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House Ditches Legal Pot and Noem’s IM 26 Delay; Medical Marijuana Back on Track for July 1 Enactment

I do not plan to use marijuana medicinally or recreationally, so the Legislature’s decision yesterday to abandon its Frankensteined monster of delaying medical marijuana and legalizing recreational pot doesn’t affect my personal life. But the fact that the Legislature just killed one of Governor Kristi Noem’s biggest schemes against the voters of South Dakota promises a natural high of political surprise and complication.

Last month, after killing Amendment A, the voter-approved constitutionalization of marijuana, in court, Governor Kristi Noem turned to sabotaging Initiated Measure 26, the voter-approved medical marijuana bill. Pretending that the two years between the time Initiated Measure 26 was proposed in 2019 and its statutory enactment date of July 1 this year was not enough time for her and all of state government to study and plan for the enactment of medical marijuana, Governor Noem and her House flunky Speaker Spencer Gosch proposed suspending IM 26 for another year. That further flouting of the voters’ will prompted outrage and the potential for all sorts of political grief for Noem and her party. To avoid voter revolt, the Senate on Monday surprised us by offering a surprising compromise: maintain a reduced delay of the medical marijuana rollout, but allow the possession and ingestion of marijuana, with or without a doctor’s note.

Evidently the House found legalizing marijuana was too high a price to pay for sandbagging another voter initiative. Yesterday afternoon, the House voted 24–46 against the Senate’s radical revision of House Bill 1100. The conference committee of Representatives Gosch, Kent Peterson, and Oren Lesmeister and Senators Blake Curd, Maggie Sutton, and Michael Rohl couldn’t agree on a compromise, and the House voted 67–3 to give up.

Noem’s delay is thus toast, and IM 26 remains on track to become law on July 1.

The Legislature has taken numerous steps to defy the voters and water down the constitutional power of the people to initiated laws like IM 26. Their surrender to IM 26, despite intense pressure from the Governor to undo the people’s will on medical marijuana, has numerous political implications:

  1. Had legislators passed the Governor’s clean version of HB 1100, they’d have dirtied their hands with another highly visible and highly outraging repeal of a voter-approved initiative. Smart campaigners would have been able to mobilize voters against legislators with this issue in 2022. Legislators have now craftily avoided that blame, leaving it entirely on Governor Noem’s shoulders. Campaigners who want to hold the Legislature’s war on initiative and referendum against them are now stuck talking about the crucial but boring minutiae of petition law—font sizes, 20-day delays, the assignment of arbitrary judicial power to the otherwise strictly ministerial Secretary of State—which won’t mobilize massive marches on Pierre.
  2. Governor Noem made delaying medical marijuana a headline issue. With all the cameras on Kristi and her Presidential aspirations, the Legislature just trashed that issue, declaring wrong her assertions that the state cannot implement IM 26 by July 1.
  3. This rejection puts mud on Noem’s face as she heads to her private Fox News video studio, mud that she can’t wash off with blatherings about attacks from the media and liberals. The eight Democrats in the House all voted for the Senate version of HB 1100 and thus would have kept her delay alive. So ultimately, this repudiation of Noem is all Republican, giving her primary opponents (and I’m thinking more about 2024 than 2022) another safe club to use against her to say she’s not fit for a truly challenging executive position.
  4. Marijuana advocates may now be off the table as a force in initiative and referendum petitioning this year. Marijuana advocates have gotten what they wanted on medical marijuana. They know IM 26 had far more support than Amendment A, the measure that included recreational pot, and a big petition push for recreational pot on its own might not rally as much support. Besides, whatever cash the marijuana lobby has left is being focused on the court battle over Amendment A… and that money may be a safer and more broadly useful investment than a dubious petition drive. Any vision of unifying numerous aggrieved special interests into some massive political revolt thus may not benefit from the energy of experienced and irate cannabis activists.

Of course, these political calculations could be fouled by another surprise. Governor Noem could call a Special Session right after Veto Day to resurrect HB 1100 as a referendum-proof emergency bill. She could quietly twiddle her thumbs, telling her minions not to lift a finger to implement IM 26, then call a Special Session on June 30 to delay or flat repeal IM 26, just to minimize the amount of time marijuana activists would have to draft a replacement initiative. Or she could shift from Legislative belt to judicial suspenders, asking a court to enjoin IM 26 while she and her high-priced lawyers come up with Constitutional arguments against IM 26.

But for the moment, the Legislature has blown up the Governor’s dam, allowing Initiated Measure 26 to flow to the July 1 enactment the voters demanded.

14 Comments

  1. Neal 2021-03-11

    Another remarkable turn of events. This is the first time I’ve ever seen what I’d call courage from a group of South Dakota legislators.

