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Jackley Issues Discouraging Ballot Measure Explanations; Petitions Not Delayed by Fiscal Impact Statement

Two proposed ballot initiatives have cleared another hurdle to petition circulation. On Wednesday, Attorney General Marty Jackley published his explanations of the initiatives proposed by Bob Newland and Andrew Ziegler to ban the transfer of alcohol and tobacco in South Dakota.

The explanations seem superfluous, since they mostly restate the straightforward language of the initiated measures themselves. The proposals would simply make South Dakota’s alcohol and tobacco laws consistent with our marijuana laws, assigning the same penalties for the transfer of the same amounts of each hazardous drug.

The explanations also give the Attorney General the chance to discourage voters from supporting the measures. The second paragraph of each explanation gives this warning:

If approved, this measure will result in a loss of state and local tax and license revenues. Also, the measure will likely be challenged in court on constitutional grounds. If the challenge is successful, the State of South Dakota may be required to pay money damages, attorney fees and costs [Attorney General Marty Jackley, explanations of Consistent South Dakota tobacco and alcohol initiatives, 2015.05.20].

Alas, this bias against ballot measures is authorized by state statute:

The attorney general shall prepare an attorney general’s statement which consists of a title and explanation. The title shall be a concise statement of the subject of the proposed initiative or initiated amendment to the Constitution. The explanation shall be an objective, clear, and simple summary to educate the voters of the purpose and effect of the proposed initiated measure or initiated amendment to the Constitution. The attorney general shall include a description of the legal consequences of the proposed amendment or initiated measure, including the likely exposure of the state to liability if the proposed amendment or initiated measure is adopted. The explanation may not exceed two hundred words in length. The attorney general shall file the title and explanation with the secretary of state and shall provide a copy to the sponsors within sixty days of receipt of the initiative or initiated amendment to the Constitution. [SDCL 12-13-25.1].

The Legislature inserted this requirement into the ballot initiative process in 2009. While the law calls for the AG to issue an “objective” explanation, it invites the same soft condemnation of any ballot initiative as a potential legal liability for the state. State law appears not to allow the Attorney General to campaign against a ballot initiative on taxpayer time (see SDCL 12-27-20, prohibiting expenditure of public funds to influence election outcome), yet the above explanation appears designed to influence the adoption or defeat of a ballot measure.

Objective or not, the Attorney General’s publication of these explanations means Newland and Ziegler need only submit their final ballot measure texts to Secretary of State Shantel Krebs, obtain her stamp of approval, and we’ll have petitions to ban alcohol and tobacco sales in South Dakota.

Newland and I were trying to figure out whether petitioning would also have to wait for the fiscal impact statement the 2013 criminal justice reform bill added to the initiative process. Kea Warne, Deputy Secretary of State in charge of elections, had to check with the house lawyer, since this is the first election cycle in which the law has been in effect for submitted initiatives. The official statement from Warne is that the Secretary of State does not have to wait for the fiscal impact statement to approve initiative petitions for circulation. Whew! I’m still inclined to believe that the state number-crunchers could turn around a fiscal impact statement as quickly for a few initiatives as they do for multiple bills within a 40-day Legislative session, but it is a relief to know that, amidst all the other barriers the powers that be have raised to circulating ballot measures, the fiscal impact will not delay the appearance of Newland and Ziegler’s petitions.


  1. 96Tears 2015-05-22 09:31

    Interesting. The Attorney General is precluded from commenting on the lawfulness of legislation under consideration by the State Legislature. So why isn’t the same rule applied when Jackley wants to snipe away at a measure to be decided by The People?

    The exception to this rule in recent years was Mark Barnett showing up in committee to derail a bill which would have prevented the state video lottery program from being found unconstitutional — which the state Supremes (back when they were allowed to think independent of the Governor’s office) did and it threw the state into fiscal hell until a special session was convened to bail out the state.

    Now, if we’re going to have the AG “do his job” against voters, maybe he can do his job with the legislature. Like every time those bozos propose anti-choice or anti-LBGT legislation, the AG should also be compelled to add this warning: “The measure will likely be challenged in court on constitutional grounds. If the challenge is successful, the State of South Dakota may be required to pay money damages, attorney fees and costs.”

  2. caheidelberger Post author | 2015-05-22 11:40

    Very good point, 96. His assistant Mr. Pankratz said last week that AGs aren’t supposed to comment on the legality of bills because that comment can be used against them if that bill becomes law and goes to court and they are standing there trying to defend the law. The state does not view the people as part of the state. It does not accord their constitutional legislative power the same respect as the Legislature’s.

    And really, couldn’t that statement apply to any initiative put forward? It seems to go without saying that any law could face a costly court challenge. Let’s strike that explanation requirement entirely!

  3. Donald Pay 2015-05-22 17:33

    Is SDCL 12-13-25.1 constitutional? I wonder if someone would like to test that.

    I think parts of the statute are an unconstitutional interference in the initiative process. How can this be considered a “suitable provision for carrying into effect the provisions of [the initiative]”? It is a outright interference in the people’s legislative power and serves no purpose other than to discourage people from signing the petition and voting for the initiative.

    This provision wasn’t seen as “suitable” for the entire history of the initiative process up until 2009. There appeared to be no reason for much of the bill, except power politics by people who want to get rid of the initiative. The only thing that sticks out about the bill is this: it was a special interest bill with massive support from the nearly entire lobbying contingent representing the usual suspects who have always supported getting rid of the initiative and referendum. Just read the list of special interests who testified in support of this monstrosity. It’s everyone that should be lined up and shot in South Dakota. Who opposed it? The lobbyist for Dakota Rural Action, a group that has supported many initiatives and proposed a few.

  4. 96Tears 2015-05-22 17:52

    Don’s right. An attorney is needed to kick Jackley in the whitey tighties. Alas, the lionhearted Patrick Duffy is no longer with us. Who possesses the correct amounts of desire, chutzpah and gray matter to take on this quest?

  5. Donald Pay 2015-05-22 20:02

    Of course, when I say “…everyone that should be lined up and shot….” I don’t mean they should be shot with anything that is lethal. A taser will do.

  6. Bob Newland 2015-05-22 22:40

    The constitutionality of a law banning the transfer of one or both of the two deadliest drugs allowed to be sold and taxed in SoDak? Now, won’t that be an interesting Supreme Court session?

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