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HB 1175: Democrats Want One-Year No-Change Period on Ballot Measures

While South Dakota Republicans chip away at the initiative and referendum, South Dakota Democrats are trying to protect the will of the people. Every Democrat in the South Dakota Legislature is backing House Bill 1175, a measure to insulate ballot measures from legislative tinkering. The bill text is brief:

If a measure is submitted to the voters of the state, legislation may not be proposed to affect the will of the voters for a period of one year after the vote on the measure, or the date of enactment, whichever is later.

Notice that HB 1175 would work both ways. If an initiated measure like our minimum-wage increase passed, legislators could not amend or repeal that popularly enacted law for one year. If a referendum succeeded and we repealed a law, legislators could not try to put that law back into effect for a year. Had HB 1175 been in effect in 2013, after we referred and repealed Governor Daugaard's really nasty and counterproductive education reform law in 2012, the Legislature would not have been able to propose bills to restore that law in full or in part; they would not have been able to resurrect the Critical Needs Teaching Scholarship, the sole productive component of that messy education reform package, until 2014.

On the other hand, if an initiative or referendum were to fail, HB 1175 would prevent legislators from revisiting those measures. If voters rejected an initiative to raise sales tax to increase funding for education and health care (as we did in 2012 on Initiated Measure 15), the next year's Legislature could not take up a bill to enact such an increase for such a purpose. I assume that legislators could take up a bill to increase the sales tax for other purposes, and they could take up a bill to increase funding for education and health care by different means.

A failed referendum vote—i.e., a vote in which voters chose to leave the challenged law in place—would lock that law in place in a way that simple legislative passage does not. Had Governor Daugaard's education reform withstood referendum in 2012, it would have become the voters' will, and HB 1175 would have protected it from any amendment in the 2013 session. Lawmakers could not have acted on a change of heart or fixed any gaps in that law until 2014.

I have argued that South Dakota Republicans are trying to weaken the initiative and referendum not for principle or public welfare but for pure political self-interest: they tend to lose initiatives and referenda, and they don't want the pesky electorate messing with GOP power and plans. My Republican readers could retort that Democrats are backing HB 1175 for the same selfish political reasons: South Dakota Democrats see initiatives and referenda as policymaking, organizing, and recruiting activities that serve their partisan interests.

But even if both sides are selfish bastards, the Democrats' defense of initiative and referendum versus the Republicans' attack thereupon demonstrates a fundamental difference in what the two parties think about Us the People. Republicans don't trust us. They cautiously let us vote for elected officials (even there, they throw up roadblocks), but they don't trust us to exercise legislative power directly. They want us, the unwashed and passion-addled mob, to trust those decisions to the elites, the elected officials in whose ears the corporate lobbyists drip their honey. They want a Republic.

Democrats do trust us. They want as many people as possible to vote not just for leaders, but for policies. They believe we the masses really can read, write, and pass good legislation. They recognize the fundamental unfairness in allowing legislators an almost immediate veto over our will while requiring us to undertake the lengthy and arduous process of gathering signatures and campaigning in a general election to challenge legislative action or inaction. Democrats say, "Let the people vote, and let their will stand." Democrats want a democracy.

House Bill 1175 poses some interesting legal questions about how the Legislature would go about fixing problems in initiated laws or laws that withstand referendum. But House Bill 1175 is the only good idea pertaining to initiative referendum to emerge yet from the 2015 Legislature. Turn up the heat on your phones and e-mails, and tell your legislators this is the one I&R bill they should support.


  1. Tim 2015.01.31

    Only one problem with HB1175, single party rule, it won't get out of committee. DOA

  2. Bob Mercer 2015.01.31

    Cory, the fundamental flaws of a one-year hands-off period are:

    Something crazy could be passed by voters (maybe), and we have to endure it for one year; or

    An initiative with a technical mistake could be passed by voters, and we have to live with that problem for a year.

  3. Tim 2015.01.31

    Bob, what you say is true, except the legislature has been passing crazy stuff with piles of technical mistakes in them for years, some how we are still here.

  4. Les 2015.01.31

    "Democrats do trust is". Democrats have no choice Cory.

    Now Tim, that might be considered an astrological statement.

  5. Chris S. 2015.01.31

    @Tim — Exactly. Plus, if anything truly "crazy" were passed (i.e., unconstitutional), it doesn't matter whether the politburo in Pierre gets to monkey with it. "Crazy" unconstitutional stuff would get struck down in court.

  6. Donald Pay 2015.01.31

    There is the problem of Article III, § 1. The relevant part is this: "...This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure....."

    So, whatever the arguments one might make one way or the other, any legislator may propose any measure. That would include all the crazy stuff you see being proposed by legislators, as well as any changes to enacted initiatives. The Legislature is designed to be a nuthouse, and the people are supposed to be the wardens.

    To be fair, the Legislature, except in a very few egregious cases, has curbed their arrogance and been responsible in allowing initiatives to go into effect over a few years before tinkering with language.

    It is really up to the citizens to police the Legislature. If you don't like what they're doing to any part of the code, you can refer their bills.

  7. Troy 2015.01.31

    Don is absolutely right. This wouldn't pass muster under the State Constitution.

    Additionally, to my Democrat friends: All of these "extra-legislature" efforts is a distraction from what should be your priority- Electing Dems to the Legislature. Getting one initiative passed and then having it in place for a year is thinking way to small.

  8. Donald Pay 2015.01.31

    So, this change could be made, but the Constitution would have to be amended. South Dakotans have the power to do that by initiating a constitutional amendment.

  9. mike from iowa 2015.01.31

    I propose to think bigger. Nuke Pierre when the lege is in session and then quickly appoint Dems to all seats and get down to the business of doing the people's business.

  10. caheidelberger Post author | 2015.01.31

    Don, good constitutional point. I'm open to withdrawing this bill and focusing fire elsewhere.

    But Don's citation of Const 3-1 reminds me of something else: we can't refer Senator Brown's SB 166, his I&R signature increase, if it passes. Const 3-1 says we cannot refer measures passed with an emergency clause, and SB 166 ha an emergency clause. Uh oh—better focus on lobbying now!

  11. Nick Nemec 2015.01.31

    I've never supported these types of "no tinkering" proposals simply because no law should be any more sacrosanct than any other law.

    Thanks for the advice Troy, maybe someday South Dakota voters will come to understand that the Democratic Party supports them on pocketbook issues far more than the Republican Party ever will. Until that day I make no apologies for the my party's support for increasing the minimum wage. Contrary to your supposition the minimum wage proposal on the 2014 ballot is the only "extra-legislature effort" the party has undertaken in recent memory.

  12. Donald Pay 2015.01.31

    No, Cory. Just because a bill has an emergency clause or the Legislature says blah, blah about some imaginary emergency does not mean that it fits the Constitutional language. The Legislature can spew all sorts of nonsense about how necessary this is. If they can't prove some catastrophic financial or life and death situation the state, they are fooling themselves that any court is going to take that b.s. seriously.

  13. Bob Newland 2015.01.31

    So Mercer even succumbs to the fear of "What if the voters pass something crazy?"

    Really. It's in print. Right above.

    I am..., well, I am.... No, really I am not. Mercer worked as press secretary for Bill Janklow. He told me in an email, "I will help the media find the 'real story.'"

    That is not the source one should use in deciding whether a given ballot issue is "crazy."

  14. 90 schilling 2015.01.31

    "I will help the media find the 'real story.'" Which story? Surely not banking issues that closed our "open government" in SD and held Treasurer Butler hostage to the AG's office.

  15. tara volesky 2015.02.01

    Did any of the media interview Dick Butler. I think the gag order is over now.

  16. caheidelberger Post author | 2015.02.01

    But Donald, SB 166 includes the line "the support of the state government and its existing institutions," which is one of the criteria Const 3-1 allows for "emergency" clauses. My impression is that the Legislature simply invokes one of those criteria, gets the 2/3 vote, and the bill is passed and enacted as an "emergency" measure. Is there any precedent for challenging the "emergency" implementation of a bill in the courts as not really addressing an "emergency"?

  17. Les 2015.02.01

    The gag order might be over, Tara. We are still wretching from past state government in SD.

