Bob Mercer reports that Ravnsborg’s office claims it did not miss a statutory May deadline to produce its official ballot statement for Amendment C, née 2021 House Joint Resolution 5003. Team Ravnsborg claims that Ravnsborg is just waiting until November 2 so he can test out the new comment period the Legislature is implementing in the initiative process:
His chief of staff says state Attorney General Jason Ravnsborg plans to wait until November to issue an official statement on the effect of voting for or against proposed Constitutional Amendment C that will be on the ballot in South Dakota’s June 2022 primary election.
Tim Bormann told KELOLAND News on Monday that the attorney general wants to see how a new law functions after it takes effect November 1. It will require a 10-day public-comment period before the attorney general issues the final version of the official statement.
…Secretary of State Steve Barnett validated the resolution March 9. Bormann said Ravnsborg didn’t miss the deadline in state law that requires, in the case of a constitutional amendment proposed by the Legislature, that the attorney general’s statement must be submitted before the third Tuesday in May.
“It has been our office position that this would be the third Tuesday in May of the year in which the election will be held,” Bormann said [Bob Mercer, “Chief of Staff Says Ravnsborg Didn’t Miss Deadline on Explanation for Ballot Measure,” KELO-TV, 2021.09.27].
The Attorney General’s “office position” on the May deadline is dubious at best. The Attorney General’s application of the ten-day public comment period to a Legislatively proposed constitutional amendment is flat wrong.
The third-Tuesday-in-May deadline to which Bormann refers is in SDCL 12-13-9:
Before the third Tuesday in May, the attorney general shall deliver to the secretary of state an attorney general’s statement for each amendment to the Constitution proposed by the Legislature, and any referred law from an odd year. The attorney general’s statement for each referred law from an even year shall be delivered to the secretary of state before the second Tuesday in July. The attorney general’s statement shall be written by the attorney general and shall consist of a title, an explanation, and a recitation as provided in this section. The title shall be a concise statement of the subject of the proposed amendment to the Constitution or referred law. The explanation shall be an objective, clear, and simple summary to educate the voters of the purpose and effect of the proposed amendment to the Constitution or referred law. The recitation for each proposed amendment to the Constitution shall state “Vote ‘Yes’ to adopt the amendment” and “Vote ‘No’ to leave the Constitution as it is”. The recitation for each referred law shall state “Vote ‘Yes’ to allow the Act of the Legislature to become law” and “Vote ‘No’ to reject the Act of the Legislature”. The attorney general shall include a description of the legal consequences of the proposed amendment to the Constitution or referred law, including the likely exposure of the state to liability if the proposed amendment to the Constitution or referred law is adopted. The explanation may not exceed two hundred words in length. On the printed ballots, the title shall be followed by the explanation and the explanation shall be followed, if applicable, by any cost estimate prepared pursuant to § 2-9-34 or fiscal note prepared pursuant to § 2-9-32 and then followed by the recitation [emphasis mine; SDCL 12-13-9, last amended 2018].
This statute makes clear that the purpose of this statute is to educate the voters. It places the statement on the printed ballot. It thus assumes that any amendment proposed by the Legislature would go on the general election ballot in November; if the Legislature could place a constitutional amendment on the primary ballot in June, an attorney general issuing a statement on May 17 would miss the deadline for printing primary ballots by over a month. Early voting would have begun four weeks before that statement was available, leaving many voters without the education statute demands.
Furthermore, SDCL 12-13-9.2 gives citizens seven days to challenge the A.G.’s ballot statement and requires the court to rule on that challenge within fifteen days after the challenge is filed. Again, statute intends that citizens have time to get the A.G.’s statement in their hands and into court well before voting begins. Statute thus appears to assume that all ballot measures go to the general election in November, making the third Tuesday of May of the year of the general election a perfectly reasonable deadline for the A.G.’s official statement.
But contrary to that assumption and the Legislature’s own Joint Rules, the 2021 Legislature placed Amendment C on the June 2022 primary ballot (technically, on a special election ballot to be voted on cotemporaneously with the 2022 primary ballot, but hey! we’re slogging through enough election technicalities already, right?). Thus, reading SDCL 12-13-9’s May deadline to mean the A.G. could delay release of his ballot statement until after ballots are printed and handed to voters would thwart the intention of SDCL 12-13-9. We can’t read laws to produce such absurd results.
But we can’t also read the clear language of the law to mean “whenever the Attorney General feels like it.” The statute says “third Tuesday in May.” It does not distinguish amendments proposed by the Legislature in odd years (like Amendment C) from amendments proposed by the Legislature in even years. (SDCL 12-13-9 sensibly makes that distinction for referred laws but not for Legislative amendments.) If Legislative amendments had to go on the general election ballot, then “third Tuesday in May of the year of the general election” would work fine, but Amendment C’s Legislative backers have decided they can put their amendments to a vote whenever they feel like it. We thus have to make the May deadline work as written, and it does not tie the May deadline to the election year. Here, May means May of the year the amendment is proposed, not the year after that. Attorney General Ravnsborg should have issued his explanation of Amendment C back in May 2021. Instead, he was so distracted fighting criminal charges and impeachment and seeking his Army Reserve promotion and whatever other thumb-twiddling he does that he missed a legal deadline.
To make matters worse, he now tries to cover that dereliction of duty by a complete misapplication of a statute that has nothing to do with Legislatively proposed amendments. The ten-day public comment period Ravnsborg says he’s test-driving (and remember, Jason says if there’s one thing he’s good at, it’s driving) comes from 2021 Senate Bill 123, now enshrined in SDCL 12-13-25.1 and taking effect this November 1. 2021 SB 123 is really just another Republican trick (backed by too many capitulatory Democrats) to further delay the circulation of initiative petitions. It has nothing to do with Legislatively proposed amendments. The public comment period applies only to initiative petitions (amendments or laws) submitted by citizen sponsors seeking approval to circulate petitions to place their measure on the ballot. The public comment required applies to the attorney general’s explanation that has to appear on the petition circulators’ handouts while they petition.
That’s not the document that SDCL 12-13-9 charges Ravnsborg to produce by the third Tuesday in May. Both SDCL 12-13-9 and SDCL 12-13-25.1 refer separately to the “recitation” that the attorney general must produce for every ballot measure, whether it originates from the people or the Legislature. 2021 SB 123 did not require or authorize the attorney general to take any public comment on ballot recitations.
There is no public comment period for the recitation of Amendment C that he was supposed to produce last May. Jason Ravnsborg, supposedly South Dakota’s top lawyer, is reading the law wrong.