Kristi Noem & the Thom v. Barnett Litigation Strategy

Former Gov. Kristi Noem (now U.S. Secretary of Homeland Security since January 25, 2025) was the architect of the Thom v. Barnett litigation strategy. Although a Noem spokesperson initially denied the governor had asked for the suit, on January 8, 2021 Noem issued an executive order ratifying Col. Rick Miller’s Amendment A lawsuit and directed taxpayer funds to the litigation. Noem nominated trial-judge Christina Klinger in early 2019 — about two years before Klinger struck down Amendment A.

Legal Disclaimer: This information reflects South Dakota cannabis law as of June 2026 and is for educational purposes only. It is not legal advice. Laws and regulations change — always verify current rules with the South Dakota Department of Health Medical Cannabis Program or a qualified attorney. Cannabis remains illegal under federal law.

Last verified: May 2026

Noem’s Path

Kristi Noem served as Governor of South Dakota from January 5, 2019 to January 25, 2025. Prior to becoming governor, she served as SD’s sole U.S. Representative (2011–2019). She is now U.S. Secretary of Homeland Security under President Trump (confirmed January 25, 2025).

Pre-Election Posture

During the 2020 SD election campaign, Noem’s public posture on Amendment A was relatively low-key. Her administration did not actively oppose the measure during the campaign cycle. Pre-election polls showed Amendment A leading; the measure passed 54.18%/45.82% on November 3, 2020.

The Thom v. Barnett Architecture

The lawsuit architecture was constructed in three stages:

Stage 1 — The Plaintiffs Filed

Less than a month after the November 3, 2020 election, Pennington County Sheriff Kevin Thom and SD Highway Patrol Superintendent Col. Rick Miller filed suit. A Noem spokesperson initially said the governor had not asked them to file.

Stage 2 — Noem’s January 8, 2021 Ratification

On January 8, 2021, Gov. Noem issued an executive order ratifying Col. Miller’s lawsuit and directing taxpayer funds toward the litigation. The executive-order ratification was the decisive event — it transformed the lawsuit from a personal action by Thom and Miller into an executive-branch-supported challenge.

The ratification was significant for procedural reasons: when the SD Supreme Court considered standing in Thom v. Barnett, the court held that neither Thom nor Miller had personal standing, but Noem’s written ratification of Miller’s declaratory-judgment action allowed it to proceed as if she had brought it.

Stage 3 — The Klinger Trial Court Ruling

Sixth Circuit Judge Christina Klinger struck down Amendment A on February 8, 2021 on single-subject-rule grounds. The trial-court ruling was widely commented on for the relatively rapid resolution after the January 8 executive-order ratification.

The judicial-nomination context: Noem had nominated Klinger in early 2019 — about two years before Klinger struck down Amendment A. SD legal observers commented on the timing without alleging actual misconduct, but the timing was a documented feature of post-ruling commentary.

The November 24, 2021 Affirmance

The SD Supreme Court affirmed Klinger 4–1 on November 24, 2021, in Thom v. Barnett, 2021 S.D. 65. Noem’s post-ruling statement was decisive in the 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."

The "rule of law and our Constitution" framing was politically effective. Noem positioned the overturning of voter-approved Amendment A as a rule-of-law victory rather than as the override of voter mandate that critics characterized.

The IM 26 Medical Implementation Posture

Noem’s administration accepted the medical-cannabis program (IM 26) but sought to delay implementation:

Asked the legislature to push the effective date from July 2021 into 2022.
The state House moved a delay bill, but House-Senate negotiations collapsed; the original July 1, 2021 effective date held.
Patient registrations began in late 2021. The first sale was July 1, 2022 at Native Nations Cannabis (FSST).

The 2024 Federal Pivot to DHS

Noem’s 2024 campaign pivot to U.S. Secretary of Homeland Security positioned her in federal cannabis-policy space:

DHS does not directly administer federal cannabis enforcement (DEA does).
DHS’s border-enforcement work intersects with cannabis (Customs and Border Protection prevents cross-border cannabis import).
Trump’s December 2025 executive order directing the AG and DEA to complete cannabis Schedule III rescheduling involved Noem’s broader DHS role indirectly through interagency coordination.
The April 28, 2026 federal Schedule III rescheduling was implemented under DOJ / DEA but with broader administration coordination including DHS.

Long-Term Constitutional-Law Legacy

The Thom v. Barnett litigation strategy has produced lasting consequences for SD cannabis policy:

The single-subject rule (Article XXIII § 1) constrains future ballot constitutional-amendment design.
Future cannabis ballot measures must be filed as initiated statutes (avoiding single-subject) or constitutional amendments addressing only one subject.
The 2026 Constitutional Amendment L (60% supermajority for amendments) further constrains future ballot reform.
The political reality that voter mandate alone cannot guarantee adult-use legalization in SD is now established.