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South Dakota recently voted to legalize adult recreational consumption of cannabis. The amendment, which was titled Amendment A, passed in the State Senate with a 52.4% majority. However, it was found to be unconstitutional by Circuit Judge Christina Klinger due to a technicality. As the South Dakota Supreme Court hears arguments for Amendment A – what will the outcome be?

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The ballot, which was titled “An amendment to the South Dakota Constitution to legalize, regulate and tax marijuana; and to require the legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use,” was said to not conform to the State’s law regarding amendments which are supposed to have only one subject. The plaintiff argued that the amendment has five subjects, and therefore violated the State’s one-subject rule and could not pass into law.

However, the defendants of Amendment A, South Dakotans for Better Marijuana Laws, disagreed. They argued that the amendment had only one subject- cannabis. It is to this subject that all the provisions are intended. The lawyer for the team supporting the amendment made a similar argument to the State Supreme Court.

Arguments for Amendment A

South Dakota Supreme Court and Amendment A - What's Next?

In his opening remarks to the State’s Supreme Court, Brendan Johnson, the attorney for Amendment A, argued that this interpretation of the one-subject rule was not in the spirit of makers of the rule and that South Dakotans could have expected the law to include everything that is included in the title and provisions. He said, “It is designed to shield the people from legislation, from crafty legislators, who before the legislation passes, they’ll insert something that the people weren’t expecting. They would have no reason to expect that this could happen. That has been the purpose of this single-subject rule. Same when it comes to amendments.”

Mr. Johnson then went on to ask the court, “Is there something in the amendment that is so outlandish, so outside the bounds, that the people of South Dakota couldn’t possibly have known what it was that they were really voting for? That didn’t apply here in South Dakota. We had a vigorous debate—probably the most intensely scrutinized piece of legislation in my lifetime, in a generation, that the people ever voted on.”

Arguments Against Amendment A

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In her opening remarks in front of the Supreme Court justices, Lisa Prostrollo, an attorney who argued in opposition of Amendment A, said the constitutionality of the voter-approved ballot measure is not a matter of legalizing cannabis, but rather a matter of the accurate application of the law governing amendments and revisions to the constitution.

She said, “And it’s not about the multitude of other subjects that are packaged within Amendment A. It’s about the rule of law, and it’s about enforcing the limitations that the people placed on their ballot initiative under the constitution. Those limitations are essential to preserving the integrity of our State’s founding documents. The circuit court recognized this when it struck down Amendment A, and we’re asking this court to do that same.”

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So far, the judges of the Supreme Court seem to agree with Ms. Postrollo’s interpretation. Justice Janine M. Kern of the Supreme Court said she counted fifteen subjects and fifty-five subsections. However, she also asked the parties opposed to the amendment why they did not challenge it before the vote.

Many States and entities are watching this case with a lot of interest. If the opposition is successful in getting Amendment A outlawed due to a minor technical issue, this will present a new roadblock to the nationwide efforts to legalize recreational cannabis. On the other hand, many are worried about the case’s implications for the legalization by vote model that all states are using to legalize cannabis. If courts can go against the will of the people with such minor technical claims, then all the states that have voted to legalize recreational cannabis could have to go to court to get their votes upheld.

South Dakota Supreme Court and Amendment A – What’s Next?


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