Recreational pot initiative beats signature deadline

By Stu Whitney

South Dakota News Watch

Posted 5/14/24

Matthew Schweich hopes that when it comes to recreational marijuana legalization in South Dakota, the third time is the charm.

"Everything's on schedule," said the campaign director of South …

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Recreational pot initiative beats signature deadline

Posted

Matthew Schweich hopes that when it comes to recreational marijuana legalization in South Dakota, the third time is the charm.

"Everything's on schedule," said the campaign director of South Dakotans for Better Marijuana Laws, whose group handed in 29,030 signatures for its recreational pot initiated measure to the Secretary of State's office in Pierre last Tuesday, the final day signatures could be submitted for 2024.

It's been a mad dash to the finish line for the pro-legalization group, which also had a hand in putting the issue on the ballot in 2020 and 2022. The effort got a late start due to concerns about funding and didn't really hit its stride with paid circulators until February.

"I think it would have been a mistake to launch a signature drive without knowing we had the resources to do it properly," said Schweich, adding that funding for the petition drive came from the Grow South Dakota Ballot Committee (with former state legislator Deb Peters as treasurer) and Puffy's Dispensary, a West River-based medical cannabis operation.

The number of verified signatures needed to qualify initiated measures for the ballot is 17,508, which represents 5% of the total vote for governor in the last gubernatorial election. Constitutional amendments require 35,017, which is 10%.

After receiving a petition, state law requires the Secretary of State to “examine and catalog” the signatures and make them available to the public upon request for a reasonable fee. Within five days of that examination, the Secretary of State is required to generate a random sample to determine the validity of the signatures, with the validation sheets also available for public inspection.

If the recreational marijuana measure makes the ballot, the campaign will have to grapple with possible voter fatigue on an issue that will be put before South Dakota voters for a third consecutive statewide election.

In 2020, pro-legalization Amendment A passed with 54% of the vote, clearing the way for recreational marijuana to be implemented in the state. Medicinal pot was also approved by voters that year in an initiated measure.

Gov. Kristi Noem’s administration challenged the recreational marijuana amendment, saying it violated the state’s requirement that constitutional amendments deal with just one subject. That argument prevailed in a 4-1 decision at the South Dakota Supreme Court.

Supporters tried to pass recreational cannabis again in 2022, and South Dakotans rejected that effort, sending Initiated Measure 27 to defeat with 53% of voters against it.

Schweich acknowledges making a political miscalculation by going back to the issue in 2022 rather than "taking a breather" and waiting for 2024, a presidential election year with higher voter turnout than midterms.

"My theory was that the anger over the amendment being overturned would cause a whole bunch of voters who might not otherwise show up for the midterms to go out and vote," said Schweich, who also runs Eagle Campaigns, a political campaign service in Sioux Falls. "It was an ambitious theory, and unfortunately things didn't play out that way. It turns out that changing an electorate is very difficult."

South Dakotans for Better Marijuana Laws will focus on get-out-the-vote efforts rather than trying to win "the hearts and minds" of voters on an issue that they are well-versed on following the 2020 and 2022 campaigns.

Recreational marijuana is currently legal in 24 states, with supporters pointing to economic advantages to the state economy from tax revenue. States collected nearly $3 billion in marijuana revenues in 2022, according to the Tax Foundation.

Opponents cite potential social costs and health risks such as a higher risk of cardiovascular problems from marijuana use, as outlined in a recent study in the Journal of the American Heart Association.

If the measure makes the ballot and fails, said Schweich, there will not be a fourth consecutive time on the ballot, at least from his group.

"If we fail in 2024, which I don't think will happen, I will respect that and will not be part of putting this issue on the ballot in 2026," said Schweich.

Here's a look at the status of other ballot measures now that the deadline for submission has passed:

Seeking certification

Right to abortion

Type: Constitutional amendment
Signatures submitted: 55,000

Dakotans for Health co-founder Rick Weiland held a press conference May 1 in Sioux Falls to announce that he was handing in 55,000 signatures to the Secretary of State's office that day for his group's abortion amendment.

If successful, the measure would enshrine the right to abortion in the South Dakota Constitution and supersede a 2005 state trigger law that took effect when Roe vs. Wade was overturned. Current state law makes it a Class 6 felony for anyone “who administers to any pregnant female or prescribes or procures for any pregnant female” a means for an abortion, except to save the life of the mother.

The Life Defense Fund also announced May 1 that it intends to challenge the legality of the abortion petition based on the "unlawful and misleading actions" of Weiland and his petition circulators.

Rep. Jon Hansen, R-Dell Rapids, one of the state’s leading anti-abortion advocates as co-chair of the Life Defense Fund, has accused Dakotans for Health circulators of leaving petitions unattended and providing misleading information to the public.

South Dakota Attorney General Marty Jackley sent a letter to Dakotans for Health on Oct. 31, 2023, that mentioned "video and photographic evidence" of such encounters and warned of potentially illegal actions taken by petition circulators.

Jackley said that his letter was based on "complaints and concerns raised during the petition process" and that violations, if proven, could play a role in the Secretary of State's petition certification process.

