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Marijuana Advocates Consider Campaign to Repeal Single-Subject Rule, Vote Again on Marijuana

In 2018, South Dakota voters incorrectly and anti-democratically approved Amendment Z, the single-subject rule for proposed constitutional amendments. In 2021, Governor Kristi Noem and the South Dakota Supreme Court used Amendment Z to kill Amendment A, the 2020 initiated amendment that voters approved to legalize marijuana. Marijuana advocates have initiatives in the hopper to redress both injustices.

Eagle Campaigns, the firm that unsuccessfully backed Initiated Measure 27, the 2022 marijuana ballot initiative, has proposed a constitutional amendment to repeal the single-subject rule and an initiated law to legalize adult-use marijuana.

The single-subject repeal, submitted in final form to the Attorney General for review on January 17, by Eagle Campaigns associate Quincy Hanzen of Sioux Falls, simply strikes the offending language of Amendment Z from Article 23 Section 1:

Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject. If more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately. [Quincy Hanzen, proposed constitutional amendment, submitted to Attorney General’s office 2023.01.17]

The Attorney General has until March 20 to provide the first draft of his title and explanation for this simple amendment; he then has 10 days to take public public comment and 10 more to consider that comment and write his final title and explanation, due April 10.

Marijuana advocates had a single-subject repealer teed up in September 2021 but, due to the short time remaining to collect petition signatures, chose to focus on their initiated measure to legalize marijuana. Having started the initiative process earlier this cycle, Hanzen and Eagle Campaigns could have nearly seven months, until November 6 of this year, to circulate petitions and collect the 35,017 signatures necessary (10% of the 2022 gubernatorial vote) to place an amendment on the 2024 ballot.

This proposed amendment is a good pro-democracy reform: the single-subject rule unnecessarily restricts citizens from pursuing sensible and comprehensive reforms via constitutional amendment while giving powerful elites like Governor Noem legal grounds to challenge on subjective and unpredictable semantic grounds the legality of any initiated amendment they don’t like.

But interestingly, this proposed repeal of the single-subject rule for constitutional amendments does not work in tandem with Eagle Campaigns’ other proposed initiative, an initiated measure proposed by Eagle boss Matthew Schweich of Sioux Falls to legalize adult use of marijuana. Amendment Z only affects constitutional amendments. The single-subject rule for initiated laws rests elsewhere in the South Dakota Constitution, Article 3 Section 21: “No law shall embrace more than one subject, which shall be expressed in its title.”

Schweich seeks to put marijuana on the ballot again as a law like 2022 Initiated Measure 27, not in the Constitution like 2020 Amendment A. Thus, Hanzen’s amendment would not protect Schweich’s initiated law from a single-subject challenge if both were approved by voters in 2024. Even if Hanzen’s amendment covered laws as well as amendments, it would not be in effect until July 1, 2025, so it would not be active in time to protect any 2024 ballot initiative from a single-subject challenge.

And it would not be any harder for Governor Noem or other reefer-panickers to challenge the proposed initiated law on marijuana on single-subject grounds than it was for Noem to challenge Amendment A. Schweich’s new proposal defines hemp and marijuana, which the court in the Amendment A case said are separate subjects. The new initiative addresses possessing, using, ingesting, inhaling, processing, transporting, delivering, distributing, planting, cultivating, harvesting, and drying marijuana, all of which can be deemed by a suitably semantic lawyer and judge to be different subjects. The initiative addresses individual cultivation and use of marijuana as well as the licensing of commercial marijuana dispensaries, and Noem’s lawyers could easily contend that growing pot for personal enjoyment and trading in cannabis products for profit are two very different subjects.

Schweich appears not to have yet submitted final language for the marijuana initiative to the Attorney General for review. If Schweich does so today, the AG’s final explanation would be due 80 days from now, about May 1, and marijuana petitioners could hit the sunny streets with that petition shortly thereafter.

16 Comments

  1. Richard Schriever 2023-02-09

    And yet – no approach to any of this addresses the real issue: the legislature can dink around with or outright repeal anything that is passed by popular vote.

    There is an answer to all of it, of course,

    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.”

  2. All Mammal 2023-02-09

    We need that act, Mr. Schriever. South Dakota, we need the Consent of the Governed Act. We rely on Dakotans for Health an awful lot. Any suggestions on who to collaborate with to fire this up? It already being written is a huge bonus.

  3. Anthony Renli 2023-02-09

    I’m think that act is a good idea IF there is a time-limit.
    Say 3-5 years.
    Because we don’t want an act passed by initiated measure 20 year ago that is having unintended consequences TODAY something that needs to go to a popular vote. 3-5 years or something like that gives time for the measure to take the form of law and prevent the state government from just dumping things before they take effect.

