SB 102: Nesiba Protects Initiatives from Legislative Meddling!

Senator Reynold Nesiba (D-15/Sioux Falls) is doing the people’s work in Pierre. Yesterday he filed two bills, Senate Bill 102 and Senate Bill 112, to strengthen the voters’ ability to make laws and amend their constitution through the initiative process. Let’s look at SB 102 first, as it deals with initiatives, Legislative changes, and when such laws take effect. I’ll cover SB 112, which deals with the petition circulation process, in a separate post.

SB 102 would give initiatives passed by the voters priority over conflicting legislation passed by the Legislature with these two new rules:

• If the Legislature repeals a law that voters have placed on the ballot for amendment, and the voters then approve that initiative amendment of the now-nonexistent law, that initiative vote brings the repealed statute back in the amended form.
• If the voters pass an initiative and then the Legislature tries to amend that language, the measure with the later effective date takes precedence.

The first rule is straightforward: if we put an initiative on the ballot to toughen penalties on PACs that don’t file their campaign finance reports on time and if, before the election, our special-interest-beholden legislators repeal the penalties for campaign finance violations, voter approval of our initiative would bring back those penalty statutes in our amended form.

The second rule appears to be subtler yet more important. The instance that comes to mind is Initiated Measure 22, the Anti-Corruption Act that our special-interest-beholden legislators repealed in 2017 less than three months after we approved it. The Legislature was able to enact that bill with an emergency clause, meaning we had no chance to refer that repeal to a public vote. By giving precedence to the act with the later enactment date, SB 102 ensures that legislators can’t enact a repeal or change to an initiative until after it takes affect on July 1 after the election. That means that any change legislators try to make to a voter-approved initiative right after an election is subject to referendum!

Holy cow—that’s the smartest way I’ve seen that kind of initiative-protection reform done yet!

Now SB 102 does not clearly address conflicts that may arise if the Legislative amends but does not fully repeal a statute that is subject to an upcoming initiative vote.

Suppose, for instance, that citizens place on the ballot an initiative to reduce the state sales tax from 4.5% to 4.0%. South Dakotans have to submit such their petition for such a proposal, with its exact legal language, one year before the general election. Suppose in the intervening Session, the Legislature votes to change the sales tax law, changing the rate from 4.5% to 5.0% but setting the tax on food at 1%. Those Legislative changes would take effect on July 1, before we vote on the initiative. The initiative text would refer to obsolete language, a statute or statutes that do not exist. Voting to change the sales tax rate from 4.5% to 4.0% when the 4.5% rate does not exist is like voting to amend Article 4 Section 2 as follows: “The Governor and lieutenant governor must be Tusken Raiders from Tatooine, have attained the age of twenty-one eighteen years….” Neither Tusken Raiders, Tatooine, nor a 4.5% tax rate post-Legislative action exist; an initiative invoking any such non-existent terms is thus moot.

Neither Senator Nesiba nor I want to put Sand People in the Governor’s office (although they might be an improvement over current management). But we do want to protect initiatives from Legislative sabotage. I would suggest Nesiba amend the portion of SB 102 on repeals to read, “If an initiated measure or initiated amendment to the Constitution approved by the voters at an election amends a statute or constitutional provision that the Legislature has repealed or amended, the initiated measure or initiated amendment to the Constitution shall be given effect over the repeal changes made by the Legislature.”

For clarity and simplicity, we may also safely strike the language about constitutional amendments from SB 102, since the Legislature cannot on its own repeal or change constitutional provisions.

SB 102 can use some tweaks, but it is a great bill for protecting the people’s right to govern from arrogant legislators who give lip service to the state motto and the finger to our actual exercise of initiative.