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SB 86 Could Allow Secretary of State to Stop Redistricting Petition

Just yesterday, the A.G.’s statement for the independent redistricting initiative popped up on the Secretary of State’s website. The letter is dated and stamped received February 26, 2021… but if sponsors couldn’t see it until yesterday, that’s five good days the sponsors weren’t able to submit their final petition and supporting documents and start circulating. Grrrr….

Amidst the general turmoil surrounding their boss’s so far unpunished killing of Joe Boever, the Attorney General’s office staff managed to produce a reasonably objective restatement of the redistricting amendment:

Title: An initiated amendment to the South Dakota Constitution providing for state legislative redistricting by a commission.

Explanation: Article III, section 5, of the state Constitution currently requires the Legislature to establish legislative districts every ten years. This amendment removes that authority from the Legislature and grants it to a redistricting commission consisting of nine registered voters selected by the State Board of Elections. The commission will redistrict in 2023, 2031, and every ten years thereafter.

Under the amendment, a commission member must have the same party registration, or be registered as unaffiliated with a party, for three continuous years immediately prior to appointment. No more than three commission members may belong to the same political party.

Commission members may not hold certain state or local public offices, nor hold office in a political party organization. This restriction applies for three years immediately prior to appointment to the commission, and three years immediately after appointment.

The commission must make a draft redistricting map and report available for public inspection, and must accept written comments and hold public hearings. The commission will then establish final legislative district boundaries in a manner consistent with the amendment’s requirements.

Any person purposefully violating any portion of this section would be guilty of fraud [South Dakota Attorney General’s Office, ballot question statement, 2021.02.26].

Sponsors may wish to hurry their submission to the Secretary of State. On Tuesday, the House gave final approval to Senate Bill 86, Senator Lee Schoenbeck’s wild idea of turning the Secretary of State into a member of the Judicial Branch. If the Governor signs SB 86, with its emergency clause, before the redistricting sponsors submit their initiative petition, the Secretary of State will have the authority under SB 86 to reject the initiative petition and make the sponsors start over if he decides to accuse them of covering more than one subject with their amendment or of trying to revise rather than simply amend the South Dakota Constitution.

One would think “redistricting” is a single subject, but as we saw with Judge Christine Klinger’s fatal interpretation of Amendment A, the concept of a single subject is infinitely malleable.

And the Attorney General’s explanation of the redistricting amendment points to grounds the Secretary could use to deem independent redistricting a constitutional revision. Recall that Judge Klinger deemed Amendment A a revision, not an amendment, because it took power away from the Legislature and granted that power to another branch of government. The Attorney General notes that the redistricting proposal “removes that authority from the Legislature and grants it to a redistricting commission….”

You can see where this is headed: the Secretary of State could read a few words about transfer of Legislative power in the Amendment A ruling, read similar words in the A.G.’s explanation, and conclude in his newly authorized judicial musings, “Good heavens! A revision!” and throw the petition back at the sponsors, uncirculatable and delayed for at least two and a half more months.

Work fast, sponsors… and be ready to lawyer up!

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