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SD Supreme Court Gives Jackley Easy Win on IM 26 Ballot Explanation

The South Dakota Supreme Court ruled Wednesday in favor of Attorney General Marty Jackley and against the pharmaceutical industry’s effort to throw out the A.G.’s explanation of Initiated Measure 26, the prescription drug price cap.

The court ruled pretty much as I explained they would back in September when the Pharmaceutical Research and Manufacturers of America and their point propagandist in South Dakota, Joni Johnson, filed their dilatory lawsuit against A.G. Jackley’s objective, clear, simple, and thus entirely legal explanation of this ballot question. The plaintiffs wanted the explanation to include their arguments that IM 26 could raise drug prices, cause drug shortages, and endanger the rebates and discounts that the VA gets for drugs. Citing their 2016 rejection of the payday lenders’ challenge to the A.G.’s explanation of the 36% payday loan rate cap, the court said that the plaintiffs’ “suggested effects are facially speculative” and that “the Attorney General is not required to ‘include every practical or possible effect of each initiated measure.’

The plaintiffs fussed mightily over the fact that the Attorney General didn’t mention Section 5, the provision granting the petition sponsors legal standing to defend IM 26 in court if it passes and then faces court challenges. The court said Section 5 isn’t important enough to demand attention in the explanation on the ballot:

Here, section 5 is a contingent, legal-standing provision that is wholly collateral to the proposed measure’s purpose and effect of limiting drug prices. Additionally, legal standing is a litigation issue that affects the personal interests of the proponents rather than the electorate as a whole [South Dakota Supreme Court, opinion, Johnson and PhaRMA v. Jackley, 2018.05.09, p. 9].

The Supreme Court also upheld the lower court ruling that explaining Section 5 would have required more text than would fit under the ballot question explanation’s 200-word limit.

The Secretary of State approved IM 26 for the ballot on April 11. The deadline for challenging that approval was yesterday at 5 p.m., and there’s been no announcement from the Secretary of the receipt of any challenge. The pharmaceutical lobby could still challenge the petition in court, but given their lawyers couldn’t win the argument on the ballot question explanation, perhaps they’ve decided to focus their money now on marketing and misinformation.


  1. Porter Lansing 2018-05-12

    President Trump dropped a campaign promise to allow us to buy lower priced foreign medicine and now says that Canada is blackmailing drug companies to “demand” reasonable price drugs. What a hoot. He’s going to stop this and make sure USA citizens continue pay the highest prices in the world … OR ELSE!!
    ~ YES ON IM 26 ~

  2. Roger Cornelius 2018-05-12


    As predicted on another Dakota Free Press thread about prescription drug prices, Trump indeed dropped the ball and lied.
    Trump’s deception is a “nothing pill”.

  3. Roger Cornelius 2018-05-12

    Trump continues with his destructive healthcare plan by requesting congress cut $7 Billion from the CHIP program that provides coverage for 9 Million American children.

    America First, BeBest, choose one.

  4. Jason 2018-05-12

    Porter and Roger,

    The Federal Government doesn’t have the the right to set private prices. Don’t you guys know about capitalism and US Law?

  5. Jason 2018-05-12

    Trump said:

    In the coming weeks, we will work with Congress to pass legislation that will save Americans even more money at the pharmacy.

    For you people that aren’t very smart, that means open up competition to drive prices down.

    So why do Democrats want to keep drug prices high?

  6. o 2018-05-12

    Jason, you know about history right? The US HAS set price controls in the past. You may argue it is a bad idea, but it is ABSOLUTELY within the ability of the government to do. States may also control prices – such as California and electricity. You are confusing philosophy with law – they are different.

    Competition does not always drive prices down. Price fixing (to keep prices high) can happen among “competing” providers.

    Your comments show a naïveté of not addressing how the real world works in reality verses how your fortune cookie/bumper sticker slogan understanding of markets and regulation work in theory.

  7. mike fom iowa 2018-05-12

    From Time politics-

    In Rose Garden remarks at the White House Friday, Trump called his plan the “most sweeping action in history to lower the price of prescription drugs for the American people.” But it does not include his campaign pledge to use the massive buying power of the government’s Medicare program to directly negotiate lower prices for seniors.

    That idea has long been supported by Democrats but is a non-starter for drugmakers and most Republicans in Congress. Democratic Rep. Lloyd Doggett of Texas dismissed Trump’s plan as “a sugar-coated nothing pill.”

    The administration will pursue a raft of old and new measures intended to improve competition and transparency in the notoriously complex drug pricing system. But most of the measures could take months or years to implement, and none would stop drugmakers from setting sky-high initial prices.

    Jason, why do wingnuts want Americans paying sky high prices and why protect big Pharma?

  8. mike fom iowa 2018-05-12

    Drumpf fools easily gullible sheep like Jason with big promises he never delivers on.

  9. Jason 2018-05-12


    Did you call out Obama for lying about your premium decreasing by $1,500? Were you gullible and believed him?

  10. o 2018-05-12

    Jason, seriously, you want to ply the who lied more game: Trump’s total as of May 1 was 3,001.

  11. jerry 2018-05-12

    How can drug prices go down when they are paying bribes to republican to keep them up?

    “Drug giant Novartis revealed Wednesday that it paid President Donald Trump’s lawyer Michael Cohen $1.2 million for health-care policy consulting work that he proved “unable” to do.

    The company also said it has been questioned by special counsel Robert Mueller’s team about the payments to Cohen.

    NBC News reported later Wednesday that a senior Novartis official said that Cohen reached out shortly after Trump’s election “promising access” to the new administration.”

    So let me get this straight…oh, that would be impossible.

  12. mike fom iowa 2018-05-12

    This post is so not about Obama or anyone else, Jason. Try to stick to the subject at hand.

    My insurance is Medicare. Under Drumpf, my premium went up so much, my 2% cola cost me a couple bucks off my last year’s SS checks. That is a FACT!

  13. Roger Cornelius 2018-05-13

    Jason tell Porter & I that “the federal government does not have the right to set private prices”.
    The obvious question is, if that is true why has Trump ‘promised’ to lower prescription drug prices?

Comments are closed.