2022 Election Preview: South Dakota Voters Get Second Chance at Adult-Use Cannabis Legalization

South Dakota voters will get a second chance to make their voices heard on adult-use cannabis legalization two years after they approved an adult-use measure in the 2020 election that was ultimately overturned by the state’s Supreme Court.

South Dakota made history in 2020 when voters approved medical and adult-use cannabis legalization on the same ballot.

“We passed Amendment A and Measure 26 back in 2020 with 54% and 74% of the vote, respectively,” Matthew Schweich, deputy director for the Marijuana Policy Project and deputy director for South Dakotans for Better Marijuana Laws (SDBML), told Cannabis Business Times. “Since then, we’ve had to fight to defend both laws. On the medical side, we’ve been successful. There have been efforts in the past two legislative sessions to severely delay implementation of the medical cannabis law, and then this year, there were a whole bunch of efforts to erode the program—make it more difficult for patients to access, make it more difficult for operators to operate. We were successful in defeating those efforts.”

RELATED: Unity Rd. Opens First Medical Cannabis Establishment in South Dakota

Efforts to defend Amendment A, the constitutional amendment to legalize cannabis for adults 21 and older, were less successful; a lawsuit brought by law enforcement and backed by Gov. Kristi Noem challenged the voter-approved initiative on the grounds that it violated South Dakota’s one-subject rule.

The rule says voters can only amend one subject at a time, and the plaintiffs in the lawsuit argued that Amendment A had five subjects: legalizing cannabis, regulating cannabis, taxing cannabis, requiring the Legislature to pass laws regarding hemp and ensuring access to medical cannabis.

The lawsuit also claimed that the adult-use legalization measure did not amend the South Dakota Constitution, but actually revised it.

A circuit judge struck down Amendment A in February 2021, and the South Dakota Supreme Court upheld the ruling in November 2021.

“The South Dakota Supreme Court made the final decision, and they issued a ruling that, in my opinion, was deeply flawed,” Schweich said. “They were really relying on a theoretical interpretation of the law instead of using common sense and looking at the reality of the situation. … Before that ruling was issued, we prepared to go back to the ballot. We didn’t know exactly how the ruling would shake out. Many mutual observers expected us to win, but we had to be prepared for the worst.”

State lawmakers attempted to restore the will of their constituents during the 2022 legislative session through an adult-use legalization bill, but the legislation ultimately stalled.

Meanwhile, SDBML gathered the roughly 17,000 signatures required to get a new adult-use cannabis legalization measure before voters in the 2022 election.

RELATED: South Dakota Group Submits Signatures to Place Adult-Use Cannabis Legalization Measure on November Ballot

“We prepared different initiatives and ultimately moved forward with Measure 27 because it was shortest, simplest, most cautious approach,” Schweich said.

Secretary of State Steve Barnett validated the petition for Initiated Measure 27 in May.

If South Dakota voters approve the measure next month, it would legalize the possession, use and distribution of up to 1 ounce of cannabis or 8 grams of concentrate for adults 21 and older. It would also allow adults to grow up to three cannabis plants at home, with no more than six plants allowed per private residence, but only in private residences located in jurisdictions where there are no licensed dispensaries.

The measure does not set a foundation for a commercial adult-use cannabis cultivation or retail program; there is no mention of a regulatory authority, licensing system or taxation structure in Measure 27.

“What’s really unfair about the ruling itself … is the [state Supreme Court’s] delay in issuing the ruling,” Schweich said. “They waited seven months to issue their ruling. And by waiting so long, they deprived us of clarity as to how the single-subject rule would be interpreted. So, not only did they overturn the will of the people from 2020, but they interfered in the next election, which is indefensible. … We actually could’ve written a more comprehensive initiative if we received the ruling faster, but in the end, we were cautious and conservative with Measure 27, which is a very good initiative. We just wish we could do more in the policy, but overall, it’s a major step forward."

However, a recent poll suggests that support for cannabis policy reform has waned in South Dakota since voters passed Amendment A nearly two years ago.

RELATED: South Dakota’s Adult-Use Cannabis Legalization Measure Could Fail, Poll Shows

The statewide poll, conducted by Mason-Dixon Polling & Strategy, surveyed 500 registered voters between July 19-22. The results revealed that 43.8% of South Dakotans support adult-use cannabis legalization, while 54.4% expressed opposition to the issue.

Schweich voiced doubts about the accuracy of the poll when it was released Aug. 24. He noted three main concerns with the poll, as previously reported by Cannabis Business Times:

1. The Mason-Dixon poll showed the lowest amount of support in Sioux Falls, which does not align with any of SDBML’s internal polling conducted since 2019 and conflicts with 2020 election results.
2. The Mason-Dixon poll showed that the second-highest level of support (44.4%) was among respondents aged 65 and older, which contradicts polls and elections results from throughout the U.S., where older populations are generally the least likely to support legalization.
3. The Mason-Dixon poll suggests a 10-point drop in support of legalization compared to two years ago in South Dakota, despite normalization and acceptance of reform generally gaining popularity in recent years throughout the U.S.