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Legislature Could Add Five Amendments to 2016 Ballot

To prepare for my speech this noon to the Brown County Democratic Forum (come listen! come ask questions! come eat mashed potatoes!), I put together my Ballot Measures webpage, with pages on each of the ten ballot questions we get to vote on this fall and my yeas or nays for each.

Five of those ballot measures are constitutional amendments. If the Legislature has its way, we may get five more!

House Joint Resolution 1001 would nip the Governor by taking away his power to appoint replacements for our U.S. Senators in case of vacancy. (I’d like to apply that power to vacancy of intellect and legislative achievement, but that’s another post.) I like the idea of making the power of appointment less autocratic and putting it closer to a popular vote (frankly, I’d prefer special election for any such vacancy, as we do with the U.S. House… and hold on for SJR3 below!). But the framers of HJR 1001 think a little too highly of themselves: the amendment would limit the choices to fill a U.S. Senate vacancy to “duly elected legislators.”

I don’t know—South Dakota’s state Senators aren’t distinguishing themselves as profound statesmen lately.

Senate Joint Resolution 4 also takes away the Governor’s power to appoint a replacement U.S. Senator, a power exercised five times in South Dakota history and last used in 1962. However, SJR 4 uses slightly different wording, specifying that the Legislature would choose the replacement Senator from among “the current members of the Legislature.” That language difference suggests that HJR 1001 would exclude legislators appointed by the Governor who have not yet won election by their constituents, while SJR 4 would allow gubernatorial appointees Fiegen, Shorma, and Steinhauer to stand for a vacant U.S. Senate seat.

If I had to pick between these two options, I’d go with HJR 1001 and contend that a legislator serving just by dint of gubernatorial whim shouldn’t get the same shot at the U.S. Senate as Legislative colleagues who’ve had to win an election. But both of these amendments stink of Legislative elitism. The only sponsor I see on either bill who isn’t a complete radical right-wingnut and who might have the statesman chops to handle a U.S. Senate seat is Rep. Lee Schoenbeck.

But if you Legislators want to put an amendment on the ballot that says, “Hi, voters! We think we’re the only 105 people in South Dakota smart enough to be U.S. Senators,” well, you go right and saddle your incumbent candidates with that snobbery. Your challengers and the voters will have all sorts of fun roasting you at the polls.

Perhaps to camouflage their elitism, a bunch of legislators want to cloak themselves in gun glory with Senate Joint Resolution 1, which would amend our protection of the right to bear arms to sound just a touch tougher:

The fundamental right of the citizens to bear arms in defense of themselves and the state shall not be deniedinfringed.

I invite readers to tell me whether that wording makes any substantive difference in the courts or whether the only practical effect of this amendment would be to increase ballot length and sustain certain members’ NRA ratings.

Senate Joint Resolution 2 is real daily meat and potatoes lawmaking. Democratic Senator Bernie Hunhoff brings back his proposal for a corporate income tax and gets Republican Representative Thomas Brunner to be his House sponsor! The language is pretty simple:

The Legislature shall impose a corporate income tax. However, this section does not apply to any for-profit educational institution or any insurance company subject to a tax on gross premiums or financial institution subject to the bank franchise tax. The revenue and interest generated by the tax, less the cost of administration, is dedicated for the purpose of providing property tax relief. The rate of taxation imposed on corporate income shall be an amount not to exceed six percent of the federal taxable income. The Legislature may exempt an amount of federal taxable income not to exceed two hundred fifty thousand dollars from the tax imposed by this section.

SJR 2 would be revenue neutral, offsetting the corporate income tax dollar for dollar with property tax relief. Hmm… tax corporations at no more than 6%, maybe exempt the first quarter million, then redistribute that revenue to all property owners—that beats the regressive tax scheme the Governor wants to use to fund teacher pay raises!

Legislators have a chance to be a little more democratic about filling vacancies in their own house. Senate Joint Resolution 3, brought to us by Senator Bernie Hunhoff and four Democratic colleagues, would move the power to fill Legislative vacancies from the Governor to the people:

That Article III, section 10 of the Constitution of the State of South Dakota, be amended to read as follows:

§ 10. The Governor shall make appointments to fill such vacancies as Legislature shall provide procedures for conducting an election to fill any vacancy that may occur in either house of the Legislature.

Now that’s more like it! Let anyone run for those vacancies, and let the people decide! (See? This blog has lots of good ideas that make the Legislative hopper!)

