South Dakota’s marijuana advocates promised in July to wage a new initiative petition drive to put full cannabis legalization on the ballot again if the South Dakota Supreme Court failed to restore Amendment A, the marijuana measure voters approved in 2020 but which Governor Kristi Noem killed with a lawsuit last winter. The Supreme Court still hasn’t issued a ruling on Amendment A, though they could be getting close: last Wednesday, September 8, the Court ruled on Paweltzki v. Paweltzki and Paweltzki, an ugly and complicated family business dispute that started in 2012. Justices heard arguments in that case on April 27; they heard arguments on Amendment A the next day. So… any day now, right?
Amidst the uncertainty over when and how the Supreme Court will rule on their 2020 initiative, marijuana advocates still can’t launch their new Plan B initiative petitions. Their petitions weren’t even posted for public review on the Secretary of State’s website until maybe last week. The Legislative Research Council’s comments to the sponsors on their four initiatives (two amendments, two laws) are dated July 26, and LRC director Reed Holwegner apparently cc’d Secretary of State Steve Barnett and Attorney General Jason Ravnsborg, but the Secretary of State didn’t stamp the LRC comments as received until August 31.
The Secretary of State’s late receipt and posting of these draft initiatives and LRC comments has no impact on the sponsors’ petition timeline. If the sponsors received the LRC comments on Monday, July 26, and if they did they kind of swift and sure legal work I would expect from sponsor Brendan Johnson, they could have transmitted four final drafts to the Attorney General on Tuesday, July 27. The Attorney General then has 60 days to review them and prepare titles and explanations. (2021 Senate Bill 123’s additional 20-day delay doesn’t kick in until November 1.) That deadline would be September 25, but that’s a Saturday, so the Attorney General could wait until Monday, September 27 to respond. Sponsors must then quickly paste the A.G.’s language onto their petitions and submit them along with sponsor affidavits and circulator handouts to the Secretary of State’s approval. Surely the Secretary of State would recognize that time is of the essence and would approve those documents within 24 hours, allowing the marijuana petitioners to hit the streets with petitions on Tuesday, September 28.
Under that best-possible timeframe, marijuana petitioners would have only 40 days to collect 33,921 signatures for whichever version of their amendment petition, long or not quite as long, they choose to circulate. It’s actually 41 days from September 28 to the petition deadline of Monday, November 8, but the sponsors need at least that final day to get their thousands of petition sheets together and haul them to Pierre.
Amendment A sponsors had from September 11 to November 4, 2019, to circulate that proposal’s petition. In those 53 days (reserve the last day for packing and delivery!), Amendment A’s team collected 53,400 signatures, over 1,000 signatures a day, with a calculated error rate (signatures of folks not registered to vote in South Dakota, signatures missing voter info, signatures spoiled by notary errors…) of 31.26%.
Similarly productive circulators this year could gather 40,300 signatures in 40 days. Similarly sloppy circulators would spoil 12,600 of those signatures, leaving only 27,700 valid signatures, more than 6,200 shy of the required 33,921.
If marijuana advocates are going to circulate an initiated amendment petition in just 40 days this fall and successfully place that measure on the ballot, they’ll have to collect signatures even faster than they did in 2019. That kind of rush likely means a higher error rate, requiring even faster collection of even more signatures. Assume a 40% error rate from faster work, and amendment sponsors would have to collect more than 56,500 signatures, or over 1,400 signatures each day.
If a good circulator can collect 20 signatures an hour (I welcome your estimates of the best possible performance, factoring in location, pedestrian flows, and rejection rates), sponsors need at least nine circulators working eight hours a day every single day of the circulation period.
In 2019, sponsors spent $16.87 per signature to make the Amendment A petition drive succeed. Given the tighter labor market, higher costs, and extra challenges of getting people to stop and talk to a stranger while safely circulating a petition during a pandemic, plus the challenge of starting and conducting a petition in 25% less time, I conservatively guesstimate that per-signature costs would be 25% higher this fall. $16.87 per signature, times 125%, times 56,500 signatures… that’s $1.19 million.
Amendment A sponsors South Dakotans for Better Marijuana Laws ended 2020 with $749,585.44 in the bank. They’ve probably burned up some fraction of that sum on lawyering against Kristi Noem. But even if they’ve only spent $100K on ten months of lawyering before state circuit and Supreme courts, they still need to raise nearly a half-million more to cover immediate costs of a crash petition drive.
The timeline is not as dire if the marijuana backers choose to circulate one of their initiated law petitions. Thanks to the latest court victory by SD Voice (yeah, that’s my ballot question committee, fighting to protect the initiative and referendum process for all comers), marijuana advocates have until May 3, 2022, to circulate petitions to change state law instead of changing the South Dakota Constitution. That’s 163 days to circulate a petition before boxing up all those papers and hauling them to Pierre on May 3. Keep it neat: take Thanksgiving, Christmas, and New Year’s off, plan 160 days of circulating, and that’s four times as much time to collect half as many signatures as the constitutional amendment would require. Assume the same sloppy 31.26% error rate from Amendment A in 2019, at least not worsened by the rush an amendment petition drive would take, and initiated law petitioners would need at least 24,700 signatures, or roughly 160 signatures a day. Assume the same costs as above, and that initiated law petition drive costs $520,000, which South Dakotans for Better Marijuana Laws may still have in the bank, if their lawyers haven’t gone ape on billing.
Putting marijuana on the ballot again in 2022 as a constitutional amendment will require a really heavy lift, faster and more costly than any recent statewide petition drive in South Dakota. Putting marijuana on the ballot in 2022 as a proposed law rather than a proposed amendment would be much easier, but sponsors would run the risk that the 2023 Legislature could repeal their initiated law.
And the terrible thing is, marijuana advocates still don’t know if they need to invest their time and treasure in a petition drive. The South Dakota Supreme Court could rule tomorrow (I just checked the UJS website one more time—no ruling posted today!) that Amendment A is legal, obviating the need for the Plan B petition drive… or the Supreme Court could continue to deliberate, forcing the sponsors to spend big money to flood the state with circulators on September 28, only to receive a favorable ruling from the court late in October, thus wasting their half-million-plus expenditure.
But let’s not think about that dread prospect. Instead, let’s be pessimoptimists: Republicans appointed all five Justices; Noem appointed two of them. There’s no way the Court will rule against the Republican Governor and rule for Amendment A. Therefore, sponsors, get ready to launch Plan B on September 28!