Supporters and opponents of a marijuana legalization initiative in South Dakota have released new ads as they work to convince voters to take their side at the ballot box next month.
The pressure is on for activists, who are facing a skeptical electorate according to recent polling that shows the measure trailing, despite the fact that voters previously approved a legalization measure in 2020 only for it to be overturned in the courts.
In a new ad, South Dakotans for Better Marijuana Laws (SDBML) emphasized that “politicians used a legal technicality to overturn the law,” referencing a lawsuit supported by the office of Gov. Kristi Noem (R) that ended in the state Supreme Court invalidating the voter-approved initiative on procedural grounds because it determined the measure violated a single-subject rule.
“We’re still clogging up our courts and wasting police resources on marijuana arrests instead of focusing on real crime and seriously ill people including veterans with PTSD and cancer patients who still face difficulty accessing medical marijuana,” the ad says. “We can restore the will of the people, fight crime and end suffering by voting yes on Measure 27.”
SDBML is doing what it can to get out the vote in the final weeks before the election, announcing last week that it’s launching a 10-day statewide tour to register voters and educate the electorate about the initiative.
Meanwhile, opponents released an ad that aims to stoke fears about the impact of legalization on children, starting with a narrator showing video of kids and saying “these are future drug addicts, future suicide victims, future victims of an impaired driver.”
“This is the future with initiated Measure 27. It would legalize drugs known to cause depression and suicide—drugs that put dangerous users on our roads, hurting those who are most vulnerable,” the Protect South Dakota Kids ad says. “If we don’t act now, it’d be open season on our children. Don’t put their future at risk. Vote no on initiated Measure 27.”
It remains to be seen which message will most effectively resonate with voters, but polling signals that it could go either way next month.
A survey from South Dakota State University that was released last week found that 45 percent of voters back the legalization proposal, while 47 percent said that they’re against it and eight percent remain undecided.
That was the second poll in a row showing most South Dakotans opposed to the initiative, despite the fact that 54 percent of voters approved adult-use legalization at the ballot in 2020.
A separate poll from South Dakota News Watch and the University of South Dakota that was released in August showed that just 44 percent of respondents in favor of the legalization measure, though the campaign was quick to point out what it viewed as inconsistencies in the results.
Activists already cleared a major hurdle by submitting enough valid signatures to qualify the marijuana measure for the November ballot. They turned in nearly 20,000, and the secretary of state’s office confirmed in May that they met the required 16,961 signatures for ballot placement.
To avoid the single-subject problem that led to the 2020 initiative’s invalidation, the 2022 measure omits the previous version’s provisions that dealt with taxes and regulations, leaving those decisions up to the legislature.
While the governor has more recently worked to align herself with the state’s medical cannabis program, despite previously opposing both 2020 cannabis measures, she said in August that she’s committed to fulfilling her job and seeing through the implementation of recreational legalization if voters approve 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), who is the Democratic nominee challenging the governor this year, has also taken Noem to task over her prior efforts to interfere in voter-approved legalization, releasing ads in August that remind voters of the interference.
A poll released in December 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 last year, 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.
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Following the court ruling that invalidated the earlier ballot box win, activists decided to take a two-track approach to the policy change in 2022, both working with legislators for a legislative reform while separately collecting signatures for the ballot initiative if lawmakers failed to act.
While they would have preferred lawmakers to enact the policy change, that did not materialize this session. The House rejected a Senate-passed legalization bill in March, effectively leaving it up to activists to get on the ballot again.
SDBML has said that it intends to work with lawmakers on that measure while continuing to push for the ballot measure.
Here’s what the campaign’s marijuana legalization ballot initiative would accomplish if approved by voters:
The measure would allow adults 21 and older to purchase and possess up to an ounce of cannabis. They could also grow up to three plants for personal use.
It also lays out civil penalties for violating provisions related to issues such as public consumption or growing more plants than permitted.
Employers would specifically be allowed to continue enforcing workplace drug policy prohibiting cannabis use by workers.
State and local governments could continue to ban marijuana activities made legal under the initiative in buildings “owned, leased, or occupied” by a governmental body.
The measure does not touch on regulatory policies concerning taxing cannabis sales, licensing or equity.
A Marijuana Interim Study Committee, headed by legislative leaders, was established last year to explore cannabis policy reform, and the panel ultimately recommended that the legislature take up legalization this session. The House-defeated legislation was one of the direct products of that recommendation.
Photo courtesy of Brian Shamblen.