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SB 86 Gives Secretary of State Judicial Power to Preëmptively Declare Amendments Unconstitutional, Block Public Vote

Senator Lee Schoenbeck and rookie Representative Will Mortenson join this year’s cycle of the Republican war on people power with Senate Bill 86, which appears to be not just a response to but a codification of Governor Kristi Noem’s lawsuit against Amendment A.

Senate Bill 86 amends two statutes and creates two new statutes to give the Republican machine another way to prevent citizen petitions from ever making the ballot. In its core provision (Section 3), SB 86 empowers the Secretary of State to reject any proposed initiated amendment that appears to embrace more than one subject and/or broadly revise rather than narrowly amend the South Dakota Constitution.

The Secretary of State’s office generally operates in a ministerial fashion, certifying documents but not legally analyzing them. Such analysis is left to the courts when summoned by contentious parties. Senate Bill 86 declares the Secretary of State, who is not required to have a law degree or any other degree, who really just needs to be the next sub-Republican-poobah in line for musical chairs, to be an expert on constitutional law and authorizes that one official, without trial or due process, to render a judicial decision that stops citizens from petitioning to amend their constitution.

99% of South Dakotans won’t know what SB 86 is talking about. The 1% who get it should find this expansion of the Secretary of State’s power breathtaking. Right now the Secretary of State cannot kill petitions. The Secretary of State can only determine that a petition includes certain objective flaws—insufficient signatures from registered voters, missing signer and circulator information, expired notary seals—that, by law and by rule, prevent him from validating the petition and placing the candidate or measure on the ballot. Prior to circulation, the Secretary of State may notice that the proposed initiated amendment petition doesn’t include the instructions to signers or that it omits a line from the Attorney General’s explanation and advise the sponsors that he can’t approve the petition for circulation until those clerical errors are fixed. But SB 86 allows the Secretary of State to refuse to approve a petition for circulation based solely on the Secretary’s opinion.

I’m not using the nihilist relativism of Schoenbeck and Mortenson’s party to say there is no objective truth. I’m saying there is an enormous difference between saying a petition is missing specific text or doesn’t have enough signatures and saying that you interpret the legal definitions of “single subject” and “amendment” differently from how the sponsors and their lawyers interpret them. Nothing in Senate Bill 86 or anywhere else in statute defines either “single subject” or “revision.” Nothing in SB 86 sets criteria that must be met for the Secretary of State to commit an act as drastic as stopping a petition drive cold. SB 86 mentions that the Legislative Research Council adds its opinion on whether proposed amendments comply with the single-subject and amendment-not-revision requirements, but SB 86 does not bind the Secretary’s decision to the LRC’s opinion…

…not that such a binding would help, because the LRC can’t render binding legal analysis, either. The LRC, the Attorney General, the Secretary of State, and every other member of the Legislative and Executive Branches can all holler that a proposed amendment somehow violates the Constitution, but their hollering means nothing; only the Judicial Branch gets to determine violations of the Constitution, and until such a violation is judicially established, the Secretary of State has no business usurping that judicial power to block citizens from circulating a petition that, in the Secretary’s opinion, contains provisions that may violate the Constitution.

Senate Bill 86 does engage the judiciary in Section 4, providing that aggrieved sponsors of rejected proposals get fifteen days after the Secretary’s judicial ruling to appeal directly to the South Dakota Supreme Court. (Great: I’m raising money, recruiting volunteers, printing petitions and handouts, and now, on the legal whim of the Secretary of State, I have to turn on a dime and compose an effective appeal to the Supreme Court in two weeks. Thanks, Lee.) SB 86 leaves it up to the Supreme Court to make rules for handling such appeals, so if the Secretary rejects my proposed petition in February and I get my appeal to the Court in March, the Court may rule by April, meaning I only lose two months from my planned eight-month petition drive, or the Court may take months (consider that, right now, a circuit court is hearing arguments about the single-subject and amendment-not-revision rules received the first filings in November, is holding a first hearing this week, at the end of January) and, even if I prevail in court, the Secretary’s arbitrary rejection of my petition chops my signature-gathering time from eight months to two.

Instead of gambling on a court appeal, sponsors might face no greater loss if they simply take the Secretary’s opinion as gospel and revise their proposal into separate petitions with narrower subjects. Of course, such changes would require the sponsors to go back to step one of the petition process, submitting new drafts to the LRC, then the Attorney General, for a review process that can take up to 75 days.

The most likely outcome, of course, is that grassroots petitioners with big ideas but small campaign finance accounts will look at the uncertainty SB 86 introduces into the process, see the prospect of a partisan Secretary of State arbitrarily refusing to allow their petition to circulate and delaying their drive, and decide not to bother trying…

…which, of course, is the ultimate goal of Senate Bill 86 and every other proposal Republicans have offered over the past several years to complicate and curtail citizens’ exercise of their Constitutional right to amend their Constitution.

