Legal Analysis: HJR 5003 Subject to Referendum

Dakotans for Health, led by Rick Weiland of Sioux Falls, is circulating an initiative petition to put Medicaid expansion on South Dakotans’ 2022 general election ballot. Republican legislators, led by crafty Senate President Pro-Tem Lee Schoenbeck of Watertown, are monkey-wrenching that initiative drive with House Joint Resolution 5003, a Legislative action calling for a statewide vote to coincide with the June 2022 primary election on amending the South Dakota Constitution to raise the votes Dakotans for Health must win to enact Medicaid expansion from simple majority to 60%, an increase of more than 30,000 votes. Dakotans for Health sought to refer that Republican sabotage to a public vote in the November 2022 general election, not only to protect its Medicaid expansion measure from a new supermajority requirement but also to move that anti-democratic amendment from the 2022 primary, when its fate would be decided by the small cadre of diehard Republican primary voters, to the general election, when perhaps a couple hundred thousand more South Dakotans are likely to add their voices to this momentous decision. Secretary of State Steve Barnett refused to approve Weiland’s proposed referendum petition for circulation; Weiland promptly asked the South Dakota Supreme Court to permit Dakotans for Health to conduct this referendum petition drive.

Traditionally, referendum petitions can start circulating on Veto Day, which this year was March 29. Referrers have until Monday, June 28, to collect 16,961 signatures. By forcing this issue to the courts instead of doing his plain and limited ministerial duty, Secretary Barnett has already denied Dakotans for Health nearly a quarter of the time they have available for the difficult task of referring HJR 5003 to a general election vote. We now wait for the Supreme Court to assess the arguments and reverse or uphold Secretary Barnett’s cogly facilitation of the SDGOP machine’s stifling of citizen participation.

Now if you’d have told me a month ago that someone was going to try referring a resolution, I’d have said, “You can’t do that. Referendum applies only to laws, not resolutions.” But hold that thought: read the opening brief from Dakotans for Health filed March 22, the state’s response filed April 6, and the complainants’ reply filed April 9, and see who you think is making the better argument:

1. Dakotans for Health, opening brief, 2021.03.22:

2. State of South Dakota, response, 2021.04.06:

3. Dakotans for Health, reply, 2021.04.09:

The core constitutional clause in question comes from Article 3, Section 1, in which the South Dakota Constitution provides for citizen referendum: “[T]he people expressly reserve to themselves the right… to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect….” Secretary Barnett declined to approve circulation of the referral petition because Secretary Barnett believes HJR 5003 is not a “law” subject to referral.

In its opening brief, Dakotans for Health says HJR 5003 is a law. The resolution requires that a statewide vote take place. HJR 5003 is an action of Legislature, not merely an expression of its opinion; it has the force of law, thus is a law, and thus is subject to referral.

In its reply, the State maintains that “law” and “resolution” are distinct and disjoint; if the Constitution meant for citizens to be able to refer joint resolutions, it would have said “any laws or joint resolutions….” The state also contends that HJR 5003 “does not have a readily ascertainble effective date” and thus prevents from putting an effective date on a referendum petition, as required by SDCL 2-1-3.1.

But the definitions and authorities the state cites undermine the state’s own argument.

First, the state contends that “A ‘law’ creates a binding rule that must be observed, but a ‘resolution’ expresses only an opinion of an elected body.” HJR 5003 doesn’t simply express an opinion. It does not say, “It sure would be groovy if the Constitution had a supermajority requirement for passing Medicaid expansion and other spending initiatives.” HJR 5003 creates a binding rule: the Secretary of State has to make and distribute ballots, and county auditors need to conduct a special election and count ballots.

The state drives further into the mud by noting the Legislature’s special definition of “joint resolution” in its own Joint Rules:

A joint resolution contains matters of legislation only. A joint resolution may be used to refer a matter for referendum to the people, to place a constitutional amendment on the ballot at the next general election, to ratify proposed amendments to the United States Constitution, to enact legislative reapportionment, or to grant a water right pursuant to § 46-5-20.1 [South Dakota Legislature, Joint Rule 6A-1 (3), adopted 2021.01.15].

(Pause and note that the Legislature’s own rules say that joint resolutions may place constitutional amendments on the ballot at the next general election, which seems to invalidate HJR 5003’s drive to put the supermajority amendment on the ballot at the next primary election.)

As the Legislature itself recognizes, joint resolutions go beyond expressing opinions. Joint resolutions make things happen. They have the force of law. Worse for the state’s argument, the state admits that the South Dakota Supreme Court has held that at least one of the actions which joint resolutions may take, Legislative reapportionment, is subject to referral. That fact destroys the state’s argument that the mere distinction between “law” and “joint resolution” shields HJR 5003 from referendum.

Dakotans for Health in its reply to the state goes to town on exactly that point:

…Third, the State says that because one of the five subjects for which joint resolution legislation is authorized (to ratify proposed amendments to the United States Constitution) probably may not be referred, and a second subject (granting a water right) possibly may not be referred, HJR 5003 may not be referred. But the State torpedoes its own argument with its admission that a third subject (a joint resolution on legislative apportionment) “carries the force of law” and is referable. State’s Brief at 7. So the State concedes that even if some joint resolutions are not referable, others are. HJR 5003, because it is legislation, is referable [Dakotans for Health, reply brief, Dakotans for Health v. Steve Barnett, 2021.04.09, p. 5].

The state tries to shield Barnett from reversal by claiming that HJR 5003 has no discernible effective date. Here the state ignores one of the most obvious elements of legislation in South Dakota: if an act of the Legislature does not specify a date effective, the act takes effect on July 1 after their passage (see SDCL 2-14-16)… unless, of course, the people of South Dakota refer it to a public vote at the next general election. Dakotans for Health notes that the Legislature itself stamped “An Act” at the top of the enrolled version of HJR 5003, so this Act must effect July 1. “Any other conclusion,” says the reply brief, “would mean that the Legislature could evade the referral process simply by failing to specify an effective date.”

Dakotans for Health does admit in its reply brief an error on its part. Its original referendum petition listed HJR 5003’s effective date as March 9. “This technical error can be corrected,” says the reply brief; however, “Secretary Barnett is responsible for it[s] not having already been amended, because he erroneously advised DFM that HJR 5003 has no effective date. In light [of] the technical nature of the error, its simple fix by amendment, and Secretary Barnett’s mis-advice, the incorrect effective date cannot defeat the people’s constitutionally protected right of referral, any more than a gnat can outweigh an elephant.”

What can outweigh Lee Schoenbeck’s elephant is the force of law. HJR 5003, calling a special election on a constitutional amendment, is an act of the Legislature with the force of law. The South Dakota Constitution, South Dakota law, the Legislature’s Joint Rules, and the definitions the state itself cites in its brief say South Dakota’s voters have a right to pause acts of the Legislature  and refer them to a public vote at the next general election.

So yes, in this case, you can refer a resolution. Referendum applies to laws, and House Joint Resolution 5003 is a law.