  4. P. Aitch 2023-02-09

    Until marijhuana is decriminalized the war won’t end. It’s the way to show the fearful that nothing bad will happen.
    – The following states have passed laws either fully or partially decriminalizing certain marijuana possession offenses. Typically, decriminalization means no arrest, prison time, or criminal record for the first-time possession of a small amount of marijuana for personal consumption. In most decriminalized states, these offenses are treated like a minor traffic violation.
    States with Marijuana Decriminalization Laws
    Alaska* California* Colorado*
    Connecticut* Delaware District of Columbia*
    Hawaii Illinois* Louisiana**
    Maine* Maryland* Massachusetts*
    Minnesota** Mississippi Missouri*
    Nebraska Nevada* New Hampshire
    New Mexico* New York* North Carolina**
    North Dakota** Ohio** Oregon*
    Rhode Island* Vermont* Virginia*

    * These jurisdictions have subsequently approved legislation legalizing the adult use and personal cultivation of cannabis.
    ** These states have partially decriminalized certain marijuana possession offenses. Although the law still classifies marijuana possession offenses as criminal, the offenses do not carry any threat of jail time.

  5. ToniI. Thomas 2023-02-09

    Yes they should legal weed for people with health problems

  6. ABC 2023-02-09

    Single subject amendment impeaches the voters but hey
    they voted for it!

    No matter how many times the people pass something, dugaard and noem and their smell alikes will strip it down to nothing.

    Since the Democratic Party does Nothing to campaign against single subject rule or for cannabis freedom, the democratic party us officially part of the Republican machine.

    Voters voting for Republicans and quasiRepublican Democrata, the machine will not change.

    The Libertarians and Progressives and other groups have to get a majority vote so they can coalition together Progressive Governor Libertarian Lt Governor or Vice Versa.

    2100 Libertarians and thousands of Progressives who are center left can capture 55% of the vote and end this anti democracy fascism. Coalition together so you can win seats and win 60% of the legislators and Governors vote

    A vote for Republicans and Democrats is a vote against our interests and for the machine.

    I registered as Get Rich Party, which means I’m in the Other registration category.

    Others and Libertarians should seriously coalition together and win elections! The D and R parties can be retired and placed in a museum in Okaton in a while.

  7. ABC 2023-02-09

    The defunct Parties museum in Okaton can offer free fruit punch and a free bus ride to our new Capitol in Kadoka, Murdo or Ft. Pierre.

    Retire the old Capitol building. Who wants to work in a marble building?

    Freedom is new ideas! Dismantle the machine! Let’s elect a person of color for Governor.

  8. larry kurtz 2023-02-09

    Since South Dakota Governor Kristi Noem has admitted white people are too stupid to grow cannabis, industrial or otherwise, tribal nations trapped in the state are on the path to economic growth. State law doesn’t apply to sovereign nations so the Flandreau Santee and Oglala Lakota Nations have filed applications with the US Department of Agriculture to grow industrial cannabis (hemp).

    Minnesota towns like Pipestone, Luverne, Worthington, Lake Benton, Ortonville and Hendricks near the South Dakota border could reap the coming cannabis whirlwind as Governor Tim Walz urges legalization.

    The former chairman of the South Dakota Republican Party is principal of Dakota Health and Wellness, awarded a cannabis cultivation permit in Union County on 4/20 of last year, no less. By all appearances Lederman could use a little health and wellness.

  9. larry kurtz 2023-02-09

    Weed is bad, very bad for Republicans.

  10. larry kurtz 2023-02-09

    In Oregon supplies have gotten so far ahead of demand cannabis prices have plummeted as sales hover around a $billion a year.

  11. Mark Anderson 2023-02-09

    Willie needs to play more often. Say an Aberdeen Brookings, Sioux Falls, Vermintown, State fair, Sturgis, Rapid with a Mt Rushmore blast with fireworks to finish it off tour. Its a winner for sure. The fireworks would win over Kristi and she could smoke it up with Willie on stage. Think of it Ian, expanding the base. You know it needs to be done.

  12. larry kurtz 2023-02-09

    Why anyone would want to be in Mrs. Noem’s crosshairs remains a mystery so patronizing reservation dispensaries makes economic development sense!

  13. larry kurtz 2023-02-09

    Honestly? Brookings owns a research park, the hospital, the liquor store, the water, the phone company, the power company, an entertainment venue, the golf course, it’s home to South Dakota’s largest public university and a federally subsidized cheese and dairy industry. Socialism, right?

    So what does that town have to lose by bucking the inevitable lawsuits and open a dispensary?

  14. M 2023-02-12

    ABC, there are many of us who are not members of any party. “No affiliation” is what they say loudly when I vote. The 95% Republicans in the room look at me with curiosity or disgust.

    We “no affiliation” to any party tend to vote Democratic, Independent, or Libertarian. Imagine the reactions if I registered with the Pot Party.

    These Republicans in Pierre need to smoke a joint, mellow out, and mind their own business when it comes to morals, values, health, and religion. Uptight people are angry people and hate to see others unlike them having fun and chilling out. They are certainly not role models I would want my kids to emulate.

    Remember that tomorrow will be Super Bowl Monday whereby more people will be tardy to work, perhaps hung over, or absent from work all together. It’s from alcohol, not pot.

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