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Supreme Court Rejects Referendum Against HJR 5003 Special Election

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.


  1. Caleb 2021-05-06

    According to the US Census Bureau, SD’s 2019 population was 884,659. According to the same source, in 2008, 24% of SD’s population was under 18 years old. If both stats were true today, 672,340 SD citizens could vote if they were registered. $10,000,000 spread across that many people is $14.87 per person.

    I don’t know much about our initiated measure and constitutional amendment track record, but I can’t imagine many would cost that little per voting citizen. Maybe like most adults, my imagination wanes. Or maybe the Republicans know the 60% requirement would dramatically increase their money/media stranglehold on this state. So much for majority rule in our so-called democracy…

    I propose we remind our selves/friends/family/etc every day that the 2022 primary is a huge deal.

  2. Donald Pay 2021-05-06

    I thought this lawsuit would be an uphill slog. Joint Resolutions are not laws. It’s pretty clear that it is within the Legislature’s power to set election dates, even if they are doing it for nefarious purposes. I think it shows that the Legislature is filled with a-holes who will do anything to screw with democracy. Sad, but if you vote for Republicans, this is what you get.

  3. John Dale 2021-05-07

    I’ve been watching closely for the opinion on A.

    Was A designed with a poison pill?

    Because without it, the medical oligopoly will be installed.

    The potential for this outcome is why the same group should not have designed both initiatives.

    It is a perversion of our legal and political system that will do great damage as the legislature spends inordinate time shoring-up against this type of offensive.

    If A survives the courts, it’s worse for the rank-and-file of SD as we’ll see a fascistic cancer of process take-hold in SD government.

    Really, we just needed a declaration that the human right to cannabis growing, use, and distribution shall not be infringed assuming it is carried-out as per existing promulgated agricultural rules.

    What we got was a cash cow that will reduce product quality and enrich manipulative sociopaths.

    I had hoped that CC4L could go defunct.

    But now it appears as though we have even more work to do now than before to achieve some kind of reasonable freedom and fairness in the cannabis market.

    We all know cannabis was lied about for nearly a century. There are a lot of big lies going around lately.


  4. Cory Allen Heidelberger Post author | 2021-05-07

    Well, Caleb, there are a lot of initiatives that don’t require any state expenditures. The payday lending cap didn’t impose any new costs on the state. An independent redistricting commission (currently circulating!) doesn’t create yearly ongoing expenses and wouldn’t cost $10M the once every ten years it operates. The ballot measure reforms I proposed in 2019 were low-cost affairs, requiring maybe five figures for the Secretary of State to put in overtime or acquire some tech to count petition signatures faster.

    But yes, a lot of serious, substantive reforms do cost money. Medicaid expansion requires state outlays—although the data from all the other states that have expanded Medicaid show they come out budget-neutral or actually make money. The minimum wage increase technically cost the state some money, though minimum-wage workers don’t make up a large portion of the state’s workforce. And any plan which citizens propose to responsibly pay for would trigger the HJR 5003 barrier.

    The 60% threshold is an appalling attack on the simple democratic principle of majority rule. I know Lee Schoenbeck will come say that the Legislature has to muster a 2/3 vote for such fiscal measures, so a 3/5 vote by citizens is still a slacker standard, but I’m ready to argue that all of these supermajority requirements, including the filibuster and the Legislature’s fiscal rule, are unnecessary hindrances.

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