In the November 2020 election, initiatives to legalize cannabis will appear on the ballot papers of five states: Arizona, Mississippi, Montana, New Jersey and South Dakota. In the run up to the November 3rd election, law Law Blog published a series of posts focusing on each of these state election initiatives and the current laws regarding cannabis in each state. Today, in the fifth and final post, we discuss the two cannabis measures that will take place in South Dakota in November:
What are the current laws surrounding cannabis in South Dakota?
In South Dakota, possession or use of any amount of cannabis is illegal. In addition, cannabis is not being decriminalized. Possession of any amount of cannabis is illegal, and South Dakota is the only state where the ingestion law applies. This means that testing positive for an illegal drug is a punishable offense.
In 2006, a measure that would have legalized medical cannabis failed to pass with a 52 percent majority of South Dakota voters. Another cannabis measure in 2010 failed with an even larger majority of 63 percent of voters. No cannabis initiative has appeared on the South Dakota ballot since 2010. This makes the measures for this upcoming ballot the first two that the public has voted on for a decade.
In addition, the state only recently made CBD legal. In 2017, South Dakota added “Cannabidoil” to its state controlled substance list and excluded “Cannabidoil” from the definition of marijuana (which is also on the list). In 2019, lawmakers added Epidiolex (prescription cannabis) to the list of controlled substances and removed cannabidiol from the list, but did not change the definition of marijuana. These legislative changes created confusion over whether or not CBD was legal, which was only eliminated in March last year when State House Bill 1008 passed and legalized both CBD and hemp.
What are the electoral measures for the upcoming elections?
There are two cannabis measures on the ballot in South Dakota: Constitutional Amendment A or the Marijuana Legalization Initiative and Initiated Measure 26 or the Medical Marijuana Initiative. The main difference between these two measures is that the former would legalize cannabis for all purposes and the latter would only legalize medicinal cannabis.
Constitutional Amendment A is an initiated constitutional amendment filed by former South Dakota District attorney Brendan Johnson. If passed, it would both legalize recreational cannabis and require state lawmakers to pass laws regulating the use and sale of medicinal cannabis.
Action 26, on the other hand, would legalize cannabis for medical use by patients with debilitating conditions and establish a medical cannabis program. Patients with qualifying conditions may own up to three ounces of cannabis and grow up to three cannabis plants.
Prospects for the adoption of constitutional amendment A and the measure initiated 26
From a look at South Dakota’s history with cannabis legislation, it seems unlikely that either measure will be passed. However, a recent survey paints a more hopeful picture. A poll of registered voters in October found narrow leeway for recreational cannabis legalization. 51 percent of those surveyed approved constitutional amendment A. Medical cannabis seems to have an even better chance of surviving, with the same poll showing that 72 percent of respondents supported measure 26 that was initiated. Although recreational cannabis legalization is a mistake, South Dakota seems more than likely to use medicinal cannabis will legalize.
For information on previous coverage in this series, see the following sections: