Last updated on 2015.02.02
Democratic legislators stand little chance of passing House Bill 1175, their attempt to insulate the results of initiatives and referenda from Legislative tinkering, since Republicans see the initiative and referendum as useful tool for Democrats. This blog's astute state constitutional scholars note that HB 1175 probably can't withstand court muster, since Article 3 Section 1 says the constitutional provision for initiative and referendum "shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure."
I can't beat Republican supermajorities in committee, but I may be able to defend HB 1175 in court. Another eager reader waves under my nose SDCL 9-20-5.1, a statute addressing municipal initiated measures:
No initiated ordinance or resolution may be amended or repealed by the governing body of a municipality until at least one year has passed from its effective date [South Dakota Codified Law 9-20-5.1, enacted 1977].
Our Legislature saw fit to protect the popular will at the local level by prohibiting local elected officials from changing initiated ordinances for one year. The Republic has not collapsed, and that prohibition has stood for 38 years without a judicial nix.
The constitutional objection to HB 1175 is that Article 3, Section 1 only protects legislators' rights, not city councillors. But Article 3, Section 1 mentions munis:
This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities [South Dakota Constitution, Article 3, Section 1].
This section shall apply to municipalities. This section says the Legislature and members thereof maintain the right to propose any measure. Yet municipalities exercise legislative powers, and the state constitution apparently countenances a state law that restricts that power to protect the will of the voters expressed in initiated measures for one year after enactment.
Rep. Patrick Kirschman, feel free to try this argument out before House State Affairs when you present HB 1175. The existing law protecting local initiated measures raises an interesting question: should the popular will of the statewide electorate enjoy the same protection as the popular will of local voters? Or should local governments have the same (dangerous, disrespectful, anti-democratic) authority to repeal initiated measures as our Legislature?
in your first instance you say HB1775.
Oops, maybe there are two bills.
Any changes to the initiative process should be referred to a public vote. I suspect the changes would not be upheld. Most South Dakotans aren't hacks; most see that the Republican Party does a poor job of representing them. Most see that the initiative and referendum process is an essential tool in a state dominated by one party.
Democrats, like it or not the I/R is your best vehicle for accomplishing things. You need to pour every thing you have into fighting this. If the gov signs it, you need to get it on the ballot as a referendum.
Mr. H. I don't know what king of French math you are running these days but your spelling and numbering is getting almost Gant-like. If the legislatures do 700 laws this year we shall all poop blue Hoffman hats.
Sorry, Bob! There is just one bill on this subject, HB 1175. Evidently our legislators have me thinking of Revolution.... ;-)
Neal, I agree that we should pour heart and soul into defending I&R. Democrats have an obligation to defend direct democracy.
Grudz, I am the king of French and math in the South Dakota blogosphere. Don't you forget it.
Thanks, Cory, for doing your due diligence and finding these technicalities and conflicts. Should make for some interesting scramblingas to justify passing these changes, let alone defending them in court.
Glad to serve, CLCJM. I'm not convinced this local ordinance supplies a slam-dunk court argument to defend HB 1175, but it raises a solid goose-gander political point.
Maybe we should look at it this way: We the People can't refer and repeal a state law with our final vote any sooner than seven and a half months after passage. When We the People want to initiate a law, we have to file the petitions a full year before the election. Legislators should have to wait at least as long to undo the changes we make by that process.
Once, again Cory you state it so well. Hypocrisy seems to predominate in the predominately Republican legislature!