Travis Ismay dutifully rewrote his proposed initiative to show all 95 sections of medical-marijuana law that he wants to repeal, and now Attorney General Marty Jackley has dutifully published his draft title and explanation of that initiative for our review and comment:
Title: An Initiated Measure Repealing South Dakota’s Medical Marijuana Program.
Explanation: In the 2020 General Election, the voters approved the creation of the South Dakota medical marijuana program. By approving that program, the voters legalized the possession, use, cultivation, manufacture, and sale of marijuana and marijuana products, under certain conditions, for medical purposes.
This initiated measure repeals South Dakota’s medical marijuana program. If approved, that repeal makes all possession, use, cultivation, manufacture, and sale of marijuana and marijuana products a crime.
This initiated measure does not affect laws dealing with hemp. Marijuana remains illegal under federal law [Attorney General Marty Jackley, draft ballot explanation for Travis Ismay’s medical marijuana repeal initiative, 2023.07.27].
Now remember, the public comment that the Attorney General is taking until August 6 (a Sunday!) to inform the final text he will draft to explain this initiative to voters by August 16 is not comment about the merits of medical marijuana or South Dakota’s regulation thereof. The Attorney General seeks and will consider only public comments dealing with whether, per SDCL 12-13-25.1, his title concisely states the subject of the proposed initiative and his explanation objectively, clearly, and simply summarizes the purpose and effect of the proposed initiative.
To that end:
- The Attorney General’s first sentence and the beginning of the second may bias voters against this initiative. That opening text reminds voters that they approved medical marijuana just three years ago. Mentioning the popular origin of the medical marijuana program does not enhance the understanding of the objective legal effect of the proposed repeal. It only serves to arouse the tendency voters have shown to get owly about efforts to repeal things they approve. For complete objectivity, the Attorney General should strike the first sentence and begin the explanation with, “South Dakota law allows the possession, use,….”
- The second sentence buries the focus of the initiative and the current scope of South Dakota marijuana law by not mentioning medical marijuana until the end. It’s a tricky sentence to fix, but I recommend moving “medical marijuana” up at least one step: “South Dakota law allows the possession, use, cultivation, manufacture, and sale of marijuana and marijuana products for medical purposes, under certain conditions.“
- On that same note, “under certain conditions” adds little if any value to the explanation. Ismay’s initiative doesn’t fuss with any specific conditions; it simply wipes out the entire medical marijuana chapter. I recommend striking that phrase to keep the explanation simple.
- The fourth sentence again buries the focus on medical marijuana by oddly referring to making “all” possession, use, cultivation, manufacture, and sale of marijuana and marijuana products a crime. While practically true, criminalizing all marijuana activities is not the technical meaning of the words on this petition. Consider: the 2024 Legislature could enact a law legalizing and strictly regulating research on recreational marijuana use. That law could come into effect during Session, while Ismay could be circulating his petition. Ismay’s initiative would not repeal statutes allowing researchers to grow and use marijuana, so the Attorney General’s explanation would be false. The Attorney General should thus revise the fourth sentence to strictly address the scope of this initiative: “If approved, that repeal makes the possession, use, cultivation, manufacture, and sale of marijuana and marijuana products for medical purposes a crime.”
- The last sentence about federal law is superfluous. The initiative cannot change federal law. The first paragraph of the draft explanation says medical marijuana is legal in South Dakota, so federal law on marijuana must not be relevant. Mentioning federal law only confuses the issue; for clarity, the Attorney General should strike this last sentence.