initiative petition.
Judge Klinger said Amendment A “is not a drastic rewrite of the South Dakota Constitution.” She said Amendment A is not as extensive as a revision in an oft-cited California case on the subject of amendments versus revisions. “However, it does institute ‘far reaching changes in the nature of our basic governmental plan.'” Klinger identified multiple changes to government authority that cross her threshold of constitutional revision:
- Amendment A grants exclusive power to license and regulate aspects of marijuana to the Department of Revenue, boxing out the Legislature’s authority.
- Amendment A takes away the Legislature’s power to enact civil penalties for public marijuana use.
- Amendment A takes away the Governor’s power to reallocate authority over the licensing and regulation of marijuana to departments that might more efficiently manage pot policy.
- Amendment A “unconstitutionally waives the State’s sovereign immunity” and usurps the Legislature’s power to set the rules for how and when the state may be sued by empowering residents to sue the Department of Revenue if it failed to enact pot rules by April 1, 2022.
Judge Klinger also rejected the argument that the plaintiffs should have waged their complaint before the election. She said just the opposite: the courts don’t hear arguments against laws or constitutional amendments until the legislative process is complete and the law or amendment has been approved. Judge Klinger said hearing the plaintiffs’ challenge before the election would have violated the judiciary’s “principle of noninterference.” Judge Klinger’s ruling runs counter to the precedent set in numerous other states where courts have blocked initiatives from appearing on the ballot due to violations of the single-subject rule.
So put the doobage down, friends and neighbors: as it stands, pot stays illegal in South Dakota. Amendment A’s sponsors plan to appeal (and let’s see if the big money behind this measure have the guts to stick with a fight about broader initiative rights and constitutional law instead of the measly merits of marijuana), but for now, the only way you’re getting cannabis in your system come July 1 is with a doctor’s prescription.