In their misfiled, mislabeled “election contest,” the chosen tools of Governor Kristi Noem‘s effort to overturn Amendment A, the marijuana legalization that the voters and the law charge her with upholding, Pennington County Sheriff Kevin Thom and Highway Patrol Colonel Rick Miller contend that Amendment A was illegally submitted to the voters because it encompasses more than one subject and because it adds a new article to the South Dakota Constitution.
I anticipated the former argument, but the latter surprises me. I thus want to turn my analysis first to this novel argument, that initiative petitions may only proposes changes to existing constitutional language, within existing articles, while the addition of new articles to the constitution must originate in a constitutional convention.
But remember: the judge has no grounds to access any of these legal arguments in the plaintiffs’ complaint as currently filed, because the plaintiffs have erroneously filed an election contest, which must revolve around irregularities in the election process, not in flaws in the ballot question. To access the following arguments, the plaintiffs will need to refile their complaint as an actual constitutional challenge to Amendment A.
Let’s let the plaintiffs—or, really, their lawyers Bob Morris and Matt McCaulley, because I suspect neither Sheriff Thom nor Trooper Miller have much daily, practical experience with or understanding of the laws surrounding initiative petitions and constitutional amendments—explain their argument that Amendment A is really a revision of the South Dakota Constitution and not an amendment:
19. Article XXIII of the South Dakota Constitution provides that the Constitution may be changed by (1) amendments or (2) revisions. The South Dakota Constitution makes a substantive distinction between “amendments” and “revisions,” and it sets forther an entirely separate procedure for adopting each type of constitutional change.
20. Purported revisions or amendments that fail to adhere to the procedures for ratification as set forth in the Constitution are void and of no effect.
21. Amendments to the Constitution may be proposed either by initiative or by the Legislature. Article XXIII, § 1 of the Constitution describes the requirements that must be met for a constitutional change to qualify as an “amendment.” It states that a “proposed amendment may amend one of more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject.”
22. While an amendment can be used to change existing articles of the Constitution, it cannot be used to adopt an entirely new article, effectuate broad changes to the Constitution, or make changes that address entirely new subjects not encompassed within pre-existing articles.
23. Only a proposed amendment that meets the requirements of Article XXIII, § 1 can be submitted to the South Dakota electorate for ratification.
24. Constitutional changes that do not qualify as “amendments” may be “revisions” to the Constitution. Because revisions involve more comprehensive changes to the Constitution that often have obscure implications, Article XXIII, § 2 imposes a more stringent procedure for presenting them to the public for a vote. This procedure, which is both public and transparent, is designed to ensure that revisions are properly scrutinized and the integrity of the Constitution is preserved [links added; Kevin Thom and Rick Miller, “Election Contest: Verified Complaint, In the Matter of Election Contest as to Amendment A, an Amendment to the South Dakota Constitution to Legalize, Regulate, and Tax Marijuana; and to Require the Legislature to Pass Laws Regarding Hemp as Well as Laws Ensuring Access to Marijuana for Medical Use,” Sixth Judicial Circuit, filed 2020.11.20].
Hang on; let me catch my breath. I can’t read Kristi Noem’s favorite lobbyist, Matt McCaulley, expounding on transparency and integrity without doubling over in laughter. Or maybe it’s nausea. Breathe… breathe….
25. While an amendment may be proposed by initiative through a petition signed by the requisite number of qualified voters, a revision cannot be adopted unless it is approved by members of a constitutional convention in accordance with Article XXIII, § 2 of the Constitution.
26. Specifically, Article XXIII, § 2 states that a convention to “revise” the Constitution may be called by “a three-fourths vote of all the members of each house,” or it may be “initiated and submitted to the voters in the same manner as an an amendment.” Once a constitutional convention has been called, its members must be elected “on a nonpolitical ballot in the same districts and in the same number as the house of representatives.” Article XXIII, § 2. The elected members of the constitutional convention must then approve proposed revisions “by a majority” before the proposed revision can be “submitted to the electorate at a special election in a manner to be determined by the convention.” Article XXIII, § 2.
