…But Bong Sales Kosher!
As one of my anonymous correspondents noted earlier this week, Initiated Measure 27 will not legalize the sale of marijuana in South Dakota. Vote Yes on IM 27, and you’ll be able to grow, possess and smoke small amounts of marijuana, but you won’t be able to exchange green baggies for greenbacks.
Matthew Schweich, leader of IM 27 sponsor-org South Dakotans for Better Marijuana Laws, sales are omitted from the initiative by design, to avoid the single-subject rule that Governor Kristi Noem exploited to give her appointed judges an excuse to throw out the last voter-approved legalization of marijuana, Amendment A:
Schweich said the gaps in the measure were by design—to stick to only one subject. If it passes, he said the legislature has three choices—build upon the state’s medical regulatory framework for recreational, repeal the measure, or make South Dakota the only state where pot is legal, but with nowhere to buy it.
“And I don’t think they’re going to choose that option. I think that the choices will be clear. It’s not going to be easy,” Schweich said. “We’re going to have to work very hard, but if we have a good strategy and plan going into the session, I do think that we could get an implementation bill passed.”
Last session, the Republican-controlled state Senate passed a regulatory framework for legal marijuana sales. The bill failed in the House [Lee Strubinger, “Legislature Needed for Taxing, Sales Structure If IM 27 Passes,” SDPB, 2022.10.21].
I dig the single-subject concern, but I remind readers that the single-subject rule is “infinitely malleable.” IM 27 may omit sales, but it covers “Possessing, using, ingesting, inhaling, processing, transporting, delivering without consideration, or distributing without consideration….” Even Kristi Noem’s sloppiest lawyer could walk into court and argue that possessing, using, and transporting are different subjects. A subsequent clause legalizes “Possessing, using, delivering, distributing, manufacturing, transferring, or selling to persons twenty-one years of age or older marijuana accessories.” If IM 27 can legalize the possessing, using, and selling bongs under the single-subject rule, why couldn’t IM 27 have included “selling” in its list of eight actions allowed for bong contents? Heck, why couldn’t the authors simply have stricken “without consideration” and allowed the remaining language to encompass sales of marijuana?
But whatever single-subject debate may arise, the fact is that IM 27, as written, as available for voter approval, will not legalize commercial marijuana activity.
As I said Thursday, if you want to buy your weed instead of growing your own, and if you are looking past your immediate cravings to fiscal policy and want to tax marijuana to boost the state budget and carve out room in the budget for food tax repeal, you can’t just show up on November 8 and vote Yes on IM 27. You also have to elect Jamie Smith so Kristi Noem can’t veto further marijuana legislation. You also have to elect Democrats to the House to replace the Republicans standing in the way of practical marijuana policy. And you have to be ready to show up in Pierre in January, February, and March to lobby those legislators and remind them of the people’s leafy will.