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Team behind South Dakota's court-blocked recreational marijuana law in 2020 will try again

South Dakotans for Better Marijuana Laws have filed five initiated measures with the Legislative Research Council, including one measure to strip away the "single-subject" rule that a county judge invoked when blocking a voter-passed marijuana law.

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Attorney Brendan Johnson, representing a group that brought a constitutional amendment legalizing marijuana to the ballot in November 2020, argues before the South Dakota Supreme Court on Wednesday, April 28, over the legal fate of that amendment, which 54% of voters approved but was struck down by a lower court. (Video screenshot)
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PIERRE, S.D. — It could soon be round two for marijuana legalization advocates in South Dakota, unless the state's Supreme Court upholds the past citizen-approved measure.

Over the July Fourth weekend, South Dakotans for Better Marijuana Laws announced they'd sent five new ballot measures — all related to defanging criminal laws and civil penalties for marijuana possession — to a legislative research team in Pierre.

But the team behind the push, who also have proposed removing a single-subject test for constitutional amendments, say they won't bring the measures forward if the five justices in Pierre uphold Amendment A, which legalizes recreational cannabis in the state and voters approved with 54% majority last November.

"If Amendment A is repealed, then we need to be prepared to put legalization on the ballot again," said Melissa Mentele, executive director of New Approach South Dakota, the group behind the successfully adopted Initiated Measure 26, which legalized medical cannabis across the state.

The move comes late in the initiative season, with a Nov. 8 deadline to collect the necessary signatures (approximately 17,000 for a proposed law, nearly 34,000 for a proposed constitutional amendment) to get the question on the ballot. While the group has announced two constitutional amendments and two laws, organizers say they'll bring only one of the marijuana-related measure to voters.

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The differences between the measures revolve around taxation schemes, with one explicitly allowing cultivation. An initiated law appeared, in the past, to be more vulnerable to disruption in Pierre. But the legal fight over Amendment A, with a lawsuit blessed by Gov. Kristi Noem, suggests either path can be hazardous, even if a democratic majority gives the measures a thumbs-up.

"We're just keeping our options open," said Matthew Schweich, the deputy director with the Marijuana Policy Project, in an interview with Forum News Service on Thursday, July 8. "We're not exerting political pressure (on the Supreme Court), we're just starting the clock."

The explicit challenge to bring the laws should the South Dakota Supreme Court uphold a circuit court judge's injunction against Amendment A, citing the broadness of the measure in encompassing more than one subject, could be a unique evolution in the state's storied history with ballot measures.

"Legislators do this all the time," said Michael Card, associate professor of political science at the University of South Dakota. "This may be framed as a threat, but it may just be a contingency plan, too."

In 1898, the state's voters approved one of the nation's earliest initiative and referendum right into the state constitution. That's a point former U.S. Attorney Brendan Johnson, and counsel for the group pushing the initiated measures, has made in fighting for the constitutional amendment in court.

While some legislators may've thought the legalization issue moot after a county sheriff and top highway patrolman sued to overturn Amendment A, some legislators on a summer-long taskforce to review cannabis laws floated the possibility of a second round in the recreational marijuana fight.

The state Senate in March even voted to decriminalize small amounts of marijuana but the plan died in a conference committee with the state House of Representatives.

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