Amendment A & Thom v. Barnett — The Only U.S. Voter-Approved Rec Erased by Courts

Last verified: May 2026

What Amendment A Did

Amendment A was a constitutional amendment placed on the November 2020 ballot, titled by Attorney General Jason Ravnsborg as: "An amendment to the South Dakota Constitution to legalize, regulate, and tax marijuana; and to require the Legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use." Sponsored by South Dakotans for Better Marijuana Laws (SDBML) and supported by the Marijuana Policy Project, it would have:

• Legalized adult-use cannabis on July 1, 2021.
• Set a 15% cannabis sales tax.
• Allocated half of post-administrative tax revenue to public schools.
• Directed the legislature to enact medical-cannabis and hemp statutes by April 1, 2022.

The Vote

Amendment A passed 54.18% yes / 45.82% no on November 3, 2020 — a margin of approximately 35,000 votes statewide. The same election approved Initiated Measure 26 (medical) 70%/30%, making SD the first U.S. state to approve adult-use AND medical on the same ballot.

The Lawsuit Architecture

Less than a month after the vote, Pennington County Sheriff Kevin Thom and SD Highway Patrol Superintendent Col. Rick Miller filed suit. Although a Noem spokesperson initially said the governor had not asked them to file, on January 8, 2021, Gov. Kristi Noem issued an executive order ratifying Miller’s lawsuit and directed taxpayer funds toward the litigation.

Noem had nominated the trial judge, Sixth Circuit Judge Christina Klinger, in early 2019 — about two years before Klinger struck down Amendment A on February 8, 2021. The judicial-nomination timing was widely commented on by SD legal observers.

Thom v. Barnett, 2021 S.D. 65 — The 4–1 Decision

The South Dakota Supreme Court heard oral argument on April 28, 2021, and issued its opinion on November 24, 2021 — nearly seven months after argument, a delay so notable that SD legal commentators ranked it the most remarkable feature of the decision. The court affirmed Klinger 4–1.

The Majority — Single-Subject Rule Violation

Chief Justice Steven Jensen, joined by Justices Janine Kern and Patricia DeVaney (and Justice Mark Salter specially concurring), held that Amendment A "embraced at least three separate and distinct subjects":

• Recreational marijuana legalization.
• Hemp regulation.
• Medical marijuana.

The court therefore held that Amendment A violated Article XXIII § 1 of the South Dakota Constitution, the single-subject rule for constitutional amendments. Importantly, the single-subject rule was itself a 2018 voter-initiated amendment — SD voters had constraine future ballot amendments three years before the Amendment A vote.

The court noted that the proponents could not identify "a single instance when voters in another state have been asked to approve a constitutional amendment to legalize recreational marijuana, medical marijuana, and hemp in a single vote."

The Special Concurrence

Justice Mark Salter agreed there was a single-subject violation but wrote that he would "leave for another day the question of whether a violation of Article XXIII’s single-subject rule renders a constitutional amendment void in all cases."

The Dissent

Justice Scott Myren dissented from the single-subject holding, writing: "the propositions in constitutional Amendment A are ‘incidental to and necessarily connected with’ the object of providing a comprehensive plan for all phases of legalization, regulation, use, production and sale of marijuana and related substances. Comprehensive plans are not prohibited in a single constitutional amendment if they are related to a single purpose."

(Note: Some advocacy materials misattribute the dissent to Justice Patricia DeVaney. The official ujs.sd.gov decision summary and the published opinion clearly identify Myren as the dissenter; DeVaney joined the majority.)

The Procedural Holdings

The court was unanimous on three procedural questions: (1) the circuit court properly dismissed the parallel election contest; (2) neither Thom nor Miller had personal standing, but Gov. Noem’s written ratification of Miller’s declaratory-judgment action allowed it to proceed as if she had brought it; and (3) pre-election challenges were not required.

The Singular Status

South Dakota became, and remains as of May 2026, the only U.S. state where voters approved adult-use legalization at the ballot box and the courts overturned it before any sales occurred. Gov. Noem’s statement after the ruling underscored the political framing: "South Dakota is a place where the rule of law and our Constitution matter. We do things right. … This decision does not affect my Administration’s implementation of the medical cannabis program voters approved in 2020."

Constitutional-Law Aftermath

The constitutional-law lesson, confirmed by University of South Dakota law professor Thomas E. Simmons, is that South Dakota’s 2018 single-subject rule (itself a voter-initiated amendment) now meaningfully constrains the design of future cannabis ballot amendments. As Simmons summarized: "the single subject rule ensures that South Dakota will never witness its own Big Beautiful Bill." Pure adult-use legalization, taxation, regulation, and hemp policy must each travel as separate measures.

The 2026 ballot includes Constitutional Amendment L, a legislatively referred amendment that would require future constitutional amendments to clear a 60% supermajority — further constraining future ballot reform.

Subsequent Recreational Re-Attempts

SDBML refiled twice as initiated statutes (not constitutional amendments, to avoid the single-subject issue):

• Initiated Measure 27 (2022): Failed 52.92% no / 47.08% yes.
• Initiated Measure 29 (2024): Failed ~55.6% no / 44.4% yes.

See IM 27 / IM 29 page. See why three losses page.

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