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Think Big, Freedom Fighters: Call a South Dakota Constitutional Convention

Want to stop the anti-transgender nonsense in Pierre? Call a Constitutional Convention.

My thoughts on the matter of calling a Constitutional Convention started not with the follies of our Legislature again caging transgender South Dakotans with their recycled bullying and baiting about birth certificates and women’s sports but with the Governor’s and the Legislature’s tandem effort to kill the cannabis initiatives South Dakotans passed last fall.

Governor Kristi Noem got a court to overturn Amendment A, the constitutionalization of marijuana in South Dakota, by paying her lawyer lots of taxpayer dollars to convince a judge that Amendment A included multiple subjects. If that ruling stands, restoring Amendment A would require that cannabis advocates create multiple petitions to place each distinguishable subject of the original amendment on the ballot as a separate issue. They’d then have to hope voters would approve every one of those amendments and not leave out any crucial portion of the package that could hamstring the effective and comprehensive regulation and taxation of cannabis products in South Dakota.

But even such a complicated and expensive multi-petition restoration effort would be subject to the same nefarious legal attacks made possible by the complicated restrictions the one-party monolith has imposed on the people’s right of initiative and referendum. To really protect a new marijuana amendment, supporters need to reform the initiative and referendum process. They need to repeal the new, unnecessary, and infinitely malleable single-subject rule from the South Dakota Constitution. They need to repeal the raft of restrictions (the newest: 14-point font, arbitrary judicial review by the Secretary of State) that the Legislature has used to stymie initiative and referendum. They need to enact new constitutional provisions insulating voter-approved initiatives from Legislative meddling and repeal. Each of those reforms would require its own separate petition drive (an omnibus reform initiative will get struck down on the single-subject rule as surely as did Amendment A), and there are practical limits to how many petitions one circulator can carry… not to mention limits to the number of petitions you can get everyday voters to sign in normal passing interactions on a street corner or at a State Fair booth.

Besides, the folks supporting Amendment A and Initiated Measure 26, the companion measure focused on medical marijuana that the Governor and Legislature are also trying to throttle, didn’t sign on to work on initiative and referendum reform; they vocalize and mobilize around the very concrete issue of being able to smoke pot, not the far more esoteric issues of petition fonts and legal explanations of ballot measures. I could say the same of every issue-oriented group fighting for liberty and justice for all in this state: folks fighting for transgender rights, abortion rights, access to affordable health care, fair elections, environmental protection, education funding, and all the other good things our Governor and Legislature are out to destroy are fighting for very specific, easily explainable issues. They aren’t election nerds. They don’t want to work up a sweat learning about and explaining the intricate details of initiative and referendum.

But none of those groups will be able to protect the things they are fighting for if they don’t have access to initiative and referendum, the last, best avenue for challenging an entrenched one-party regime who read the state motto in passive voice instead of active voice (“Under God, the people are ruled“).

So how do we bring together every group in this state that’s fighting for justice to protect their issues and protect the process that supports their fight without having to circulate one hundred petitions this summer? (Math digression: 100 petitions, half initiated laws, half amendments… that would take at least two million signatures, maybe four signatures from each registered voter in the state.)

How about we call a Constitutional Convention? How about we create the opportunity for every justice-minded group in this state to gather one summer and revise our state Constitution to protect the rights our Legislature is hell-bent on denying?

Here’s what that would take, according to the rough sketch our Founders gave us in Article 23 Section 2:

