In response to a discussion about public records law, Attorney General Marty Jackley has sent Dakota Free Press PDF scans of the five proposed ballot initiatives currently on his desk.
We get our first public look at the proposed constitutional amendment from Doug Kronaizl to strengthen the power of referendum and initiative in South Dakota. The amendment would allow voters to refer laws passed with emergency clauses; whereas regular laws referred to a vote are suspended until/unless voters approve them at the general election, referred laws with emergency clauses would stay in effect until the general election. The amendment would still allow the Legislature to monkey with initiated measures but would require a Nebraska-style two-thirds vote. The amendment would apply to any initiated measures passed in the 2016 general election or thereafter.
The Attorney General’s document also includes the four initiated laws thus far submitted:
- A three-section ballot measure to cap interest rates at 36%.
- The one-section proposal from Bob Newland and Andrew Ziegler to prohibit the transfer of alcoholic beverages (first reported and discussed on this blog on April 24).
- Newland and Ziegler’s similar proposal to ban the transfer of tobacco and tobacco-smoking paraphernalia.
- A 95-section proposal to “provide for regulation, access and compassionate use of cannabis in South Dakota.”
Read these drafts with caution: until they are approved and stamped by the Secretary of State, this initiated amendment and the four initiated laws are all drafts. Sponsors may take them back, revise them, simplify or complicate, who knows what. But these documents give us our first complete look, in the sponsors’ own words, at the diverse topics the initiative sponsors want us to decide in 2016.
The release of these ballot measure drafts comes after I got to wondering (out loud, by e-mail, to the Attorney General) about how those documents might fit into South Dakota’s public records laws:
- The Attorney General’s office has on file documents showing the draft text of five proposed ballot initiatives.
- The documents appear to meet the SDCL 1-27-1.1 definition of public records and thus would be open to examination by any interested person under SDCL 1-27-1.
- None of the exceptions of SDCL 1-27-5 appear to exempt draft texts of ballot initiatives from public examination.
- SDCL 1-27-7 and SDCL 1-27-9 exempt certain “drafts” from public examination, but these statutes appear not to target ballot initiatives.
But now I’m really wondering: if the drafts of proposed ballot initiatives are public records when they hit the Attorney General’s desk, might they also be public records when they hit the Legislative Research Council’s desk in the preceding stage of the initiative process? And if that’s the case, could we make the same argument about draft legislation submitted by legislators to the LRC prior to the beginning of the Session?