  18. Donald Pay 2015.02.01


    Yeah, the legislature can say whatever it wants, but getting a two thirds vote and invoking an "emergency clause" is considerably different than the Constitutional language, which is "... the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions."

    "Immediate" is the modifier. There is no need for an instantaneous switch in the signature limit. And how does a signature requirement affect "preservation of the public peace, health or safety, support of the state government and its existing public institutions?" Any court is going to laugh that out in a minute and a half.

    Any attempt to use an emergency clause in this way would automatically invalidation Article III § 1 for any and every bill. It's not as if this has never been discussed before. For all I know, it's already been decided. In fact, deep in the recesses of my mind I recall that it has been decided.

    I admit there's a particularly virulent brand of top-down, command and control government arrogance and tyranny right now in South Dakota that views citizen participation in government as something to be discouraged. The folks who want to mandate a civics test don't want anyone to actually practice civics.

    So what this bill attempts would constitute a direct assault on the South Dakota Constitution, indeed on the Legislative Article. It would also be a violation of a Legislator's oath to uphold the Constitution.

  19. Les 2015.02.01

    Am I mistaken in thinking Gov Kneip pulled the power into the exec branch with a willing legislature, Don?

  20. Donald Pay 2015.02.01

    Les, I'm sure there are many articles written on executive reorganization. I remember that there was a Constitutional Amendment on executive branch reorganization, allowing a Governor to make these changes with Legislative oversight, and several court decisions in Kneip's favor. Just a few years later, Janklow would use those same powers, as has every governor since Kneip.

    The key here is that the Constitution was followed. That is not the case with either HB 1175 or SB 166.

    Here is the relevant part of the SD Constitution from Article IV. § 8. Reorganization. All executive and administrative offices, boards, agencies, commissions and instrumentalities of the state government and their respective functions, powers and duties, except for the office of Governor, lieutenant governor, attorney general, secretary of state, auditor, treasurer, and commissioner of school and public lands, shall be allocated by law among and within not more than twenty-five principal departments, organized as far as practicable according to major purposes, by no later than July 1, 1974. Subsequently, all new powers or functions shall be assigned to administrative offices, agencies and instrumentalities in such manner as will tend to provide an orderly arrangement in the administrative organization of state government. Temporary commissions may be established by law and need not be allocated within a principal department.
    Except as to elected constitutional officers, the Governor may make such changes in the organization of offices, boards, commissions, agencies and instrumentalities, and in allocation of their functions, powers and duties, as he considers necessary for efficient administration. If such changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the Legislature within five legislative days after it convenes, and shall become effective, and shall have the force of law, within ninety days after submission, unless disapproved by a resolution concurred in by a majority of all the members of either house.
    History: Section proposed by SL 1972, ch 1, approved Nov. 7, 1972; amendment proposed by SL 1984, ch 1, rejected Nov. 6, 1984.

  21. Les 2015.02.01

    I'm not so sure that amendment was a good thing as has been characterized by executive actions since. I agree with you on 1175 and 166. I doubt there is a legislator that would or could stand in the auditorium outside of Pierre and competently state their case. This is doa if they are not willing to risk a political carreer.

  22. Donald Pay 2015.02.01

    And just to be absolutely clear about this, the Constitutional Amendment on reorganization was passed by a vote of the people, Les.

  23. caheidelberger Post author | 2015.02.01

    Donald, if you are right, if SB 166's invocation of the emergency clause would not pass constitutional muster, then who would have standing to challenge that SB 166 (if passed) in court? Could I file for a court injunction right out of the gate as a concerned citizen and potential initiative petition circulator? Would I have to be involved in an active petition circulation to sue?

  24. Donald Pay 2015.02.02

    Cory, I'm not an attorney, though some folks have accused me of it now and then. I have no idea what the best legal strategy would be on that. An attorney might have a different idea, but because I like to ram it up their rear ends as fast as possible, I would start an immediate referendum on SB 166. If there was any, and I mean any, attempt to prevent or delay you from that, I'd sue that day. If there was any attempt by the SOS office to change the signature requirement, I would sue.

  25. Donald Pay 2015.02.02

    I would also look into whether any attempt to use the emergency clause in a fraudulent way constitutes a criminal abuse of power.

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