Hansen has said that his group will undertake its own process to verify abortion amendment signatures prior to certification, and affidavits can be filed by people who signed but wish to remove their signature from the petition.

Those actions will likely be part of an appeal to circuit court in Hughes County in Pierre if the Secretary of State certifies the petition and Life Defense Fund officially challenges that decision.

Weiland said his group is confident that the signatures will hold up and voters will decide the abortion amendment in November.

"These are desperate actions on our opponent's part because they know when this sticks on the ballot, it's going to pass," said Weiland. "So they're going to do everything they can to try to scare and dissuade people. But at the end of the day, it's a desperate action and we are living in desperate times when it comes to reproductive freedom. I think the will of the voters is going to prevail."

Open primaries

Type: Constitutional amendment
Signatures submitted: 46,500

Joe Kirby of South Dakota Open Primaries told News Watch that his group handed in signatures May 6 and that he is "not worried at all" about certification.

"We know the process and we've got more than enough valid signatures," he said.

Approval of this amendment would establish “top-two” primaries for governor, Congress and state legislative and county races rather than having parties hold separate primary contests. The two candidates who get the most votes would advance to the general election, regardless of party.

The theory is that open primaries, rather than incentivizing candidates from taking extreme positions to win a partisan primary, will help lower the volume to produce officeholders more reflective of the general electorate. This comes at a time when far-right factions such as the South Dakota Freedom Caucus have gained more traction within the Republican ranks.

All registered voters would be eligible to weigh in on which candidates advance to the general election. Currently, Independent voters in South Dakota can vote in Democratic primaries but not Republican contests.

Kirby pointed to the 2026 South Dakota gubernatorial primary as an example of how an open primary could be a "good mix of Republicans, Democrats, Independents and Libertarians on the primary ballot."

Freedom Caucus chairman Aaron Aylward, a state representative from Harrisburg, told News Watch that the proposal would essentially create "two general elections in South Dakota" and thus was unnecessary.

The only other public opposition so far has come from South Dakota Republican Party chair John Wiik and U.S. Sen. Mike Rounds, who told News Watch in a March 1 statement that “our current primary system has served us well."

Initiated measures

Grocery tax repeal

Type: Initiated measure
Signatures submitted: 25,000

Dakotans for Health submitted 25,000 signatures on April 24 for a measure to prohibit the state from collecting sales tax on "anything sold for human consumption, except alcoholic beverages and prepared food."

Weiland's Take It Back initiative is also involved with the effort, which has public support from the South Dakota State Federation of Labor, AFL-CIO.

A statewide poll in November 2023 co-sponsored by South Dakota News Watch showed that 61% of registered voters support the proposal, which would eliminate the 4.2% state sales tax on groceries. The measure would not affect the up to 2% sales tax on groceries charged by South Dakota municipalities.

The proposal was staunchly opposed by the Republican-dominated Legislature, which approved a cut in the state’s general sales tax rate from 4.5% to 4.2% during the 2023 session that's due to expire in 2027.

The fiscal note for the grocery tax measure indicates it could reduce annual state sales tax receipts by $124 million. Opponents said that could stress the state's budget when combined with the rate change on general sales tax.

Weiland notes that Noem promised a grocery tax cut as part of her 2022 re-election campaign, a plan ultimately rejected by lawmakers. The governor took the rare step of testifying for her grocery tax repeal bill during the 2023 session, insisting that the budget was strong enough to absorb lost revenue and that voters wanted the tax repealed.

“She’s taken a lot of wind out of the sails of the opposition,” said Weiland. “She has made it clear that this will not be a financial burden and that it's something that the people want.”

Jim Terwilliger, Noem’s top budget official as commissioner of the Bureau of Finance and Management, told News Watch that the governor doesn’t support the ballot initiative because of concerns about the wording.

He added that she “still believes a repeal of the grocery tax is the best tax relief for South Dakota families if it is done in a responsible manner.”

Qualified for ballot

Work requirement for Medicaid

Type: Constitutional amendment (from Legislature)

Legislators passed this Senate Joint Resolution during the 2024 session, an effort to amend the constitution to impose work requirements for Medicaid eligibility.

Supporters want to add a work requirement for adults who are not physically or mentally disabled but who are eligible for Medicaid under the expansion of the government-sponsored program that South Dakota voters approved in 2022. The move would still need to be approved by the federal government.

Opponents frame it as a rebuke of the will of voters and cite the state's 2.1% unemployment rate, which ranks second-lowest in the nation. "Who is on Medicaid and is not working? I can answer that for you, it’s the poorest of the poor,” said Democratic state Rep. Kadyn Wittman of Sioux Falls.

References to government officials

Type: Constitutional amendment (from Legislature)

This is a Senate Joint Resolution from the 2023 session that proposes to change outdated male-only references to South Dakota’s governor and other officials in the state constitution and statutes. It's a procedural update in language that is not expected to draw much opposition.

This story was produced by South Dakota News Watch, an independent, nonprofit news organization. Read more in-depth stories at sdnewswatch.org and sign up for an email every few days to get stories as soon as they're published. Contact Stu Whitney at  at stu.whitney@sdnewswatch.org.