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:
- 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.
- 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.
- 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.
- 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.