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South Dakota’s attorney general has officially released a draft summary of an initiative to legalize marijuana that advocates hope to place on the November 2024 ballot.
The procedural development brings the campaign, South Dakotans for Better Marijuana Laws (SDBML), one step closer to being able to collect signatures to put the measure before voters next year.
But advocates are first planning to use the 10-day public comment period that started after Attorney General Marty Jackley (R) submitted the draft summary last week to request a revision, as it currently says that the measure authorizes the “distribution” of cannabis even though there’s no sales component to the initiative.
That issues represents a key change to the initiative that the campaign originally filed in December. The previous version would have permitted existing medical cannabis dispensaries to sell products to adult consumers, but those provisions were removed in order to avoid running up against a legal challenge.
“One thing people should recognize is the difficulty of the single subject rule in South Dakota and how it’s been used to overturn a successful issue in the past,” SDBML Director Matthew Schweich told Marijuana Moment on Monday, referencing a state requirement for ballot measures to narrowly focus on one issue.
The draft ballot title from the attorney general says that it is, “An Initiated Measure Legalizing the Possession, Use, and Distribution of Marijuana.”
“This initiated measure allows individuals 21 years of age or older to possess, grow, sell, ingest, and distribute marijuana or marijuana paraphernalia,” the summary says. “Individuals may possess up to two ounces of marijuana in a form other than marijuana concentrate or other marijuana products. An individual may possess up to six marijuana plants with no more than twelve plants possessed per household.”
An explanation for a draft initiated measure, proposed by Matthew Schweich of Sioux Falls, that would legalize recreational marijuana has been submitted for public review by the South Dakota Attorney General’s Office. https://t.co/j8UU4JG4S0 pic.twitter.com/gjxiu7YZov
— SD Attorney General (@SDAttorneyGen) August 11, 2023
“The measure also limits the possession of other forms of marijuana and marijuana products. Under the measure the possession, ingestion, and distribution of marijuana and marijuana paraphernalia remains illegal for individuals under the age of 21,” it continues. “It remains illegal to drive under the influence of marijuana.”
The summary further describes restrictions on possession public consumption in certain areas like schools and how employers could continue to prohibit workers from using cannabis.
“This initiated measure does not affect laws dealing with hemp. The measure.also does not change State laws concerning the State’s medical marijuana program. The measure legalizes marijuana derived substances considered felony controlled substances under State law. Marijuana remains illegal under federal law. Judicial or legislative clarification of this measure may be necessary.”
The primary issue that the campaign flagged is the fact that it suggests that there would be a regulated sales model for recreational marijuana, when in fact that was deliberately excluded from the revised measure.
“I really disagree with use of the word ‘distribution,’ and this is something I’ve seen many times over the years,” Schweich said. “There’s no legal sales in this initiative. There’s a gifting policy, but I don’t think the average person uses the word ‘distribute’ when talking about gifts.”
“When you talk about distribution in the context of cannabis, you’re obviously talking about the sale of cannabis,” he said. “So to take a very modest gifting provision that exists in pretty much every other legalization law and use that small provision to say that distribution belongs in the title I think is really unfair and biased.”
This is the third election cycle in a row that the campaign has worked to legalize marijuana through the ballot. A 2020 constitutional amendment to enact the reform was approved by voters, but the state Supreme Court later invalidated it based on a single subject challenge. In 2022, a statutory legalization initiative made the ballot, but voters rejected it, which advocates attribute to overall low turnout and limited campaign resources.
Schweich said that while the current campaign appears to be positioned to begin signature gathering in late September or early October, they haven’t yet reached a final decision on whether to fully commit to the initiative with the backing of the national Marijuana Policy Project (MPP), where he serves as deputy director of state campaigns.
That decision will be largely contingent on whether the South Dakota campaign feels confident that it will have enough financial support to justify taking another shot at the ballot. The initiative itself is ready, but advocates don’t want to see a repeat of 2022, when investments from industry stakeholders came up short of expectations.
“I think it’s just a question mark whether this campaign will move forward because it has to be well-funded,” Schweich said. “I’ve learned a lot of lessons over the years through these campaigns, and the big lesson from from South Dakota last year is don’t run underfunded campaigns. Just don’t do it.”
“I will not invest MPP’s time or effort, or South Dakotans for Better Marijuana Laws’s time or effort, into a campaign unless I really feel confident that sufficient funding will be available,” he said. “Otherwise we risk losing twice in a row, and that is incredibly unpalatable.”
Schweich also said that he’s not concerned that voters might be less motivated to support a legalization initiative without commercial sales provisions. He said that voters “recognize that if legalization is approved, then regulations will very likely follow, whether it’s an initiative or not.”
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But while voters did approve adult-use legalization in 2020, more recent surveys have signaled that sentiment may have shifted against the reform in the years since. Ahead of last year’s election, a poll 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.
The 2020 campaign did see voters approve a medical cannabis legalization ballot initiative, however.
A Republican activist recently filed a pair of initiatives to repeal that law and also keep federally banned substances from ever being legalized by voters. The state attorney general released the draft ballot explanation for the medical marijuana repeal measure late last month.
In 2021, Gov. Kristi Noem (R) tried to get the legislature to approve a bill to delay implementation of the state’s 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.
Photo courtesy of Mike Latimer.
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