Medical Marijuana: South Dakota Ballot Description Erroneous and Apparently Illegal

Organizers of South Dakota's medical marijuana initiative are in for a tough fight in the socially conservative Upper Midwest state. All they ask is that it be a fair fight, but South Dakota Attorney General Larry Long (R) apparently isn’t ready to provide them with an even playing field. Long's office this week issued the summary of the initiative that will appear on the ballot, and that summary contains biased and factually incorrect statements -- an apparent violation of South Dakota law.

The summary language provided by Attorney General Long and appearing on the South Dakota Secretary of State's election web page is as follows:

"Currently, marijuana possession, use, distribution, or cultivation is a crime under both state and federal law. The proposed law would legalize marijuana use or possession for any adult or child who has one of several listed medical conditions and who is registered with the Department of Health. The proposed law would also provide a defense to persons who cultivate, transport or distribute marijuana solely to registered persons. Even if this initiative passes, possession, use, or distribution of marijuana is still a federal crime. Persons covered by the proposed law would still be subject to federal prosecution for violation of federal drug control laws. Physicians who provide written certifications may be subject to losing their federal license to dispense prescription drugs."

While initiative supporters point out several examples of biased or irrelevant description -- referring to "any adult or child" instead of "anyone" in an attempt to raise the specter of youth drug use, referring repeatedly to federal laws against marijuana possession -- it is the final sentence of Long's summary that really leaps out.

Long writes that doctors "may be subject to losing their federal license to dispense prescription drugs in they write recommendations for medical marijuana use," and that's just wrong. The only federal court precedent in such matters, Conant v. Ashcroft, clearly states that physicians may not be punished by the DEA for exercising their First Amendment right to recommend a patient use marijuana. In Conant, the Supreme Court refused to hear the Justice Department's appeal of that US 9th Circuit Court of Appeals opinion.

According to the South Dakota criminal code, "Publication of false or erroneous information on constitutional amendments or submitted questions is a misdemeanor. Any person knowingly printing, publishing, or delivering to any voter of this state a document containing any purported constitutional amendment, question, law, or measure to be submitted to voters at any election, in which such constitutional amendment, question, law, or measure is misstated, erroneously printed, or by which false or misleading information is given to the voters, is guilty of a Class 2 misdemeanor."

Initiative supporters told DRCNet this week they are examining their options. Expect more news on this front next week.