Republicans have another bill attacking the initiative process in South Dakota. Representative Fred Deutsch (R-4/Florence), with the backing of my neighbor Representative Carl Perry (R-3/Aberdeen) and several other anti-democracy Republicans, has filed House Bill 1062, which would make sponsors of initiated amendments reimburse the Attorney General’s office for the cost of defending initiatives in court.
HB 1062 puts sponsors on the hook for bad initiated amendments only after their passage by the voters, only if a court rules the initiatives “substantially or wholly unconstitutional”, and only if the Attorney General officially notifies sponsors that their measures may violate the Constitution. That notice from the Attorney General would not be the brief tagline regularly applied to the public, 200-word explanation that the AG must provide to sponsors before they circulate their petitions; HB 1062 requires a separate notification, sent to the sponsor prior to the official public explanation, detailing “the potential reasons that [the initiative] may be unconstitutional.”
Producing such a letter is trivial for an Attorney General’s office that wants to sandbag a petition drive for a measure that the state doesn’t like. Making citizens who put legislation to a public vote liable for the court costs the Attorney General incurs in doing his job is just one more way to scare citizens away from proposing initiatives.
House Bill 1062 can’t apply to the sponsors of Amendment A, who are already paying their own lawyer bills to help the Attorney General’s office fight Governor Noem’s lawsuit against their successful initiative. Killer Attorney General Jason Ravnsborg provided his explanation of Amendment A back in August 2019, so he couldn’t have provided the official notification HB 1062 would require. (Interestingly, the AG’s official explanation didn’t actually say Amendment A might be unconstitutional; it just said the cannabis amendment might require “judicial clarification.”)
HB 1062 only deals with amendments, not initiated laws. (Expect some Republican in committee to ask, “Why not?” and propose an amendment to that effect.) In a double standard, HB 1062 only deals with amendments that come from the people, not amendments that the Legislature places on the ballot. Why shouldn’t legislators like Deutsch by personally liable when they propose unconstitutional amendments? Representative Deutsch certainly doesn’t want to extend his thinking to legislators who propose legislation that doesn’t pass constitutional muster. He surely didn’t want Governor Kristi Noem to have to pay the Attorney General’s costs for his feckless defense of her unconstitutional pro-pipeline anti-protest legislation in 2019. Why should regular citizens be subject to any liability for their exercise of legislative power that legislators, the governor, lobbyists, and others who produce bill text do not face?
Had Deutsch put forward some sort of sponsor liability that applied to all initiatives a few years earlier, it would have redounded against one of his fellow anti-initiative elitists, G. Mark Mickelson, who sponsored 2018’s Initiated Measure 24, a ban on out-of-state contributions to ballot question campaigns, which I killed in court as a violation of the First Amendment. Much as I would have enjoyed seeing Mickelson personally pay for his attack on the initiative process, I was satisfied simply to see bad law revoked, Mickelson chastened, and the cost of losing the court case laid on the state in general. Besides, whether or not a court determines an initiative is unconstitutional, it is unfair to make initiative sponsors who act in good faith pay for the unsuccessful and unethical lawyering of the Attorney General.
Representative Deutsch has previously aped his party’s line against popular participation in government via initiative. He, like the rest of his party, doesn’t want us commoners speaking up and intruding on their Club’s power and privilege. HB 1062’s targeting of citizen-initiated measures and not legislatively proposed amendments lays bare Deutsch’s Republican elitism.
If Deutsch and his fellow anti-democrats want to quash initiated amendments, they have plenty of opportunity to do so at the polls. Convince the voters that an initiated amendment is unconstitutional and stop it from ever entering the books. Otherwise, once an amendment is passed, it is everybody’s law, not just the sponsors’ or the proponents’, and its defense is the responsibility of the Attorney General, representing the state as a whole.