Before Election Day 2020, it was safe to call South Dakota one of the most conservatives states in the country when it comes to cannabis. Using or possessing any amount of cannabis within state borders carried a $2000 fine and a year in prison, with the possibility of a felony charge, ten years behind bars and a maximum fine of $20,000. Now, however, that has very much changed.
South Dakota voters made their thoughts on cannabis known on November 3rd, becoming the first state so far to legalize both adult-use recreational cannabis and medical marijuana in the same session. Not only did both measures win, but they won by a lot. Measure 26, the ballot measure that will establish a statewide medical cannabis program, won by nearly 70 percent. Congressional Amendment A, the law designed to legalize recreational cannabis use for those 21 and older and even let people grow their own plants at home, passed by more than 35,000 votes.
Before you pack up your bags and head to Sioux Falls to pick up some medicine, this article is going to give you the low-down on all the new laws, rules, regulations you’ll need to know, give you an up-to-date timeline of how things will shake out, and break down any legal challenges or stumbling blocks the new laws might face in the meantime.
What Do Recreational Cannabis Users in South Dakota Need to Know?
So now that the law has passed, you should just be able to head down to the dispensary of your choice, talk with a budtender and go home with some cannabis to legally enjoy, right?
Unfortunately for cannabis enthusiasts throughout the Mount Rushmore State, they’ll have to wait a bit before being able to legally buy products. In fact, you could still go to jail for using, possessing, growing, or transporting cannabis before Amendment A is made official on July 1, 2021, so be careful out there until then.
So that must mean that after that July 1, 2021 date, you’d be free to head to your local dispensary and stock up, right? Well, not exactly. Despite recreational cannabis becoming the law of the land, the state’s Department of Revenue will have until April 1, 2022 to develop licensing regulations for dispensaries and grows all over the state. To be optimistic, that process could take way less time than state legislators have been given but we have our doubts that will be the case.
Dispensaries aren’t going to be possible until those licensing frameworks are set up, so it’s going to be a while before you can just pull up to a recreational dispensary and get some legal cannabis.
Even once that legal framework to make a dispensary possible is done, there are still more hurdles to leap before consumers can get some legal recreational cannabis. The language in Amendment A allows for individual counties, municipalities and townships to choose whether they want to allow commercial cannabis sales, meaning local officials can stop recreational dispensaries from opening if they choose. That could be a major issue outside of the largest population centers of the state in terms of accessibility.
It’s also important to note that once dispensaries do open, people are only permitted to carry up to an ounce of cannabis at a time, with no more than 8 grams of that being concentrate.
That’s where growing your own plants comes in. Amendment A allows for adults over 21 to grow three cannabis plants of their own, but only if a dispensary isn’t available within their jurisdiction. So if you have a dispensary locally, you can’t grow your own plants.
So What About Medical Cannabis in South Dakota?
Thanks to Measure 26, South Dakota is in the process of establishing a medical cannabis program of their own along with a recreational framework by July 1, 2021, when it becomes law.
Once things are official, individuals over the age of 18 with qualifying conditions like cancer, chronic pain, epilepsy, glaucoma, HIV/AIDS, Irritable Bowel Syndrome, Multiple sclerosis, and PTSD will be able to get a card of their own.
Those with their cards can hold up to three ounces of cannabis at a time as well as being allowed to grow and harvest from up to six plants at home. Note that this is three times more than recreational users can carry at once and twice as generous in terms of cultivation. While both laws passed at the same time, it is clear that those who hold a medical marijuana card will be in a stronger position as users in the state of South Dakota.
For those looking to get their medical cannabis cards in South Dakota quickly and easily with just a few taps on their smartphone, check out Leafwell’s comprehensive guide to medical cannabis in South Dakota and join our waitlist.
Legal Challenges to Measure 26 and Amendment A
Despite an overwhelming margin at the ballot box on Election Day, some in South Dakota are launching legal challenges in an attempt to overturn the newly passed measures.
Two law enforcement officers, Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller, have taken to the courts to try to challenge the constitutionality of Amendment A, claiming that every vote either for or against the Amendment should be thrown by the wayside.
“I’ve dedicated my life to defending and upholding the rule of law,” Thom said in a press release. “The South Dakota Constitution is the foundation for our government and any attempt to modify it should not be taken lightly. I respect the voice of the voters in South Dakota, however in this case I believe the process was flawed and done improperly, due to no fault of the voters.”
The basis of their case is that because the marijuana legalization question, a constitutional amendment, covers more than one issue—including the legalization and regulation of marijuana for adults 21 and older, as well as the regulation of medical cannabis and hemp—it violates a 2018 requirement that “no proposed amendment may embrace more than one subject.”
“Our constitutional amendment procedure is very straightforward,” said Miller of the South Dakota Highway Patrol. “In this case, the group bringing Amendment A unconstitutionally abused the initiative process. We’re confident that the courts will safeguard the South Dakota Constitution and the rule of law.”
South Dakotans for Better Marijuana Law, the group behind the initial legalization effort, responded to the legal challenge to the Amendment, saying via social media, “We are prepared to defend Amendment A against this lawsuit. Our opponents should accept defeat instead of trying to overturn the will of the people. Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year.”
In the days since the legal challenge was launched, even South Dakota Governor Kristi Noem has made her position on the matter clear. “I was personally opposed to these measures and firmly believe they’re the wrong choice for South Dakota’s communities,” Gov. Kristi Noem told the local press. “We need to be finding ways to strengthen our families, and I think we’re taking a step backward in that effort.”
She’s even committed to using South Dakota taxpayer dollars to fund an unspecified portion of the lawsuit, according to a spokesperson for Noem. “The governor approved this because she took an oath to support and defend the Constitution. This is part of her duty as governor.”
It’s yet to be seen whether this lawsuit will actually be enough to overturn Amendment A and take recreational cannabis away from the voters who overwhelmingly approved it, but it’s certainly something to keep an eye on if you’re a South Dakota resident on the hunt for legal marijuana as a medical card holder or a recreational user.