  1. This spring, summer, and fall, every group circulating an initiative or referendum petition also carries one other petition, a call for a Constitutional Convention. Every other freedom-loving group (transgender advocates, education advocates, reproductive rights advocates…) also collects signatures for the convention call.
  2. If the coalition of freedom-lovers collects and submits 33,921 voter signatures by November 8, a call to convention goes on the November 2022 ballot.
  3. The freedom coalition campaigns like crazy in 2022 to get everyone to vote for the convention call.
  4. If a majority of voters approve the call, we get to hold another election, for convention delegates. There will be 70 convention delegates, two elected from each Legislative district on a nonpartisan ballot (i.e., no party labels!).
  5. The freedom coalition recruits and promotes reliable freedom-loving delegates committed to going to convention and doing the people’s work, not the work of the gun lobby or the theocrats or secessionists or ALEC.
  6. If the freedom coalition wins a majority of those delegate seats, those delegates go to convention (in summer 2023, we hope!) and revise the heck out of the South Dakota Constitution:
    1. Restore Amendment A.
    2. Write LGBT protections into our Bill of Rights (and, while we’re at it, strike the gender-exclusive language).
    3. Lock independent redistricting, ranked-choice voting, and nonpartisan ballots into the Constitution.
    4. Explicitly declare women’s reproductive rights part of a broader right to health care unencumbered by Legislative meddling.
    5. Clarify the state’s obligation to fund public education, not private education.
    6. Reform initiative and referendum.
  7. Send that revised constitution to the voters in a special election in November 2023.

I know, a Constitutional Convention is complicated. But it’s no more complicated than the ongoing fight cannabis advocates will have to wage with multiple petitions and court cases. It’s arguably a shorter and emotionally less-taxing calendar of campaigning than transgender advocates face now as they must truck to Pierre every Legislative Session to fight the same nonsense from Fred Deutsch and the other potty-panickers who seem to revel in subjecting transgender youths to continual emotional abuse in the public spotlight. Bring diverse groups together to put their eggs in the Constitutional basket, and we could permanently hamstring the Legislature’s ability to thwart the will of the people.

We haven’t tried a Constitutional Convention as a means for achieving greater liberty and justice in our state since we became a state. But considering the grave threats posed to liberty by our overreaching, elitist, verging-on-monarchical one-party regime, maybe it’s worth a shot.

12 Comments

  1. Richard Schriever 2021-03-08

    Over-thinking – complexity. Again – write simple, unambiguous, easy-to understand initiatives and amendments – a sentence or two. Get them on the ballot. Refer undesirable laws and constitutional elements in the same manner. KISS.

  2. Bob Newland 2021-03-08

    “If a majority of voters approve the call, we get to hold another election, for convention delegates. There will be 70 convention delegates, two elected from each Legislative district on a nonpartisan ballot (i.e., no party labels!).”

    This looks like an invitation to the Taliban to rewrite the SoDak Constitution, regardless of the “party labels'” absence.

  3. Jim peterson 2021-03-08

    Be very careful what you ask for, once the convention is called you might be very surprised what topics it takes up, can’t limit it to one issue we were always told

  4. buckobear 2021-03-08

    Fully agree with Jim and Bob, not a good idea.

  5. Richard Schriever 2021-03-08

    Precisely – the inhabitants of SD today are NOT a bunch of good hearted German, Norwegian, Dutch, Dane and English settlers who are intent to JOIN the exceptional union and promote the general welfare of ALL citizens of the state (territory). They are NOT informed by a history of experiences in a world run by despots and tyrants as those immigrants were. They have NOT seen their lives and livelihoods “appropriated” in furtherance of a monarch’s territorial ambitions. They are NOT like my ancestors, who seeing where the newly created nation of Germany (1870) was headed – pacifists escaping from military conscription by the newly empowered Kaiser. They did NOT sell everything they owned to set out to an unknown land, and and unknown set of neighbors, with a live and help live attitude. They are a bunch of 4 and 5 generation down-the-road connivers who IMAGINE they are being trampled on by an imaginarily oppressive government, taxed to death; mostly ill informed, insular, and suspicious. They will NOT “improve” the constitution any more to what their representatives in our legislature are intent on improving life for their neighbors as is. The Aylwards, Castleberrys, Johnsons, and all the rest of your most nut-casey wingers will – with supporting funding by the likes of ALEC – turn the state into an “experiment” in right winginess’s most wingy approaches to “governance”.

    Be careful indeed.

  6. Richard Schriever 2021-03-08

    Diving into complexity and minutia is EXACTLY where the right wants to keep the minds of the left occupied. Example: FONT SIZE as a SERIOUS governmental issue? Yeah, let’s get ’em to waste their energy on THAT.

