One of the worst states dealing with COVID-19 right now is South Dakota. The last thing Speaker of the House Steven Haugaard wants to be dealing with during the upcoming legislative session is cannabis. But the state’s voters haven’t left the Republicans much choice.
Recent Steps Forward
This fall, South Dakota became the first state in the U.S. to legalize medical cannabis and recreational cannabis in the same election. Haugaard, who long opposed any form of cannabis legalization, now must create a medical cannabis program.
South Dakota voters enshrined legal cannabis in the state’s constitution. So if Haugaard had any thoughts about reversing the initiative once lawmakers reconvene on Jan. 12, they’ve been dashed.
“With a constitutional amendment, there’s not much we can do about it. It’s written in stone until it’s repealed,” Haugaard said.
South Dakota is one of a handful of states in which voters approved cannabis ballot questions. It also elected Republicans to lead state governments. Montana and Arizona also backed recreational cannabis at the ballot box. Mississippi passed a measure legalizing medical cannabis.
New Jersey, a Democratic governor, and Democratic-majority legislature, also passed a recreational cannabis ballot question.
Many conservative lawmakers oppose the legalization of cannabis, an illegal drug under federal law. But they are discovering obstacles to only passing bills to reverse the initiatives when state legislatures return to work in January. Some cannabis opponents, realizing the limitations of altering a constitutional amendment, are turning to the courts or local officials to undo the measures or blunt the legal pot’s effects.
Before the Election
Before the ElectionBefore the November election, 11 states and Washington, D.C., had legalized recreational cannabis, most left-leaning states, with exceptions like Alaska. An additional 21 states allow medical cannabis. During the election, 15 states will have legalized recreational cannabis, and 35 will allow medical cannabis.
Montana saw 57% of voters approve the recreational cannabis initiative — the same share received by President Donald Trump. In South Dakota, 54% voted for recreational cannabis, and a whopping 70% approved medical cannabis. In Arizona, the recreational pot proposition also passed quickly.
Those kinds of margins are what caused state Rep. Derek Skees to reconsider a bill he was drafting to repeal the Montana ballot measure in anticipation of its passage.
Skees told the Missoulian the day after the election that after it became clear voters supported it — while also supporting Republican candidates for office up and down the ballot — he decided to shelve it.
“There’s no way I’m going to try to overturn the will of Montana,” Skees told the newspaper.
Going to Court
Haugaard said the pandemic derailed opposition to the South Dakota measure, and voters never got the message from opponents about the potential negative impacts of legalization.
Proponents of legalization spent nearly $800,000 on their campaign in South Dakota — most of it coming from the New Approach Political Action Committee, a pro-legalization group that works across the country — and five times what opponents of ballot measures raised.
Colorado, the first state to allow recreational use of cannabis in 2014, is often held up as the poster child for what can happen. Proponents say the state has benefited from increased tax income and economic activity. But opponents, including Haugaard, point to studies about increased traffic deaths in Colorado since legalization explains why they think it’s a bad idea.
Cannabis opponents aren’t waiting to see what state lawmakers do; if anything — they’re going to court. The Pennington County, South Dakota, sheriff, and the South Dakota Highway Patrol superintendent have filed a lawsuit challenging the constitutionality of the cannabis amendment. The Rapid City Journal reported the suit had the backing of Gov. Kristi Noem and that the state was paying for part of the case. Noem was a vocal opponent of legalization during the campaign.
Should the legal challenge fail, the amendment is scheduled to take effect July 1. According to the governor’s office, it will be up to the state health department to implement it. The legislature will have more control over how the medical cannabis program will work. Haugaard said that would be a big focus of the 37-day session.
Pushback from Opposition
Opponents in Montana are also asking the courts to disallow recreational cannabis. Steve Zabawa, a Billings car dealer who has campaigned against legalized cannabis for years, said in his lawsuit that what the voters passed would illegally take power from state lawmakers by designating where tax revenue will go.
“I just don’t think there’s a lot of love for cannabis in Montana,” Zabawa said.
This year it passed by a wide margin. The state’s voters also chose Joe Biden over President Donald Trump. A Democrat hasn’t won the presidential election in the state since 1996.
It’s unlikely Arizona’s Republican-led legislature can do anything to stop implementation because of a 1998 law that prohibits lawmakers from changing a voter-approved initiative without a three-quarters majority.
Moving Forward
State lawmakers’ hands may be tied, but the initiative did give municipalities some power to restrict its use. The day after the industry passed, Oro Valley Town Council approved an emergency declaration that would limit which type of businesses could sell cannabis and prohibited its use in public places.
The declaration was based on language written by the League of Arizona Cities and Towns and given to members before Election Day.
One of the state ballot measures’ principal backers is the cannabis Policy Project, a Washington, D.C.-based organization. Deputy Director Matthew Schweich said this election showed how the public’s opinion on cannabis is rapidly evolving.
Schweich said he believes the results of the 2020 election bode well for future legalization efforts in states and even at the federal level. Because of that growing support, he dismissed any chance Montana or South Dakota could derail recreational legalization but added that his organization would do whatever it can to fight those efforts.
“This is a bipartisan issue [and] I think we’re at a tipping point. We’ve passed it in big states and small states, liberal states and conservative states,” he said. “We’re feeling pretty good. We believe that 2021 is our year.”
KHN (Kaiser Health News) is a nonprofit news service covering health issues. It is an editorially independent program of KFF (Kaiser Family Foundation) that is not affiliated with Kaiser Permanente.
