Top South Dakota law enforcement officials have filed a lawsuit using state funds to void the result of a voter-approved ballot initiative to legalize adult-use marijuana.

The marijuana legalization measure – Constitutional Amendment A – received 54 percent of the vote and was one of two cannabis-related proposals approved by South Dakota voters at the November elections. The other – Measure 26 – legalizes cannabis for medical purposes and was approved by 70 percent of voters.

Constitutional Amendment A is now subject to a legal challenge by Kevin Thom, the sheriff of the state’s second most populous county, and Highway Patrol Superintendent Rick Miller. South Dakota Gov. Kristi Noem – an opponent of marijuana and hemp reform – authorized the use of state funds for Miller’s legal costs.

“In South Dakota we respect our Constitution,” Noem said. “I look forward to the court addressing the serious constitutional concerns laid out in this lawsuit.”

The lawsuit claims the proposal to legalize adult-use cannabis violates the “one-subject rule” in South Dakota’s Constitution by addressing “multiple subjects” such as the allocation of taxes raised from marijuana sales. It further states the measure is not an amendment but a “drastic revision” which involves adding “an entirely new article” to the Constitution. As such, the plaintiffs argue, the result of the ballot should be declared void and marijuana should remain illegal for recreational purposes.

One of the groups behind the cannabis ballot measures, South Dakotans for Better Marijuana Laws, said Miller and Thom’s lawsuit is based on “two incorrect legal theories,” and described the revision vs. amendment argument as a “manufactured distinction… [that is] unsupported in the law and is utterly insufficient as a basis for overturning a constitutional amendment approved by voters.

Several current and former state and law enforcement officials responded to Miller and Thom’s lawsuit by filing their own legal brief calling for the case to be dismissed.

“I think the will of the voters and the will of the people should be respected,” said Randy Seiler, chair of South Dakota’s Democratic Party, to Rapid City Journal. “That’s the literal definition of a democracy, where people vote and the wishes and the decision of the voters is respected.”

Michael Card, an associate professor of political science at the University of South Dakota, said the matter should have been settled prior to the election.

“This is actually an election complaint,” Card said. “The time to file that complaint, as our assistant attorney general noted, was before it even got on the ballots, before the ballots were printed.”

That’s what happened in Nebraska nearly two months before the elections in November. Plaintiffs successfully used the “one-subject” legal argument in the state’s Supreme Court to ensure voters didn’t get the chance to decide on a measure to legalize medical marijuana in the state.

state marijuana laws