The constitutionality of a voter-approved amendment that legalized recreational cannabis in South Dakota has been questioned. Friday, November 20 was the date on which the lawsuit was filed by Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller. 

Together, the officers filed two causes of action contesting the logicality of Amendment A. Thom and Miller argued that “because the amendment inserts a new section into the constitution, it should be considered a revision to the constitution.” 

Since the case covers medical and recreational cannabis and hemp taxation, in addition to matters pertaining to the health department, transportation and licensing of cannabis in South Dakota, the lawsuit asserts that Amendment A comprised more than one subject and therefore was wrongly proposed.

“I’ve dedicated my life to defending and upholding the rule of law. The South Dakota Constitution is the foundation for our government and any attempt to modify it should not be taken lightly,” said Sheriff Thom. “I respect the voice of the voters in South Dakota, however In this case I believe the process was flawed and done improperly, due to no fault of the voters.”

South Dakota made cannabis legalization history on Election Day

In the event that the argument for Amendment 2 is heard, the incident will be the first of its kind since the single subject rule was made official by voters. On Election Day, South Dakota became the first U.S. state in the U.S. to simultaneously legalize adult-use and medical cannabis; the state’s recreational cannabis legalization measure, Amendment A, was approved with a vote of 53.5 percent-46.5 percent. 

Now, the recently-filed lawsuit awaits a hearing. It is backed by cannabis prohibitionist Gov. Kristi Noem and will be partly funded by the state. Spokesman for Noem, Ian Fury, told reporters at Rapid City newspaper that it is part of the governor’s duty to defend the constitution. He says that she “looks forward to the court addressing the serious constitutional concerns laid out in this lawsuit.”

Lawsuits challenging new cannabis markets are not uncommon

The organizers who are responsible for bringing Amendment A to the table anticipate a fierce court battle. However, those who agree with the constitutionality of Amendment A are optimistic that the legal framework is not fatally flawed and shall not suffer any setbacks.

“We are prepared to defend Amendment A against this lawsuit. Our opponents should accept defeat instead of trying to overturn the will of the people,” said political director for South Dakotans for Better Marijuana Laws, Drey Samuelson. “Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year.”

Should Miller and Tohm go undefeated in their efforts to have the court deal with constitutional flaws, the outcome would mirror similar court hearings in other states. One such example is Nebraska. At the beginning of 2020, the Nebraska Supreme Court prevented a medical cannabis proposal from being featured on a ballot vote; judges ruled that the proposal breached the state’s single subject rule.