…33. Because Amendment A was a revision to the Constitution submitted in violation of Article XXIII, Amendment A could not have been initiated and submitted to the voters when it bypassed the constitutionally required convention. Proponents of Amendment A failed to follow the proper constitutional procedure and deprived South Dakota voters of the opportunity to have a substantial revision to the Constitution properly scrutinized and presented for ratification. Therefore, the election as to Amendment A is a nullity and did not result in a free and fair expression of the will of the voters [Thom and Miller, 2020.11.20].
Again, you can ignore the recitation of the “free and fair expression of the will of the voters.” By the logic expressed above, it doesn’t matter if 54.2% or 100% of South Dakotans freely and fairly voted for Amendment A. As a revision adding a new article to the Constitution rather than an amendment merely changing language within an existing article, Amendment A improperly gained access to the ballot, circumvented the necessary constitutional convention process, and must be thrown out.
2016 Amendment S, “Marsy’s Law,” added an entirely new and lengthy section to Article VI, the South Dakota Constitution’s Bill of Rights. 2016 Amendment U, the payday lenders’ fake and failed 18% rate cap, proposed two new sections under Article VI. Both accessed the ballot via initiative petition. Neither faced any complaints about being revisions that added entirely new language to the Constitution. The Thom/Miller complaint would excuse those amendments because they add mere sections to existing articles.
But consider 2006 Amendment C, which outlawed same-sex marriages, civil unions, and other quasi-martial relationships. That amendment wrote an entirely new concept into the Constitution, one not germane to any topic of any existing article. Yet the ban on same-sex coupling avoids the Thom/Miller argument by appearing as a new section to Article XXI, which is labeled “Miscellaneous“. Article XXI appears to be the gutpile our founders provided for all the random stuff we might think to put in our Constitution: seal and coat of arms, salaries of constitutional officers, debtors exemptions, rights of married women, hail insurance…. So if the distinction between amendment and revision hinged on whether a proposal is an entirely new article, initiative petitioners could have recast Amendment A as a new section added to the Miscellaneous Article XXI and nullified the plaintiffs’ argument. That feels like a bookkeeper’s dodge, not a substantive difference. I would thus suggest that the complaint that Amendment A is a new article does not win the plaintiffs’ argument alone. The plaintiffs must demonstrate that Amendment A is in substance, not simply in labeling and placement, a massive and holistic revision of the Constitution requiring the scrutiny and vote of a constitutional convention.
The South Dakota Constitution uses the terms amendment and revision separately in Article 23; however, it does not explicitly define those terms. Section 1 gives an examples of what an amendment may and may not do (“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; however, no proposed amendment may embrace more than one subject.”), but neither section tells us how a revision differs.
For that substantive distinction, let’s turn to scholarship on national and state constitutions:
The theory of implicit limits to the amendment power begins from the proposition, stated clearly in 1893,that an amendment should ‘be in harmony with the thing amended, so far at least as concerns its general spirit and purpose. It must not be something so entirely incongruous that, instead of amending and reforming it, it overthrows or revolutionizes it.’ By 1919, the view that the amendment power is constrained, whether or not the constitutional text explicitly restricts its exercise, had become so well-accepted that a paper published in the Harvard Law Review could declare that ‘it may be safely premised that the power to ‘amend’ the Constitution was not intended to include the power to destroy it.’
Whether the premise is indeed safe, today it is a lynchpin in the theory of constitutional change. For Carl Schmitt, an amendment occurs ‘only under the presupposition that the identity and continuity of the constitution as an entirety is preserved.’ An amendment need not necessarily concern only matters of narrow interest; it may of course entail significant consequences for the polity. But according to the conventional theory of constitutional change, in no instance may it ‘offend the spirit or the principles’ of the constitution. An amendment, therefore, may expand, retract, specify or generalize provided that the change ‘preserve[s] the constitution itself.’
A revision, however, threatens to destroy the constitution, as suggested by the three judgments in Belize, the Czech Republic and India. To borrow the metaphor from Jason Mazzone, a revision may be understood with reference to the course on which a ship sets sail: when the ship departs from its course and changes direction in midstream, this alteration in trajectory will take it to a new destination unforeseen by those who commissioned the ship to set sail. Contrast this to a change to the ship itself that, while substantial, nonetheless keeps the ship on its course. According to conventional theory, the former would be a revision and the latter an amendment [Dr. Richard Albert, Associate Professor, Boston College Law School, “Amendment and Revision in the Unmaking of Constitutions,” Boston College Law School: Legal Studies Research Paper Series, revised 2017.08.03].
