LRC Gets Three Drafts of Voter Initiative Protection Amendment

Last updated on 2017-04-13

Here’s a twist: Roxanne Weber and Nicholas Rasmussen of South Dakota Voter Protection did not submit one draft of an initiated constitutional amendment to protect the initiative and referendum process Friday. They submitted three.

The three drafts are similar, so one may guess that perhaps the sponsors are testing which receive the most favorable response from the Legislative Research Council and, if they do the same at the next review level, the Attorney General.

Here are the three versions of the Voter Initiative Protection (VIP) Amendment, followed by the initiative and referendum portion of the Voter Protection and Anti-Corruption (VPAC) Amendment proposed last week by Represent South Dakota:

VIP Draft #1

Section 1: That Article III, Section 1 of the Constitution of the State of South Dakota be amended to read as follows:

Ҥ1. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be. A law enacted by the Legislature that is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions may be referred to a vote of the electors of the state within ninety days of the law going into effect. Any such emergency law shall remain in effect until the law is voted upon by the people. If an emergency law is rejected by a majority vote in a general or special election open to the electors of the state, the law is repealed. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

If a majority of votes cast upon an initiated or a referred measure are affirmative, the measure shall be enacted. An initiated or referred measure which is approved shall become law thirty days after the election. If conflicting measures are approved, the measure receiving the highest number of affirmative votes shall be law. A measure approved by the electors may not be repealed or amended by the Legislature for seven years from its effective date, except by a two-thirds vote of the members elected to each house.

“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. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.”

Section 2: That Article III of the Constitution of the State of South Dakota be amended by adding a new section to read as follows:

The Legislature must refer to a vote of the electors of the state any law effectively changing the number of electors required to submit initiated measures, referred laws, or constitutional amendments to a public vote; the time available for electors to circulate initiative, referendum, or constitutional amendment petitions; the number of electors who must vote to pass an initiated measure, referred law, or constitutional amendment; or the enactment date of measures submitted to a vote of the electors of the state. No law changing the criteria enumerated in this section takes effect until after that law has received a majority vote in a general or special election open to the electors of the state.

Section 3: That Article XXIII, Section 1 of the Constitution of the State of South Dakota be amended to read as follows:

“§1. Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least not more than ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment.”

VIP Draft #2:

Section 1: That Article III, Section 1 of the Constitution of the State of South Dakota be amended to read as follows:

Ҥ1. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be. A law enacted by the Legislature that is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions may be referred to a vote of the electors of the state within ninety days of the law going into effect. Any such emergency law shall remain in effect until the law is voted upon by the people. If an emergency law is rejected by a majority vote in a general or special election open to the electors of the state, the law is repealed. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

If a majority of votes cast upon an initiated or a referred measure are affirmative, the measure shall be enacted. An initiated or referred measure which is approved shall become law thirty days after the election. If conflicting measures are approved, the measure receiving the highest number of affirmative votes shall be law. A measure approved by the electors may not be repealed or amended by the Legislature for seven years from its effective date, except by a two-thirds vote of the members elected to each house.

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. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.”

VIP Draft #3:

Section 1: That Article III, Section 1 of the Constitution of the State of South Dakota be amended to read as follows:

§1. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be. A law enacted by the Legislature that is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions may be referred to a vote of the electors of the state within ninety days of the law going into effect. Any such emergency law shall remain in effect until the law is voted upon by the people. If an emergency law is rejected by a majority vote in a general or special election open to the electors of the state, the law is repealed. If the emergency law repeals or amends an initiated measure, it shall only be enacted by a three-fourths vote of all the members of each house of the Legislature. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

This section shall not be construed so as to deprive the legislature or any member thereof the right to propose any measure. However, the Legislature may repeal or amend an initiated measure only by a two-thirds vote of all the members of each house of the Legislature; the repeal or amendment of the initiated measure will remain in effect until a vote of the electors of the state at the next general or special election. 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. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.

VPAC I&R Provision (Section 3):

Section 3. That Article III, Section 1 of the Constitution of South Dakota be amended to read as follows:

The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and. Such measures, if approved by a simple majority of those voting on the measure, shall become effective sixty days after approval. Legislation or other action that repeals, amends, or otherwise frustrates the effectuation or implementation of any such measure shall not go into effect until submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question.

The people also expressly reserve the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, for which the Legislature shall state specific facts evidencing such necessity.

No law substantively changing the rules, requirements, or criteria governing the initiative or referenda process shall take effect until after that law has been submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

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 measuresan initiated measure approved by the people or a measure referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.

To summarize the main changes of each:

VIP Draft #1:

1. Allow referral of emergency legislation.
2. If referred, emergency legislation remains in effect until and unless majority votes it down.
3. Approved initiatives and referred laws become law 30 days after election.
4. When measures conflict, measure with higher vote total becomes law.
5. For seven years after enactment, initiatives and referred laws can’t be repealed or amended by Legislature without two-thirds vote.
6. Legislature must refer to public vote any measure changing number of signatures, time for circulating petitions, votes required for passage at election, or enactment date of initiatives and referred laws.
7. Change 10% of voters from minimum to maximum signatures required for initiated constitutional amendment petition.

VIP Draft #2:

1. Allow referral of emergency legislation.
2. If referred, emergency legislation remains in effect until majority votes it down.
3. Approved initiatives and referred laws become law 30 days after election.
4. When measures conflict, measure with higher vote total becomes law.
5. For seven years after enactment, initiatives and referred laws can’t be repealed or amended by Legislature without two-thirds vote.

VIP Draft #3:

1. Allow referral of emergency legislation.
2. If referred, emergency legislation remains in effect until majority votes it down.
3. Emergency law repealing or amending initiative requires three-quarters vote of each chamber of Legislature.
4. Initiatives can’t be repealed or amended by Legislature without two-thirds vote.

VPAC I&R Provision:

1. Approved initiatives become law 60 days after election.
2. Action that “repeals, amends, or otherwise frustrates” initiated measure must be referred to public vote and win majority at statewide election.
3. Clarifies that initiative and referendum pass by simple majority vote.
4. Legislature must give facts justifying use of emergency clause on legislation.
5. Any substantive change to initiative and referendum process must be referred to public vote and win majority at statewide election.
6. Clarifies that Governor can’t veto initiatives.

At the moment, I’d prefer VIP #1 or the VPAC provision. Both do more to check the Legislature’s infringement of our rights to initiate and refer laws. Both address enactment date, and both protect signature counts and other criteria that the Legislature could inflate to make the process harder for us to use.

I welcome your analysis of the above drafts to determine which would be best for the initiative and referendum process!