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No Pot: Blame Kristi, or Blame Voters?

Governor Kristi Noem’s lawsuit against Amendment A barely survived her own legal recklessness. First, her lackey law enforcement plaintiffs misfiled their challenge to the constitutionalization of marijuana as an election contest, an absolutely wrong-headed legal attack that required them to put forward evidence of voting irregularities that did not exist. Second, even after correcting that error by filing a straight constitutional challenge, Noem left the suit in jeopardy by clouding her agency behind public officials who, according to clear precedent, have no standing to sue the state that makes their public offices possible. As the South Dakota Supreme Court acknowledged in its ruling against Amendment A yesterday, the challenge would have foundered on that standing issue if Noem hadn’t fessed up, stated that she had ordered Highway Patrol Colonel Rick Miller to file the lawsuit, and “ratified” the lawsuit with her January 8, 2021, executive order.

But even with her legal bumbling and patchwork arguments, Kristi Noem remains 100% responsible for overturning Amendment A. The sole reason you can’t grow, sell, or buy recreational marijuana in South Dakota today is Kristi Noem.

Well, actually, that’s not quite fair. Kristi Noem won her lawsuit and killed pot by appealing to the South Dakota Constitution’s dubious single-subject rule, an infinitely malleable standard (i.e., a standard so vague that enemies of democracy like Kristi Noem and her lawyers can make it mean anything that serves their purposes). That single-subject rule, far from a bedrock concept of the South Dakota Constitution, was enacted just two and a half years ago, after South Dakota’s 2018 voters approved Amendment Z. That single-subject rule, drafted and put to a vote by the initiative-hating Republican Legislature, has now achieved exactly what I said it would in 2018: giving Republican lawyers ground on which to litigate any citizen amendment to death with definitions and word games. Amendment Z passed in 2018 with 62.4% of the vote (195,790 ayes); Amendment A passed in 2020 with 51.2% of the vote (225,260 ayes). Thus, some significant fraction of the voters who supported Amendment A must also take the blame for its demise because they voted for Z just two years prior.

The takeaway: voters can’t expect to make progress on specific issues like marijuana without also voting and advocating to protect the initiative process itself. The initiative process isn’t simple or sexy, but it is vital to citizens’ ability to making their voices heard. Activists who want to use that process to advance their specific causes must also budget time, effort, and cash to protecting that process from the merciless war that Republicans and corporate cronies are waging against initiative and voter rights. Protecting that process means diving into the gory details of petition and election law. It also means grilling candidates on their position on initiative and referendum and only voting for candidates who promise to uphold that process and the will of the people.

Voters failed that test in 2018, approving the single-subject rule and electing Kristi Noem, who was willing to use that single-subject rule against the people who elected her.

Voters get to retake that test in 2022, first at primary time, when they are asked by scheming, anti-initiative Republican legislators to cede more of their power with Amendment C, the anti-democracy, anti-majority rule proposal to require 60% votes to enact fiscal initiatives, then (first at primary time, then probably at general election time) when they are asked to give Kristi Noem another four years in Pierre (not to mention a lot of anti-democracy legislators another two years under the dome) to do what she wants, not what the voters want.

Study up, voters. Let’s not fail the 2022 retake.


  1. larry kurtz 2021-11-25 11:03

    Well, having a Republican secretary of state is probably good enough insurance to make the vote count always go the way Republicans want them to go. But there is a significant number of principled conservatives in South Dakota who loathe the culture of corruption in Pierre and establishment puppet masters like Lee Schoenbeck. Having lots of ballot choices could salvage democracy in my home state.

  2. Bob Newland 2021-11-25 11:51

    I’d like to buy an ad on Dakota Free Press promoting the 2022 cannabis petition drive. Anybody have any suggestions for an ad design you’d like to see on this page next time you visit?

  3. ArloBlundt 2021-11-25 14:44

    Well….they won’t leave the pot smokers alone….the “bust pot heads” industry in South Dakota employs hundreds of law enforcement, prosecution and defense lawyers, prison guards and bail bondsmen…The Republicans cannot envision replacing it…plus its so much fun to create an outlaw caste and to bully and persecute the dazed and confused members of that caste…the people have spoken and the Republicans “see someone naked and say “Who is that man”. ?? Something is happening here, but you don’t know what it is…do you, Mr. Jones.”??

