SB 59 Delays Enactment of Ballot Measures to July 1, Snarls Constitutional Requirements

The South Dakota Republican Party begins this year’s attack on the people’s right to legislate at the ballot with Senate Bill 59, which includes two key provisions:

1. Per co-sponsor Senator R. Blake Curd’s suggestion, SB 59 moves the enactment date for constitutional amendments, initiated laws, and referred laws approved by the voters back over seven months, from mid-November to July 1 of the following year.
2. SB 59 subjects all initiated measures “to the same constitutional requirements that apply to any measure proposed by the Legislature.”

Section 1 is, obviously, a power grab. The Legislature doesn’t want our laws going into effect before they have a chance to tinker with them. Recall that in 2014, we passed Initiated Measure 18, which raised the minimum wage from $7.25 to $8.50. That wage increase took effect on January 1, 2015, before the Legislature convened. Undoing that wage increase was a lot harder for Republicans because thousands of South Dakota were already seeing more money in their pockets. If that wage hike had been delayed to July 1, 2015, David Novstrup’s youth minimum wage would have looked like a smaller increase rather than an actual pay cut. That would have made a difference in rallying the opposition that put that measure on hold, on the ballot, and ultimately in the trash can.

A post-Session enactment date for ballot measures makes it easier for the Legislature to overturn them, because South Dakotans will not have the chance to see those ballot measures in effect before legislators try to take them away. Section 1 thus strengthens the Legislature at the expense of the people.

Section 2 is stranger slop. Initiated measures are already subject to the South Dakota Constitution, as made clear by the ability of 24 Republican legislators to sue for the annulment of Initiated Measure 22 on constitutional grounds. The constitution is the law of the land; we citizens understand that we can’t write initiated laws that override the constitution.

Section 2 appears to create several problems that either weaken citizens’ initiative power or create constitutional snafus:

1. Article 4 Section 4 requires that any bill receive the signature of the Governor. SB 59 thus requires that the Governor approve any initiated measure.
2. Article 4 Section 4 requires that bills be subject to veto by the Governor. SB 59 thus appears to allow the Governor to veto an initiated measure.
3. Article 4 Section 4 grants the Governor line-item veto power. SB 59 thus appears to grant the Governor the power to strike sections of initiatives.
4. Article 4 Section 4 requires that the Legislature reconsider any vetoed bill. SB 59 thus requires the Legislature to take up any initiated measure vetoed by the Governor.
5. Article 4 Section 4 requires that any vetoed bill receiving a two-third vote from each chamber of the Legislature become law. SB 59 thus makes it possible for the Governor and either 24 Representatives or 12 Senators to overturn the will of hundreds of thousands of South Dakotans.
6. Article 3 Section 17 requires that every bill be read twice in the Legislature. SB 59 thus requires the Legislature to include readings of initiated measures before we can vote on them… which conceivably offers an opportunity to use procedural tricks (or deliberate forgetfulness) as a technicality by which to stop initiated measures cold.
7. Article 3 Section 18 requires that every bill receive majority approval from each chamber to become law. SB 59 thus appears to render the people’s vote redundant.
8. Article 3 Section 18 also requires that “the yeas and nays shall be entered” in the Legislative Journal. SB 59 thus could be read to require a roll call vote of all citizens marking ballots for initiated measures.
9. Article 3 Section 22 requires that no law take effect until 90 days after adjournment of the session at which it passed. That requirement makes no sense for initiatives, which are passed by the people, unless we assume that SB 59 intends to make enactment of any initiative contingent on Legislative approval after the election.
10. Article 3 Section 22 requires a two-thirds vote to pass a measure with an emergency clause. SB 59 thus raises the possibility that the state constitution would render SB 59 ‘s absolute July 1 enactment date unconstitutional.
11. Article 3 Section 1 speaks exclusively of submitting measures proposed by the people “to a vote of the electors of the state.” No Governor, no Legislature, nobody else—just the people. The only way we can read our constitution consistently is to conclude that this exclusive reservation of legislative power to the people renders SB 59’s effort to subject initiatives to the Legislature’s procedural and voting requirements invalid.

In short, we should not do Section 1 of Senate Bill 59, but the state constitution says we cannot do Section 2.

Wow—and some of SB 59’s sponsors say IM 22 was poorly drafted?