The Legislature can’t amend the state constitution itself; amendments must be approved by a majority vote of the people. Thus, each of these amendments only places its proposal on the ballot. The Legislature already put one amendment on the 2016 ballot last year, Amendment R, which would clarify that the Regents don’t run the vo-techs. We’re already up to Amendment V. If the Legislature sends all five of these new amendments to the ballot (which would be a bit bonkers, since HJR 1001 and SJR 4 conflict, but hey! we have two rate caps on the ballot, so why not two competing Senate vacancy provisions?), we would letter them W, X, Y, Z, then per SDCL 12-13-4, cycle back to label the final amendment A.


  1. Rorschach 2016-02-08 10:31

    The GOP party sponsors of HJR 1001 and SJR 4:

    1) Don’t trust a GOP party governor to appoint a good senator;

    2) Know that they wouldn’t get the appointment from the governor and think they have a better chance from the legislature;

    3) Believe that the current governor, if given the chance, would appoint his son in law, Tonnis Venhuisen.

  2. Paul Seamans 2016-02-08 11:34

    After watching this years legislature in action I would amend HJR 1001 to say “anyone but” duly elected legislators.

  3. Nick Nemec 2016-02-08 12:19

    HJR 1001 and SJR 4 appear to be attempts to revert back to the pre 17th Amendment method of electing US Senators. Right wingnut kookburgers have been complaining about direct election of US Senators for at least as long as I have been paying attention. I don’t know what their hang up is other than they don’t like to let the populace make their voice heard, even if it’s through the filter of a duly elected governor.

  4. grudznick 2016-02-08 12:32

    Elitists indeed. Each of the legislatures who vote aye for this should be castigated and then voted out followed by a public shaming.

  5. Lanny V Stricherz 2016-02-08 14:14

    Cory, How is the institution of a corporate income tax to then be used for property tax relief, better than HB1182 which they snuck into committee hearing today without notice, when the whole works goes for property tax relief and nothing for teacher pay?

    I imagine by next session there will be a bill in the hopper to take us back to the founding of the country and have it that the only ones who can vote are people who own or are buying their own home.

    This property tax relief on every measure that comes up has got to stop. And before you comment Grudz, screw you.

  6. Mark Winegar 2016-02-08 16:12

    I could support Senate Joint Resolutions 2 & 3 but that’s it out of this group.

  7. caheidelberger Post author | 2016-02-08 23:15

    Ror, Nick, the Senate replacement provisions seem so absurdly marginal, dealing only with vacancies… who came up with this idea? I wondered if maybe HJR 1001 and SJR 4 were just temper tantrums, ways to try taking some trivial power away from the Governor just to make him mad and get back at hime for all these Democratic positions he’s taking (increase teacher pay, expand Medicaid, oppose drug-testing for welfare recipients…).

  8. Nick Nemec 2016-02-09 08:02

    Are the dead enders so mad at the Governor they are introducing legislation to nibble at his rarely used authority? In all likelihood Daugaard, like nearly all SD governors, will never have the opportunity to appoint a US Senator. If they really want to do something have vacancies filled by special election, just as the US Constitution requires for vacancies in the House of Representatives.

  9. Don Coyote 2016-02-09 09:40

    “I invite readers to tell me whether that wording makes any substantive difference in the courts or whether the only practical effect of this amendment would be to increase ballot length and sustain certain members’ NRA ratings.”

    Where “denied” is an outright prohibition of a right, “infringement” is an undermining of that right. Take for example allowing a person to own a gun but not allowing him/her to purchase ammunition for it.

  10. larry kurtz 2016-02-09 09:46

    Pick a lane, Don. Take for example allowing a person to grow medicine but not allowing that person to purchase seeds or clones.

  11. caheidelberger Post author | 2016-02-09 10:22

    Incorrect, Don. You like text, so you should know that the text, “I have a right to own a gun” does not mean, “I have a right to buy ammo.”

    But if I accept your loose wording on guns and ammo, then why should I accept your tight distinction of “deny” and “infringe”? Infringing on my right to own a gun by denying me the right to buy ammo effectively denies me the use of the gun entailed in that right to own it, doesn’t it? Isn’t an infringement a denial? Why when I can make that argument, which is no looser than yours, do I need to write extra word into the constitution to achieve any different practical effect? My question stands: what practical effect does SJR 1 have?

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