South Dakota will vote on legalizing pot — with a twist

South Dakota voters will decide later this year whether to become the 20th state in the nation to legalize marijuana for recreational use, after supporters filed thousands of signatures with state elections officials earlier this month.

But five months before Election Day, it’s not clear exactly what share of the vote supporters must rally in order to win approval.

That’s because those same voters head to the polls next week in a primary election that could rewrite the rules just ahead of November’s vote. On Tuesday, voters will decide whether to approve Amendment C, a proposed change to the state’s constitution that would require most ballot measures to win 60 percent of the vote in order to pass, rather than a simple majority.

Amendment C, passed by the legislature this year, would single out ballot measures that raise taxes and fees or that require spending more than $10 million over five fiscal years, a low threshold that would likely include most measures on which voters get to decide.

Legislators who supported the amendment say it will bring the state’s ballot initiative process into line with existing rules that govern the legislature, which needs a two-thirds majority to approve any tax or fee increase.

“This will make it harder for outside special interest groups to raise our fees and taxes using ballot measures,” state Rep. Tim Goodwin (R), one of the amendment’s prime sponsors, told The Hill in an email. “Thus making it harder to grow government through ballot measures.”

The proposed amendment would put South Dakota among the small handful of states that require certain initiatives to reach a threshold greater than 50 percent plus one in order to pass.

Florida requires a two-thirds vote to approve constitutional amendments that create new taxes and fees, Washington State requires a 60 percent threshold for ballot measures related to gambling, and Utah requires a two-thirds vote to approve measures related to hunting.

In South Dakota, supporters of legal marijuana turned in more than 25,000 valid signatures to qualify for November’s ballot, well above the 16,691 signatures required under state law, Secretary of State Steve Barnett (R) said Friday.

But because the legal marijuana initiative would create new taxes on the product it seeks to legalize and regulate, it would be among the initiatives that must meet the higher threshold for passage under Amendment C.

“Amendment C is a disgraceful sneak attack on the constitutional ballot initiative rights of the people of South Dakota. Placing this type of constitutional amendment on a primary ballot is completely indefensible,” said Matthew Schweich, who runs South Dakotans for Better Marijuana Laws, the pro-legalization campaign. “The political establishment is trying to mislead voters by telling them that Amendment C is about taxes. It’s not about taxes. It’s about politicians trying to control the voice of the people.”

Legalization supporters have justifiable cause for concern: This is the second time South Dakota voters have voted on an initiative to legalize marijuana. The last time they did so, in 2020, it passed with 54 percent of the vote — short of the 60 percent threshold.

That ballot measure was struck down by the state Supreme Court, after a challenge spearheaded by the superintendent of the South Dakota Highway Patrol, a top ally of Gov. Kristi Noem (R).

This time, supporters say they have corrected the technical glitch that the court cited in striking down the last measure. In a statement issued when they turned in the signatures, Schweich said the legal wrangling had strengthened the argument for legalization.

“[A] substantial number of the people who signed our petitions did so primarily because they believe the ballot initiative process must be respected by politicians,” he said. “This petition drive was bigger than just cannabis — it was an opportunity to restore the will of the people.”

If South Dakota voters approve the measure in November, they would become only the third Midwestern state to legalize recreational marijuana, after Illinois and Michigan.

Last week, Rhode Island Gov. Dan McKee (D) signed a bill making his state the 19th in the nation to legalize recreational pot. Delaware Gov. John Carney (D) vetoed a measure passed in his state, though legislators are mustering the votes for a historic attempt to override that veto.