The South Dakota Supreme Court has done what Republicans appoint judges to do: uphold Republican election-rigging. Despite remarkably bad lawyering by the Attorney General’s office, the South Dakota Supreme Court has denied Dakotans for Health the opportunity to refer House Joint Resolution 5003 to a vote at the 2022 general election and has upheld the Republican Legislature’s effort to stack the vote on HJR 5003 in its favor by holding that vote in conjunction with the Republican primary in June 2022.
In a unanimous ruling issued today, the Court ruled that HJR 5003 is not a law and thus is not subject to the people’s right to referendum. The Court’s analysis is minimal and superficial. It seems to mistake the subject of HJR 5003—the proposed amendment that would require a 60% majority to approve initiatives proposing new taxes or $10M or more of state expenditures—with the real Legislative action the plaintiffs wished to block via referendum, the conduct of the vote on HJR 5003 at the primary, when the electorate is likely to be only 34% the size of the electorate that would express the broader popular will at the general election. The Court says that, under SDCL 1-1-22, “law” includes “conduct prescribed by the sovereign power,” but then speciously ignores the plain fact that the Legislature, by its resolution, has prescribed the conduct of an election at a specific and unusual date. Instead, the Court appeals to the superficialities of the absence of an enacting clause or gubernatorial signature or veto to avoid the practical reality that HJR 5003 requires by law a special election to take place at a time of a few partisans’ choosing. Citizens deserve a chance to refer that legal requirement, that enactment of sovereign will, that practical law, to a vote, but our Justices prefer to avoid that analysis and defend with thin semantics another Republican ploy to undermine initiative and referendum in South Dakota and nationwide.
But so be it. Our Court’s delay in coming to this unfavorable decision ate up more than a third of the time citizens would ahve had available to collect signatures against the HJR 5003 special election. Even if Dakotans for Health were to consider an appeal to the United States Supreme Court, such action would almost certainly not produce a favorable ruling until well after the June 28 referendum deadline.
Those who oppose the Republicans’ 60% rule for fiscal initiatives thus must settle for the practical action of campaigning like heck next spring and turning out lots of voters to outnumber the Republican primariate and shoot HJR 5003 down.