The cops suing to block Amendment A may feel that legalizing marijuana overthrows and revolutionizes their law-enforcement mindset and the cultural order, but writing marijuana use and taxation into our Constitution does not overthrow or revolutionize the fundamental character and structure of our Constitution or the government it establishes. With Amendment A, we still have absolute religious tolerance and three branches of government. Our Bill of Rights remains intact. We can still start up a new state cement plant. Amendment A does not transform the Constitution as a revision would.
If an amendment may properly occur only within the four corners of the existing constitution, a revision is unhampered by those boundaries and may alter the identity of the constitution, transform the constitution into a new one, and may violate its spirit and foundational principles. A revision, then, need not cohere with the values and operational framework of the existing constitution; it may introduce presidentialism to a parliamentary democracy just as it may replace federalism with unitarism. Or, to use an example from John Rawls, it would amount to a revision of the United States Constitution,not an amendment to it, to repeal the First Amendment, even if constitutional actors relied on the formal procedures of constitutional amendment entrenched in Article V. The First Amendment, Rawls suggested, should be understood as implicitly unamendable because it protects the very foundations of American constitutionalism and entrenches the core of the democratic commitments the Constitution makes. An amendment for Rawls is narrow. It entails only ‘adjust[ing] basic constitutional values to changing political and social circumstances’ and ‘adapt[ing] basic institutions in order to remove weaknesses that come to light in subsequent constitutional practice’ [Albert, 2001.08.03].
As Albert points out, that distinction between amendment and revision is theory, not explicit law in many national constitutions. It does not appear to be explicit in South Dakota’s constitutional practice. Consider the language prescribed by Administrative Rule 5:02:08:09 for petitions for initiated constitutional amendments:
WE, THE UNDERSIGNED qualified voters of the state of South Dakota, petition that the following section or sections and article or articles of the South Dakota Constitution be (repealed) (amended) and that this proposal be submitted to the voters of the state of South Dakota at the general election on November ____, 20____, for their approval or rejection.
That petition language envisions that initiative petitioners may seek to repeal multiple articles of the Constitution by amendment. We could thus petition onto the ballot an amendment to repeal Article 6, the Bill of Rights. The Legislature could place on the ballot an amendment to repeal Article 7, on Elections and Right of Suffrage, and upon our approval place determination of voting rights entirely at the whim of the Legislature. We could circulate a petition to repeal the first 21 Articles of the Constitution and replace them all with one line: “Kristi Noem is in charge.” Such amendments would far more profoundly change the character of the Constitution and our government than the legalization of marijuana, yet the language of South Dakota law suggests that such amendments would indeed be mere amendments, not revisions, and not subject to any constitutional convention.
The plaintiffs cannot appeal strictly to the language of the Constitution or state law, which does not explicitly distinguish amendments from revisions. The plaintiffs have to reach for political theory and case law to argue that Amendment A, the legalization of marijuana, radically restructures the Constitution and government of South Dakota.
Amendment A certainly has interesting policy implications. It creates a new source of revenue for state and local governments, and it may lead to increased social costs (if, if, if legalization leads to increased use). But the same could be said of Deadwood casino gambling, which we’ve written into our Constitution and expanded over the past three decades. Deadwood casinos didn’t reconfigure our system of government; neither will legal, taxed weed.
Amendment A may thus be viewed as an amendment, not a revision, and the plaintiffs’ argument may be viewed as insufficient to overturn the will of the voters.
Related Reading: Various parties challenged California’s 2008 Proposition 8, a ban on same-sex marriage, on amendment/revision grounds, claiming that banning gay marriage so fundamentally altered the California Constitution that it was a revision,not an amendment, and thus had to originate from a constitutional convention. The California Supreme Court disagreed, saying Californians had legally wrought all sorts of changes to vitally important questions via the amendment process. Going beyond amendment to revision requires that “a constitutional measure must make a far reaching change in the fundamental governmental structure or the foundational power of its branches as set forth in the Constitution.”