South Dakota Voters Said Yes to Legal Weed. This Judge Threw It Out.

South Dakotans will have to wait a bit longer to learn the fate of legal cannabis in their state. 

Though voters approved the legalization of recreational cannabis in an amendment last year, one of three states to do so during the November presidential election, a state judge struck down the amendment on Monday, calling it unconstitutional.

The amendment approved by a majority of South Dakota voters legalizes cannabis and orders the state Department of Revenue to issue licenses to businesses. It was opposed by GOP Gov. Kristi Noem and local police in the state; a county sheriff and the superintendent of the State Highway Patrol brought the case against. 

The decision appears to be based on technicalities. Judge Christina Klinger, a Noem appointee, wrote that the implementation of the amendment would have “far-reaching effects on the basic nature of South Dakota’s governmental system,” and that pro-legalization activists “fail[ed] to submit Amendment A through the proper constitutional process.” 

The decision appears to be based on technicalities. Klinger wrote that the amendment was unconstitutional, according to the Argus Leader, because it violated an amendment voters approved in 2018 mandating that constitutional amendments only concern a single subject. The amendment dealt with the regulation of hemp as well as cannabis. 

“Due to the intermingling of multiple subjects within Amendment A, it is not possible for this court to ascertain which sections of the amendment the South Dakota voters supported,” Klinger wrote. “When more than one subject is included in an amendment, this court does not have the authority to assume which subject the voters intended to adopt.”

Measure A, a proposition passed by voters at the same time which legalizes medicinal use of cannabis, was not affected by the ruling. 

Brendan Johnson, a former U.S. Attorney for South Dakota representing South Dakotans for Better Marijuana Laws, told the Argus Leader that his group was preparing to appeal its case to the state Supreme Court.

Noem, on the other hand, applauded the ruling. “Today’s decision protects and safeguards our constitution,” Noem said in a statement following the ruling. “I’m confident that the South Dakota Supreme Court, if asked to weigh in as well, will come to the same conclusion.”

Despite this setback, the legalization of cannabis all over the country has continued at a rapid pace. Since Colorado became the first state to legalize the use and regulate its sale in 2012, more than a dozen states have done the same, and 36 states have approved medicinal cannabis programs, according to a tally by Insider. Last week, the Virginia General Assembly voted to approve legislation that would legalize legal weed by 2024.

And while cannabis is still illegal at the federal level, last year the Democratic-controlled House of Representatives voted to decriminalize it. Senate Majority Leader Chuck Schumer said earlier this month, in a joint statement with Sens. Cory Booker of New Jersey and Ron Wyden of Oregon, that he’ll push a bill to decriminalize cannabis and “enact measures that will lift up people who were unfairly targeted in the War on Drugs.”

“We are committed to working together to put forward and advance comprehensive cannabis reform legislation that will not only turn the page on this sad chapter in American history, but also undo the devastating consequences of these discriminatory policies,” the three said in a statement. “The Senate will make consideration of these reforms a priority.”