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Dakotans for Health Suing to Refer HJR 5003 Primary Vote to a General Election Vote

Dakotans for Health is circulating an initiative petition to give South Dakotans the chance to vote on Medicaid expansion in the 2022 general election. To thwart that effort, longtime Medicaid-expansion opponent Senator Lee Schoenbeck (R-5/Watertown) pushed House Joint Resolution 5003, which would have South Dakotans vote at the 2022 primary on amending the Constitution to require that the Medicaid initiative and all future initiatives that would spend or tax significant sums pass by a 60% vote instead of a 50%+1 vote. We usually vote on constitutional amendments at the general election, but Schoenbeck wants the vote on HJR 5003 to happen in June 2022 so it can go into effect on July 1 so it will apply to and reduce the chances of success for Medicaid expansion:

He acknowledged that his expedited push was motivated by the Medicaid expansion campaign, but argued that the vote threshold should apply to all ballot initiatives that levy taxes or spend significant state funds. The Legislature must pass a high threshold — a two-thirds majority — for similar bills [Stephen Groves, “Lawmakers Push 60% Vote Threshold on Tax Ballot Measures,” AP via KOTA-TV, 2021.03.05].

Dakotans for Health has posted to its website an announcement that it wants to refer HJR 5003 itself to a public vote but that Secretary of State Steve Barnett is preventing them from doing so:

Dakotans for Health submitted a HJR 5003 referral petition to the state on March 11th which was rejected by the Secretary of State and is challenging that decision in the South Dakota Supreme Court [Dakotans for Health, “Medicaid Expansion Petition Sponsor Files Against Secretary of State,” media advisory, 2021.03.21].

The Secretary of State’s ballot question webpage says nothing about this proposed and rejected referendum. Dakotans for Health says it will give more details this afternoon, 2 p.m. Central, on a Zoom press conference.

Now I’ve had people ask me if we can refer resolutions to a vote, and I’ve said, “No, we can’t, because resolutions aren’t laws; they don’t do anything.”

But HJR 5003 does something: it places a measure on a statewide ballot and gives us (and by “us”, Lee Schoenbeck means arch-conservative Republican primary voters) a chance to amend our Constitution. It hasn’t gone into effect yet—primary voting doesn’t start for another thirteen months—so HJR 5003 is arguably an intended action of the Legislature that the people could halt with a petition and put to a vote. Blog legal experts, chew on that one!

But remember: HJR 5003 is not the constitutional amendment itself; it’s just the call for a public vote on a Legislatively proposed amendment. So a referral of HJR 5003 would be saying, “Wait! We want to vote on whether we want to vote!” And since referrals usually go to a vote at the next general election, we’d be voting in November 2022 on whether we want to vote on the 60% rule “at the next primary election,” which would be in June 2024.

This lawsuit should be interesting… but we’ll have to wait until this afternoon to get the details.


  1. SD is 20 per cent nonwhite 2021-03-22 12:20

    According to KITV Honolulu, there were only 5 Hawaiians in an ICU hospital for Covid 19.

    Argus Leader says 14 South Dakotans were in intensive care bed at hospital Monday March 22.

    So it’s 2.8x times worse in SD compared to Hawaii, or 280% worse!

    This is a contrast between a state that votes consistently 60 to 65 % Democratic (real Democratic, not cave in vote bipartisan and have no principles Democratic) and a state that is 60-65% red.

    Americans in both states. One state is 2.8x deadlier. Red-publican policies lead to more Covid sickness and death.

    Medicaid expansion is a step in the right direction.

    We’re going to have to go Full Australian, New Zealand and Canadian to get to 100% coverage.

    Hawaii has a top income tax of 11%.

    Full health coverage and maybe a top income tax bracket of 4% ($200K and above income)
    would be needed. Also, take the sales tax off of food and clothing.

    Noem’s Hooverism is dangerous for our health. Cover everyone. We can do what Australia does.

  2. Donald Pay 2021-03-22 14:26

    The Legislature in general has the power to decide when a vote occurs on any measure they propose. I suppose someone could challenge it, based on civil rights or voting rights. What they could do is initiate a Constitutional Amendment that retroactively nullify or neuter the amendment in HJR 5003.

  3. Donald Pay 2021-03-22 15:33

    In his dissent in Wyatt v. Kundert, Justice Wuest makes some interesting arguments with cited cases that maybe the Legislature can’t schedule special elections, but this would not be a special election.

  4. Cory Allen Heidelberger Post author | 2021-03-23 05:51

    Donald, petition sponsor and DFH chief Rick Weiland hints at the civil rights/voting rights argument in his statement: “Placing a constitutional amendment on a primary ballot when only a third of registered voters cast ballots, that would require Medicaid expansion to pass in the general election by 60%, is nothing more than a cynical attempt to take from South Dakotans their traditional right to enact measures such as Medicaid expansion by a simple majority.” Weiland’s attorney, our friend Jim Leach, mentions the lower voter participation in primaries in the petition to the court; however, the legal brief does not pursue that argument. The brief focuses on the two issues the Secretary of State cited to justify refusing to approve this petition: whether HJR 5003 is a law and is thus referrable, and whether HJR 5003 has an effective date that can be placed on the referendum petition.

    The special election argument is worth considering. I would disagree, Donald, on whether HJR 5003 calls a special election. It must: a primary election cannot involve a vote of all voters on something other than a choice of candidates. HJR 5003 thus calls for a special election to be held on the same day as a primary election. We did something similar in 2004 when we had to replace Janklow in Congress: Herseth and Diedrich couldn’t appear on a primary ballot, so they appeared on a special election ballot that everyone could show up and vote on on the same day as the primary election.

    But Wuest’s dissent appears not to have rung any bells against that 2004 concurrent special election, nor against the 2018 concurrent special election on Amendment Y.

    Again, note the irony here: Schoenbeck is arguing that he wants more people to have to vote to make changes to the Constitution that he doesn’t like, but he wants the vote on the change he wants to take place on a primary election day on which fewer people will show up to vote.

  5. Donald Pay 2021-03-24 09:45

    Under an originalist interpretation of the Initiative and Referendum Constitutional Amendment you would have to conclude that the Legislature and the voters understood that the vote on ballot measures would occur at the General Election, not the Primary Election. There was no statewide Primary when the I&R Amendment was approved in 1898.

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