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South Dakota's Legal Weed Hopes: Ruined by a Missing Phrase?

By William Vogeler, Esq. on August 03, 2017 3:56 PM

Is it possible that the authors of South Dakota's marijuana initiative were stoned at the time they drafted it?

After all, marijuana proponents invariably use the hallucinogenic drug. Memory loss and paranoia, for example, are common side effects.

And apparently, the authors forgot to include a critical phrase in their ballot draft. The state attorney general says now the ballot measure legalizes only paraphernalia -- not marijuana.

They're "Trying to Kick Us"

Melissa Mentele, an advocate with New Approach South Dakota, said Attorney General Marty Jackley and the Legislative Research Council have it in for them.

"The state keeps trying to kick us and kick us," she said.

Mentele said the attorney general took a potshot at the measure earlier this year, and the research council bought into his opinion. The Secretary of State also deemed many signatures were invalid.

"It's just one person's perception of grammar versus another's," says Mengele, who is not a lawyer. "This is a bill that has won recreation in three other states."

"Of the State"

Medicinal and recreational marijuana use has been legalized in many states, and more than half of Americans favor making it legal everywhere. It is still criminal under federal law, however.

The South Dakota measure, which is posted on the secretary's website for voters' review, proposes recreational use be made legal. Section 2 says marijuana and possession would not be unlawful under the law "of any subdivision," but the government says it should read "of the state."

Jesse Kelley, a lawyer with the Marijuana Policy Project in Washington, consulted with Mentele on the initiative. She says state governments often run interference on measures to legalize marijuana.

"In Massachusetts in 2016, they tried to fight us on the definition of the word 'hash,'" Kelley said. "This happens all the time."

Editor's note, August 16, 2017: This article incorrectly referred to Jesse Kelley as "he." It has been updated to reflect that Jesse Kelley is a female lawyer. 

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