Last week, the Supreme Court of South Dakota overturned a voter-approved, constitutional modification to legalize grownup use hashish statewide. Governor Kristi Noem instigated the anti-democratic combat on social welfare grounds, though the court docket made its ruling on technical grounds, discovering that Amendment A violated a “single-issue” initiative topic requirement. If that’s true, you’d need to surprise why Noem et al. waited till after the election outcomes to problem the construction of the initiative. You may also surprise how Amendment A discovered itself onto the poll within the first place. Clearly, the Secretary of State had permitted this submission.

This is the second time in 2021 that a state supreme court docket has struck down a voter-approved initiative to legalize hashish use. In May, the Mississippi Supreme Court abolished Initiative 65 (regulating medical hashish), although a whopping 73% of voters had backed the measure. In that case, the Court cited a constitutional requirement that signatures be collected equally throughout 5 Congressional districts. Since the instatement of that requirement, nevertheless, the state had dropped from 5 districts to 4, and the usual was due to this fact unimaginable to fulfill. (Yes, you learn that proper.)

These outcomes are discouraging however not shocking: the South Dakota choose who first dominated towards native voters was a very recent Noem appointee, and the Mississippi judiciary is a nationwide embarrassment relating to hashish. Anyway, right here we’re.

Something necessary to know about hashish legalization is that solely 21 states enable citizen-approved poll initiatives. The method through which Colorado, Washington, Oregon, California, and so forth., first legalized hashish for medical or grownup use merely isn’t obtainable in a majority of states. Another necessary factor to know is that authorized challenges to hashish poll measures have been round for a long time. They simply haven’t succeeded till lately, and most of them have acquired much less consideration within the media than within the courts. Historically, courts have checked out requests to overturn the desire of the voters with sturdy skepticism.

Based on my analysis, there are 9 states the place voters could have the chance to approve hashish poll measures in 2022. Those states are: Arkansas, Idaho, Missouri, Nebraska, North Dakota, Ohio, Oklahoma South Dakota and Wyoming. The initiatives vary from decriminalizing sure quantities of hashish, to creating packages for medical use and grownup use. Most of those states have already got some type of hashish “legality” on the books, and residents of a few of these states have permitted earlier hashish poll measures. You can assume a number of of the 2022 initiatives will move, and you may as well assume that almost all or all of them will likely be challenged– utilizing a acquainted playbook.

Signature Collection Challenges

These challenges are typically damaged into two prongs. The first is a problem to the validity of signatures gathered, and the second is a problem to the {qualifications} of the signature collectors themselves. The Mississippi litigation referenced above succeeded on the primary prong, however each could be problematic.

In all states, a advanced overlay of constitutional provisions, statutes and administrative guidelines regulate signature assortment, verification and counting. During COVID, the necessities have grow to be even more challenging. Canvassers in all states are suggested to pay very cautious consideration to course of strictures right here; and to count on challenges to requests for digital signature gathering or different lodging.

Initiative or Ballot Language Challenges

This class of problem can sink an initiative previous to poll placement, or after voter approval. Earlier this yr, the Florida Supreme Court ruled that an grownup use marijuana initiative was “misleading” after the sponsors had expended great time and sources gathering 556,000 signatures. A number of months later, the court docket ruled towards the activists’ second try, once more calling the poll title “misleading” and conclusively barring it from statewide poll consideration. Brutal.

Single-Subject Rule Challenges

Many states have guidelines that an initiative or poll measure can tackle solely a “single subject.” And South Dakota organizers aren’t the one ones who’ve felt the sting of a problem on these grounds.

In December of 2020, the Nebraska Supreme Court ruled that the Nebraska Secretary of State had wrongly allowed a medical marijuana initiative to qualify for the poll. This ruling got here at some point earlier than the authorized deadline to certify the measure for the overall poll, and after 180,000 signatures had been gathered. In an exceedingly technical opinion, the court docket discovered that that a provision permitting for each the use and manufacturing of medical marijuana merchandise in Nebraska had been two completely different topics. The end result right here could be humorous if it weren’t true.

Big Picture: The Political Thicket

Ultimately, most authorized challenges to hashish poll measures and initiatives happen in conservative states, which have undertaken an “assault” on ballot initiatives extra typically over the previous few years. The try and impede initiative lawmaking is an extension of voter suppression methods. It makes use of many instruments, together with:

  • inflating signature assortment necessities;
  • compressing assortment timelines;
  • enacting single-subject guidelines that go away measures open for conservative judicial interpretation;
  • growing voter thresholds past a easy majority to 60% or extra; and
  • capping the extent to which personal events can donate to initiative campaigns.


Unfortunately, the foreseeable development in lots of states is that poll initiatives will likely be more durable to maneuver by means of the system than ever earlier than. That’s a drawback not only for advocates of ending hashish prohibition, however for advocates on a broad spectrum of social and political points. With hashish, nevertheless, the issue feels notably acute: Gallup’s most recent polling exhibits that 68% of Americans assist legalizing hashish, with no qualification associated to medical use.

We will proceed to trace motion on the federal stage and by particular person state legislatures as to ending hashish prohibition. In the meantime, it appears grass roots organizers have their work lower out for them.

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