With much of the nation transfixed by the drama in our nation’s capital over efforts to overturn the results of the presidential election, Republican leaders at the state level also have a target in the bid to block the will of the people: marijuana legalization initiatives. Voters in five states approved ballot measures to legalize cannabis in November, all of them passing by significant margins.
Voters in five states approved marijuana legalization ballot measures in November’s election.
But that popularity with voters hasn’t swayed many Republicans from their continued support of marijuana prohibition. In South Dakota, voters approved both Initiated Measure 26 and Amendment A, ballot initiatives to legalize the medicinal use of cannabis and recreational marijuana, respectively. Amendment A won by eight percentage points while Measure 26 prevailed with a whopping 70% of the vote.
But despite that popularity, Republican Gov. Kristi Noem has decided that the state’s voters made the “wrong choice.”
“I was personally opposed to these measures and firmly believe they’re the wrong choice for South Dakota’s communities,” she wrote in a statement published by Dakota News Now after the election. “We need to be finding ways to strengthen our families, and I think we’re taking a step backward in that effort. I’m also very disappointed that we will be growing state government by millions of dollars in costs to public safety and to set up this new regulatory system.”
Personal Opposition Becomes State Policy
Last week, Noem made that personal opposition official South Dakota policy when she issued an executive order directing state officials to join a lawsuit challenging the measures. The legal action was filed by Colonel Rick Miller of the South Dakota Highway Patrol and Sheriff Kevin Thom of Pennington County in November. The suit challenges the marijuana legalization measures on the grounds that they violate requirements that initiatives pertain to only one subject and that Amendment A should have received the approval of a constitutional convention, not the voters.
In her executive order, Noem maintains that she directed Miller to file the suit.
“On Nov. 20, 2020, I directed Colonel Rick Miller to commence the Amendment A litigation on my behalf in his official capacity,” Noem wrote. “At all times thereafter, Colonel Rick Miller has acted as petitioner and plaintiff in the Amendment A litigation under my direction.”
But that portion of the order seems to be a revision of history. As reported by the Rapid City Journal, on November 23 Noem’s spokesman Ian Fury wrote in an email that “Gov. Noem did not ask Col. Miller or Sheriff Thom to bring the lawsuit.” The executive order does not indicate how Thom became involved in the suit.
After the order was issued on Friday, Fury said in another email that the action was procedural and that the lawsuit was originally Miller’s idea, a detail not mentioned in Noem’s executive order.
Lawyers for South Dakotans for Better Marijuana Laws, the advocacy group that campaigned for the initiatives, argue that the plaintiffs can’t sue the state in their official capacities.
Thom and Miller “have sworn to uphold the law, which includes laws passed by voters. Allowing officials to challenge laws they do not like undermines the rule of law and improperly injects the state into the election process,” the attorneys wrote in a memo. “Law enforcement officers may not pick and choose which laws they will uphold in their official capacities, and they may not use their offices to play politics.”
As the state official in charge of South Dakota’s elections, Secretary of State Steve Barnett is listed as the defendant in the lawsuit challenging the initiatives. Barnett is being represented by the state attorney general’s office, which agrees that the recreational marijuana initiative is a valid amendment and complies with the single-subject rule. With Noem putting the support of her office behind the plaintiffs it appears that South Dakota’s taxpayers are footing the bill for both sides of the case.
“This is particularly concerning where, as here, the state appears to be paying at least some of the legal fees to allow a state official to sue the state,” the lawyers for South Dakotans for Better Marijuana Laws wrote.
Voters continued to support cannabis policy reform in the 2020 election.
Montana Initiative Also Faces Republican-led Opposition
In Montana, the Republican-led state legislature is using the power of the purse to thwart the will of the voters, who in November approved a ballot measure to legalize recreational marijuana with 57% of the vote. Under Initiative 190, possession and home cultivation of marijuana became legal at the beginning of this year and state officials have until January 2022 to begin accepting licenses for cannabis businesses.
But like Noem in South Dakota, GOP leaders in Big Sky Country have balked at the cost of implementing the will of the people. After the Montana Department of Revenue submitted a $1.35 million request for 20 full-time employees, office equipment and operating expenses, Rep. Bill Mercer, a Republican from Billings, referred to the amount as a “huge tranche of money.”
While a supplemental funding measure was under consideration last week, Mercer submitted an amendment to remove the department’s request. The House Appropriations Committee approved Mercer’s amendment by a vote of 23 to 2, a tally which includes a majority of members from both political parties. Mercer has also suggested that lawmakers delay the implementation of licensing businesses for cannabis commerce.
“I think the challenge for us is there are a number of different ideas people are beginning to think through in terms of how we need to take what the voters approved and decide how that’s actually going to work in terms of public policy,” Mercer said, as quoted by the Helena Independent Record.
But what Mercer, Noem and others need to realize is that the voters have already decided how it will work: Marijuana is legal for adults 21 and older and the state government is required to implement a regulated market for the production and sale of cannabis.
To do otherwise is an assault on democracy akin to Republican attempts to overturn the presidential election.