  7. Cory Allen Heidelberger Post author | 2021-03-08

    The hard thing is, Richard, we have to look at those minutiae, because those minutiae have an enormous impact on the initiative and referendum process. But the cost of tackling those minutiae one by one via initiative and referendum is also enormous and inefficient. Thus, I propose we address all those minutiae in one feel swoop with a properly conceived Constitutional Convention.

  8. Cory Allen Heidelberger Post author | 2021-03-08

    Bob, Jim, Buck, I agree that calling a convention is darned risky. I’ve opposed calling an Article V national convention for exactly the reasons you lay out: the American Taliban and ALEC could co-opt the process and destroy our liberties.

    I am willing to entertain a convention at the state level, however, because it seems we progressives have little to lose and the radical right have little to gain. Consider: the radical right wing can already have its way with us in the Legislature. Fred Deutsch can bully the LGBT folks, Al Novstrup and Jon Hansen can whittle the initiative process down to a useless nub, the NRA can get guns in the Capitol, and ALEC can get all the corporate props it wants. Our state government is already mostly captured by the forces of evil, and our state constitution isn’t stopping them. The only victories I’ve scored against the radical Right, beating the out-of-state-money ban and the circulator registry and badges in court, were based on readings of the United States Constitution, not the South Dakota Constitution. So the bad guys here can’t make things much worse for us by overhauling our state constitution. Any really nasty stuff they might pull in our S.D. Constitution can be thrown out with appeals to the U.S. Constitution.

    By contrast, the protections I talk about putting into a progressive revision of the state constitution would all be in line with the U.S. Constitution, and they would make a huge positive difference in South Dakotans’ lives (or at least I’d work like heck to convince them of that fact). We wouldn’t face the same court challenges, because we’re trying to bring real liberty and justice back to South Dakota.

    The forces of good could thus be more motivated to seize this opportunity than the forces of evil. I’m not saying it would be easy: the bad guys would fight like heck to keep us from doing justice here and conducting a progressive revision of the S.D. Constitution. We’d have to work hard at all five stages: work hard to get the 34K (plus cushion: shoot for 50K) signatures on our petition. We’d have to work hard to convince voters that holding a Convention to revise the Constitution would be good for the state. We’d have to work really hard to win the delegate elections (identify viable and reliable candidates in every Legislative district, make posters for all of them, and get voters to turn out for them everywhere!). We’d have to work hard at convention to cover all the necessary issues, use excruciatingly exact language to achieve our ends and withstand judicial scrutiny, and keep our coalition together and focused on the end goals of liberty and not get bogged down in minutiae (or at least not the wrong minutiae). And we’d have to work hard to campaign statewide to get people to vote for our revision.

    But what we’re doing now isn’t working. Opposition is not sustainable via the usual tools in this one-party regime. The transgender advocates have been busing out to Pierre for how many years, thinking they are building relationships and support, only to see the Senate yank the rug out from under them today with their approval of a smoked-out bill and to see Governor Noem rub it in every liberal’s face with a crass Newspeakful perversion of International Women’s Day? How many years can we pass comprehensive, meaningful reforms by initiative, only to see the Legislature repeal them? How many laws can I take to court one by one, only to see the Legislature come right back and pass a modified version to dare someone to take them to court again?

  9. Arlo Blundt 2021-03-08

    well…as Thomas Aquinas observed “Beware of your prayers, they may be answered.”

  10. Super Sweet 2021-03-08

    As per arguments re recall, it might be easier to elect Democrats. Or move a cemetery.

  11. Richard Schriever 2021-03-09

    Cory – thus one needs to consider the degree to which an initiative or amendment has a GREAT effect on self-governance, vs, minutiae, again, again, again, ….. ad infinitum. GO BIG. Take total control over the process. Prohibit the insertion of the minutiae altogether. ONE simple concise amendment REMOVES those dabblers in the minute from the process – totally – forever.

    Get it? Ignore the minute buzzing decoys. Eliminate those littering the atmosphere with them from the process. THEN, one can deal with the minutiae. Get this in the right order. You can’t build a square and plumb foundation by starting in the center of a wall. You need to lay up corner first.

  12. Richard Schriever 2021-03-09

    Cory “…..the American Taliban and ALEC could co-opt the process.” And you think it would be more difficult for those same actors to do the same in SD? Please.

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