  4. Nix 2021-11-25 14:50

    When we told gramps that he needed to turn over his drivers license because he
    was getting too old he replied
    “I don’t need that damn license to drive, I
    just need my truck”

    I don’t need the Dope Queen of Delusion’s permission to fire up a left hander.
    Never have
    Never will.

  5. Mark Anderson 2021-11-25 18:11

    Come on folks your queen Kristi knows what’s good for you. Why should she bother with majority rule?

  6. grudznick 2021-11-25 18:34

    Bob, I think the design should feature you wearing one of your Leonard Cohen hats with a spring or two of the demon weed tucked in the hat band, and a deranged look on the left side of your face with a gentle, bewildered look on the right. But aren’t they already floating these petitions around the Fall River?

  7. jerry 2021-11-25 21:07

    She wouldn’t have done it on the cheap. Wonder how much the liquor, beer and wine lobby paid to keep their poison

  8. Cory Allen Heidelberger Post author | 2021-11-26 07:21

    Bob, ad design: marijuana leaf, with Christmas ornaments on each prong showing Noem and other Republicans with big red NO slashes over them, text=”Weed Freedom—Petition and Vote!”

  9. Richard Schriever 2021-11-26 09:19

    I’m gonna keep posting it and you all are gonna keep Quixotecaly pretending there is another viable way.

    Consent of the Governed Act:

    “Any initiated act or Constitutional Amendment passed by a direct vote of the people, shall not be nullified or altered or amended in any way by any means other to a direct vote of the people.”

  10. Porter Lansing 2021-11-26 12:56

    SOUTH DAKOTA : YOU GET WHAT YOU GET … without question

  11. John 2021-11-26 20:47

    The SD Supreme Court whiffed at the sua sponte opportunity to strike Amendment A for ambiguity. Remember the justices at the retention elections at 2022 and 2024.

  12. bearcreekbat 2021-11-27 11:46

    mfi, while on the topic of false claims and propaganda of Kristi Noem and Fox relative to the Thanksgiving myth, here is information from the Smithsonian magazine describing the origin of that myth, including the actual relationship between the Wampanoag people and the colonists and reasons of a temporary truce.

    More detailed information describing the events of the very early 1600’s can be found in the excellent research work of Roxanne Dunbar-Ortiz in “An Indigenous People’s History of the United States.” She points out the devastation inflicted by colonists at that time on the friendly Powhatan Confederacy, such as John Smith’s threat “to kill all the women and children if the Powhatan leaders would not feed and clothe the settlers as well as provide them with land and labor.” Smith carried out this threat in 1609. Likewise, 16 years after the 1620 landing of the Mayflower the colonists, colonist John Mason lead an attack targeting a Pequot fort known to be occupied by “only women, children and old men.” Colonist slaughtered most of the occupants in the initial attack, and then burned the structures. All of the unfortunate people that were not killed in the initial attack were reportedly then burned alive.

    Friendly, indeed.

  13. mike from iowa 2021-11-27 12:14

    Enlightening read, bcb. I remember the Thanksgiving claptrap we were taught in school. How we were one with the noble Redman. Never once gave the Indians a thought because, except for color, they acted like we did, or so i was taught.

    Noem and magats are jokes of alleged human beings. Too bad they have so much power over so many.

  14. Porter Lansing 2021-11-27 12:17

    Thank you, so much BCB.
    – Native peoples (savages, as they were termed by Europeans) are the partial subject of the book I’m reading. It’s just out.
    “THE DAWN OF EVERYTHING” by Graeber and Wengrow.
    – It explores the false narratives built by Jesuits to explain how “savages”, with none of the teachers Jesuits had read, could argue and construe logic to such a refined degree that an entire socio-system had to be built by the Catholic Church just to explain away and disallow the phenomenon.

  15. ArloBlundt 2021-11-28 15:09

    The book “Mayflower” by the fella that wrote “In the Heart of the Sea” about whaling, is an excellent history of the early settlers and their domination of Indian tribes in Massachusetts colony. The Pilgrims and Puritans were a vicious lot.

  16. Bonnie B Fairbank 2021-11-28 16:59

    Well, this is rather rich about the Snow Queen of Aberdeen. When Kristi Lynn slithered around the sacred halls of the House of Representatives, she and her dear friend Steve did poppers in her office she was not supposed to live in. Nudge nudge, wink wink. Sometimes scorned wives blab to their blabby relatives and friends.

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