On November 3, 2020, marijuana advocates celebrated a clean sweep on the ballots as voters approved legalization in all four states considering the reform. Yet while the Cannabis community enjoyed the spotlight on Election Day, prohibitionists have been working in the shadows ever since. The result has been a muddying of democracy as we know it.
Null and Void
A voter-approved constitutional amendment legalizing Cannabis in South Dakota has been overturned. The amendment, passed on Election Day by 54 percent of voters, would have allowed possession of up to an ounce of Cannabis and implemented retail sales. It also established a 15 percent tax on pot and permitted home cultivation.
While the amendment included a provision allowing local governments to ban Cannabis sales in their jurisdictions, state officials felt the need to ban legalization altogether.
Governor Kristi Noem (R), who opposed Cannabis legalization in South Dakota from the start, instructed Highway Patrol Superintendent Col. Rick Miller to file a lawsuit challenging the amendment on her behalf.
Unsurprisingly, the Circuit Judge hearing the case, who was appointed by Noem in 2019, agreed with the Governor and ruled that the amendment passed by South Dakota voters was unconstitutional.
Judge Christina Klinger wrote, “Amendment A is unconstitutional as it includes multiple subjects in violation of [the South Dakota constitution] and it is therefore void and has no effect…”
Essentially, Klinger found that the amendment went beyond a single issue – making it a revision to the constitution and not an amendment. In other words, several powerful prohibitionists came up with a bullshit technicality that allowed them to suppress the will of the voters and keep Cannabis illegal.
And, despite Noem denying her role in the suit to void voter-approved marijuana-law reform, an executive order signed by the governor in January states that on “November 20, 2020, I directed Rick Miller to commence the Amendment A Litigation on my behalf in his official capacity.”
Noem is also on record asserting that voters in South Dakota—the same voters that elected her—made “the wrong choice” when they approved the legalization amendment.
The issue will now be heard by the state Supreme Court after attorneys representing marijuana-law reform advocacy groups appealed Judge Klinger’s ruling. Normally, the South Dakota Attorney General’s office would defend such a challenge to a state law. However, AG Jason Ravnsborg dropped his defense of the amendment.
Gov. Noem stated that she’s “confident that South Dakota Supreme Court” will uphold the Circuit Court’s decision. The governor personally appointed two of the high court’s five justices.
South Dakota’s new medical marijuana law, approved by over 69 percent of voters on Election Day, isn’t safe from the governor either. Noem tried to push the program’s implementation back a year, from July 2021 to July ’22 and, when that failed, she attempted to change the law to add restrictions.
While the situation in South Dakota is a worst-case scenario, implementation hasn’t been easy for most of the state’s that legalized in 2020.
Montana residents approved legalization with 57 percent of the vote in November. However, the state’s adult-use law is still up in the air. Three separate Republican-sponsored measures are currently being considered. Unfortunately, all three bills change the original proposal that was laid out in the ballot initiative and approved by voters.
The legalization bill favored by Montana Gov. Greg Gianforte would create a system where local jurisdictions have to “opt in” to the legal Cannabis industry. The original law approved by voters allowed for an opt-out provision. This change makes the state’s default position “out” of legal Cannabis, and is sure to have a negative impact on the success of the program.
The bill would also delay the start of retail sales and reroute the majority of pot tax revenue to a fund proposed by the governor for substance abuse treatment.
And, as the state’s recreational pot law is somehow now being rewritten by the very people who opposed legalizing pot in the first place, at least one state senator has proposed a referendum for the ballot to repeal legalization.
But, at the moment, Montana appears to be moving forward with some version of a taxed and regulated system with retail sales.
New Jersey’s struggle to pass a legalization law is well documented. Gov. Phil Murphy clashed with lawmakers, refusing to sign a bill establishing the state’s regulatory framework until amendments were made detailing penalties for underage possession. During the resulting two-month stalemate, people continued to be arrested for pot possession in the Garden State.
Legislators ultimately passed a cleanup bill that satisfied Murphy. Shortly thereafter, on February 22, the governor signed the legal framework bill into law, legalizing Cannabis. Murphy also signed a decriminalization bill that ends pot possession arrests.
Unfortunately, in the three and a half months between legalization passing on Election Day 2020 and the governor signing the Cannabis bills in late February ‘21, more than 6000 people were arrested for minor marijuana possession in New Jersey.
Arizona is the clearest success story of the November Four. The state’s voter-approved legalization measure called for lawmakers to create the rules governing the industry quickly. As it turns out, that was an understatement.
Legal Cannabis was approved with 60 percent of the vote on November 3, 2020. Retail sales of recreational marijuana officially began just over two months later, on January 22, 2021. The remarkable turnaround makes Arizona the fastest state in the country to go from passing adult-use pot to the implementation of sales.