The funny thing is, Republicans like Schoenbeck and Mortenson keep telling us we need to restrain government and trust the people to exercise their liberty responsibly. Yet as shown by Senate Bill 86, Republicans keep forgetting that the initiative process is inherently self-correcting: if someone proposes an initiative that tackles too many subjects or makes too broad a change to how we govern ourselves, and if voters think such action is bad for South Dakota, the voters won’t vote for that initiative. The problem solves itself without government action! What a perfectly conservative solution!

But instead of following conservative principles and trusting the people, the Republicans want to give one government official the power to stifle the expression of the people’s will with his solitary opinion.

*     *     *

In smaller technical details, Senate Bill 86 applies only to amendments proposed by citizens, not amendments proposed by legislators. In fairness, if Senator Schoenbeck and Representative Mortenson feel the Secretary possesses the wisdom to act judicially against amendments citizens wish to initiate, should they not also empower the Secretary of State to unilaterally refuse a place on the ballot for Legislatively proposed amendments that appear to violate the Constitution?

I should, perhaps, be careful about asking Schoenbeck and Mortenson for consistency. As written, SB 86 allows the Secretary to block only petitions for proposed amendments, not petitions for proposed initiative laws, and it allows such blockage of amendments only on constitutional concerns about the single-subject and amendment-not-revision rules. Schoenbeck and Mortenson could get tough and say, “You bet we believe the Secretary of State should act as a judge! So heck yeah, let’s let him render binding, petition-stopping opinions on every initiative petition, whether for an amendment or a law, for any hint of any violation of any constitutional provision!”

The LRC shows a possible amendment from Schoenbeck to tack an emergency clause onto SB 86. Giving the Secretary of State that power immediately upon passage of SB 86 this winter instead of waiting until July 1 would prevent South Dakotans from referring this gross violation of the separation powers to a public vote. It could also empower the Secretary of State the power to block the pending amendment petitions for open primaries and independent redistricting as well as the hospitals’ copycat petition for Medicaid expansion. SB 86 could not be applied retroactively to the currently circulating Medicaid expansion petition. Nor could it impact the lawsuit over Amendment A, which the voters approved last year and whose constitutionality will be properly decided by the courts.

13 Comments

  1. o 2021-01-24

    Would this also mean that if the Sec. of State gives it the OK, then it becomes above challenge later (on those grounds)? Does he or she become the sole arbiter of what meets or does not meet these criteria?

  2. grudznick 2021-01-24

    This is an interesting law bill. Did you know the laws don’t make the State Secretary be actually any degree at all but the laws don’t make the Attorney General be a lawyer either? That’s just insaner than all get out.

    grudznick approves of this law bill.

  3. M 2021-01-25

    Sounds like another Trumpian thing to do. What’s with these idiots in Pierre? How the hell does this bill improve the lives of South Dakotans in the middle of a pandemic? Oh that’s right, the GOP is in denial.

    The South Dakota Democratic Party needs to get it together and run people against these sad and pathetic apers of a giant orangutan.

  4. Buckobear 2021-01-25

    Ain’t one-party gubbmint great?

  5. Donald Pay 2021-01-25

    Well, it’s unconstitutional in so many ways. It will be laughed out of court in a nanosecond.

  6. Cory Allen Heidelberger Post author | 2021-01-25

    O, no, the SOS’s judicial pronouncement in favor of a proposed initiative would not stop independent challenges to the petition or the voter-approved amendment.

  7. Cory Allen Heidelberger Post author | 2021-01-25

    Donald, I’m looking forward to Secretary Barnett himself going to testify against this bill. I’ll hope he’ll tell Schoenbeck and Senate State Affairs that he does not want, is not equipped by training, and is not allowed by the constitution of his office to act in such a judicial fashion.

  8. Cory Allen Heidelberger Post author | 2021-01-25

    Of course, if SB 86 does pass, it will become all the more imperative that we elect a Secretary of State who is keenly interested in, knowledgeable of, and committed to protecting the initiative process.

  9. robin friday 2021-01-25

    Wayyyyy too much power to invest in one bureaucrat.

  10. RST Tribal Member from 57572 2021-01-25

    Yep, would work just find for the 1 party governance. Might backfire if another party accidentally gets control of that lever.

  11. robin friday 2021-01-25

    I could have sworn the First Amendment prohibited the government from abridging citizens’ rights “to petition the government for redress of grievances”.

  12. robin friday 2021-01-25

    The Petition Clause protects the right “to petition the government for a redress of grievances”.[120] The right expanded over the years: “It is no longer confined to demands for ‘a redress of grievances’, in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters.”[318] The right to petition the government for a redress of grievances therefore includes the right to communicate with government officials, lobbying government officials and petitioning the courts by filing lawsuits with a legal basis.[295] The Petition Clause first came to prominence in the 1830s, when Congress established the gag rule barring anti-slavery petitions from being heard; the rule was overturned by Congress several years later. Wikipedia

  13. 96Tears 2021-01-28

    Can legislation undermine the constitutional right of voters to amend the state constitution by giving super powers to the Secretary of State to declare a proposal politically unacceptable to the party in power and abolishing the petition?

    Don’t think so.

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