    That said, there’s no way she gives up quietly on this…

  2. Eve Fisher 2021-03-11

    Look, as a 67 year old woman with severe arthritis, all I want is gummy bears at bedtime so I can ease the pain without eating my stomach up with endless Advil and sleep. Why this has Kristi and the conservatives clutching their respective pearls, I have no idea.

  3. Ryan 2021-03-11

    Hopefully all of this will be immaterial soon. Brendan Johnson and Tim Billion submitted their appeal yesterday for Amendment A. I have read thousands of court briefs and I will say – this thing is a masterpiece. If anybody cares to read it, it’s a wonderful piece of work that correctly excoriates the circuit court judge, noem, and the legislature for their failures and corruption. You can download the 87 page document from the kelo article published yesterday:

    https://www.keloland.com/news/capitol-news-bureau/pro-pot-side-appeals-to-s-d-supreme-court/

    The Supreme Court needs to be quick and clear in their reversal of that ridiculous circuit court opinion to avoid this kind of crap in the future.

  4. bearcreekbat 2021-03-11

    Thanks to Ryan for linking the article with the brief submitted by proponents of Amendment A. I agree that it is a well written and relatively easy to read and understand legal brief. I was especially surprised by the strength of the proponents’ standing arguments. It will be interesting to read the Plaintiffs’ responsive brief.

  5. Sion G. Hanson 2021-03-11

    Ryan, thanks for posting this document. It appears to me as a citizen that this case is cut and dried. At 62, I have only called my legislator on one occasion and it was over my concern about this topic. The state executive trying to thwart the will of the people is wrong, and I think our Constitution will prove me right. GOOD lawyers vs. government lawyers in this example.

  6. Arlo Blundt 2021-03-11

    Hardly remarkable, though you have to give the Senate Leader of the Party credit for piecing together a majority A masterful job of snookering the Neanderthals in the House. The Party (one and only right now) has decided to move ever so slightly toward the center and away from Governor Noem. They are not ready to see a democratic resurgence in the eastern tier of counties.

  7. SD is 20 per cent nonwhite 2021-03-11

    70% of the people wanted this.

    A true victory!

    The extinction of the Republican Party is next.

  8. SD is 20 per cent nonwhite 2021-03-11

    Why did 8 Democrats vote for the HB 1100 and the Noem delay?

    Vote them out too.

    Biden is a progressive. Maybe a Progressive Party soon?

  9. happy camper 2021-03-11

    At the moment Delta 8 is legal and sold in gummy bear form at various places around the state, like tobacco shops. Numerous places in Sioux Falls. Do your own google you might find this is an acceptable alternative until they get this sorted out.

  10. Cody 2021-03-11

    “Look, as a 67 year old woman with severe arthritis, all I want is gummy bears at bedtime so I can ease the pain without eating my stomach up with endless Advil and sleep. Why this has Kristi and the conservatives clutching their respective pearls, I have no idea.”

    Eve Fisher,
    I’m in a very similar situation. I’ve been on medication for many many years. The toll it’s taken on my liver, kidneys, endocrine system is gradually becoming worse. I just would love an opportunity to get off of the pills with the help of legal & safe marijuana use. There are many like us I am sure.

  11. Janet Evans 2021-03-11

    The answer is hundreds of years of bias and stigma. A big, fat thank you to SD legislators who are giving thumbs up to legalization of cannabis. Now, no caps on % of THC, please. I need all I can get! 63 and starving to be LEGAL.

  12. Eve Fisher 2021-03-12

    Cody, everyone I know in my age group – and up – wants legal and safe marijuana because chronic pain is… well, chronic. And the pharmaceutical companies aren’t jumping all over themselves to provide good pain relief that isn’t fiercely addictive.

  13. John Dale 2021-03-13

    Someone on her team is driving this .. legal cannabis is a personal freedom issue.

  14. V 2021-03-14

    Wow, what century are we living in?
    Why do we have to fight so hard for a personal freedom issue that 70% of the residents voted for?
    Mind you, that’s minus teen tokers and adult pot heads who can’t or don’t vote and I know plenty.
    Voter turnout was about 74%.
    History shows that in my small town, the Citizens Against Virtually Everything (CAVE), turn out for every vote. But I do know a few veterans in that group that voted yes on both pot issues. They are tired of hiding it’s use; not ashamed, not guilty, and no regrets for fighting for personal freedoms. AND they want alternatives to smoking it.
    Noem needs to think about them. She needs to replace those “presidential hopeful pants” with her “big girl governor pants” and implement what a huge majority of the residents want and some really need.

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