South Dakota activists have taken the first step toward putting marijuana legalization on the state ballot for the third time in as many election cycles. The new measure, if it goes before voters and is approved, would allow current medical cannabis dispensaries to sell marijuana to any adult over the age of 21.
Voters rejected the campaign’s most recent reform initiative last month, but advocates say low turnout during a midterm election and insufficient funding were largely to blame, pointing out that an earlier 2020 legalization proposal was approved by voters before being invalidated by the state Supreme Court amid a legal challenge led by the governor.
While South Dakotans for Better Marijuana Laws (SDBML) hasn’t necessarily committed to pursuing another reform measure at the ballot in 2024, activists are exploring funding options and feel confident legalization would prevail, especially considering that presidential election years see greater turnout by young and liberal voters who broadly support legalization.
SDBML submitted the text of a reform initiative to the state Legislative Research Council (LRC) late last month for review, Dakota News Now first reported on Tuesday.
The 2022 measure was kept intentionally simple to avoid a single-subject challenge, which is what led to the earlier 2020 version being invalidated by the court. And the campaign’s latest version before LRC, which was shared with Marijuana Moment, is similarly structured, though it does contain some changes and one particularly notable addition.
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The initiative would allow adults 21 and older to purchase and possess up to an ounce of cannabis. They could also grow up to six plants per person for personal use, which is up from three plants in the last version. There’s also a 12-plant maximum per shared living household—double the prior six-plant limit.
The new measure omits a previous provision that would have restricted home grow only to people living in jurisdictions where cannabis retailers were banned.
The most significant change is a new section stipulating that the state Department of Health would have to issue provisional adult-use licenses to any medical cannabis dispensary applicant that received a license before November 30, 2022.
“Local governments shall have the ability to regulate or prohibit businesses that utilize a provisional adult-use license provided that the annual local licensing fee does not exceed $5,000 per year,” it says. “Sales made by a business that utilizes a provisional adult-use license shall be subject to state and local sales taxes.”
The measure does not have any additional regulatory provisions concerning commercial cannabis production and sales, such as those in other states that set licensing or equity rules.
“We do not believe that the 2022 election was a true reflection of the will of the people given that turnout was very low. Therefore, we are considering putting legalization back on the ballot in 2024,” SDBML Director Matthew Schweich told Marijuana Moment on Wednesday.
“However, we will not move forward unless we are certain that the campaign will have the resources to win, which unfortunately was not the case in 2022,” Schweich, who also serves as deputy director of the national Marijuana Policy Project, said.
While it waits to hear back from LRC about the text of its potential 2024 ballot initiative, SDBML is also preparing to advocate for cannabis reform in the upcoming 2023 legislative session.
Meanwhile, prohibitionists are also gearing up for another fight, with the group Protecting South Dakota Kids saying that they plan to launch a non-profit to oppose efforts to legalize marijuana and put a lobbyist in the legislature to advocate against the reform.
Rep. Fred Deutsch (R), who serves as treasurer of the group, said he plans to push legislation to block activists from putting the same issue on the ballot in successive election cycles.
Ahead of the November election, a poll released in October found that 51 percent of South Dakotans planned to vote against the legalization measure, while 40 percent said they’d be supporting it and 10 percent remained undecided. That was the third poll in a row showing the legalization measure behind.
Schweich previously told Marijuana Moment that the state campaign had felt largely ignored by national cannabis businesses who’ve put their lobbying focus into Congress with currently little to show for it.
SDBML also launched an ad ahead of the election that reminded South Dakotans about how a lawsuit led by Gov. Kristi Noem (R) ultimately caused the state Supreme Court to invalidate the earlier 2020 legalization measure that voters approved. The legalization campaign separately conducted a 10-day statewide tour to register voters and educate the electorate about the initiative.
While the governor has more recently worked to align herself with the state’s medical cannabis program that was also approved by voters in 2020, despite previously opposing it and the complementary recreational measure, she said in August that she was committed to fulfilling her job and seeing through the implementation of adult-use legalization if voters ended up approving it this year.
She said that the 2022 measure “is written more appropriately towards the Constitution,” signaling that she would not subject it to another legal challenge.
But the idea that Noem—who vetoed a modest hemp reform bill in 2019 and actively urged voters to oppose the adult-use measure in TV ads the following year—is now content to implement legalization if voters approve it has raised some eyebrows.
House Minority Leader Jamie Smith (D), the Democratic gubernatorial nominee who challenged Noem this year, has also taken the governor to task over her prior efforts to overturn voter-approved legalization, releasing ads in August that remind voters of the interference.
A poll released in late 2021 found that most South Dakota voters approved of Noem’s job performance overall, but just 39 percent supported her handling of marijuana legalization, with 51 percent disapproving.
Noem tried to get the legislature to approve a bill to delay implementation of the medical cannabis program for an additional year, but while it cleared the House, negotiators were unable to reach an agreement with the Senate in conference, delivering a defeat to the governor.
In response, her office started exploring a compromise, with one proposal that came out of her administration to decriminalize possession of up to one ounce of cannabis, limit the number of plants that patients could cultivate to three and prohibit people under 21 from qualifying for medical marijuana.
In the 2022 legislative session, the House rejected a legalization bill that the Senate had passed, effectively leaving it up to activists to get on the ballot again.
A Marijuana Interim Study Committee, headed by legislative leaders, was established to explore cannabis policy reform, and the panel ultimately recommended that the legislature take up legalization. The House-defeated legislation was one of the direct products of that recommendation.
Read the text of the South Dakota marijuana legalization ballot initiative that advocates are considering for 2024 below:
Photo courtesy of Chris Wallis // Side Pocket Images.