Hospitals Submit Medicaid Expansion Amendment Petition; Dakotans for Health Switches to Initiated Law Petition Drive

According to the Secretary of State’s ballot question website, only one initiative petition was submitted yesterday, the Medicaid expansion amendment sponsored by the big hospitals and their South Dakotans Decide Healthcare coalition. If Secretary of State Steve Barnett calculates from his statistical sample that the hospital lobby has submitted at least 33, 921 valid signatures from registered South Dakota voters, this amendment will appear on the November 2022 general election ballot.

SDDH started circulating its petition in July; Dakotans for Health, the grassroots ballot question committee whose amendment and campaign the hospital lobby largely copied, started circulating petitions last November. Dakotans for Health did not submit its initiated amendment petition yesterday. Dakotans for Health chairman Rick Weiland says his group has “decided to unite behind” the SDDH amendment so that there will be only one constitutional amendment pertaining to Medicaid on the ballot. However, Weiland still wants to see two Medicaid initiatives on the ballot:

“The last thing we need is to have two proposed constitutional amendments on the November 2022 ballot,” Weiland said. “We will continue petitioning for our initiated law giving voters the opportunity to pass both an amendment to the state’s constitution and a law next year” [Rick Weiland, Dakotans for Health, press release, in Todd Epp, “Dakotans for Health Will Continue to Collect Signatures for Medicaid Expansion,” KELO Radio, 2021.11.08].

Weiland can launch his initiated-law petition drive immediately, since he filed his Medicaid expansion proposal in two forms, amendment and law, last year and has simply kept that initiated law petition on the shelf. The initiated law petition requires only 16,961 signatures, and, thanks my so-far-so-good litigation, Weiland and anyone else who’d like to launch an initiated law petition drive has six more months to collect signatures, until May 3, 2022. Alas, they can’t use any of the signatures they collected on their initiated amendment petition, so they have to shred all of those petition sheets and get their volunteers and paid circulators to hit the streets again with new sheets with the initiated law wording.

The completely separate nature of the amendment and law petitions has a good side: if you signed either amendment petition, whether Weiland’s or the hospitals, you can freely sign Weiland’s freshly launched initiated law petition.

But wait a minute: if the last thing we need is two amendments on the same issue on the same ballot, isn’t the second-to-last thing we need two initiatives on the same issue on the same ballot?

Hold your democratic apples and oranges—Dakotans for Health may have two good reasons for launching its drive to place an initiated law for Medicaid expansion on the November 2022 ballot.

First, we have no guarantee that the hospital lobby’s amendment will make the ballot. Secretary Barnett has to count the signatures first. In 2019, he needed over a month and a half to validate  the IM 26 medical marijuana petition. We may not know until Christmas whether the hospital lobby’s circulators did their jobs right and got 33,921 valid signatures.

Even if Secretary Barnett validates the SDDH petition, SDDH could still withdraw its petition. David Benson of the American Cancer Society is the named chairman of SDDH, but the big power behind this petition drive is the South Dakota Association of Healthcare Organizations. SDAHO’s president is Tim Rave, a fixture of the SDGOP good old boys club. It is possible that SDAHO staged its initiative drive not to have us all vote on Medicaid expansion but to arm itself with a big bargaining chip as it heads into the 2022 Legislative Session. SDAHO can now march into the Capitol lobby and say to legislators, “Look, we know you hate Medicaid expansion. If you work with us to craft some compromise deal that gives us hospitals more funding but still lets you say you’ve kept Obamacare out of South Dakota, we’ll pull the Medicaid expansion amendment from the ballot. But if you don’t work with us, we’ll keep Medicaid expansion on the ballot, and we’ll spend a crap-ton of money to bring out pro-expansion voters who also might get the idea that they should vote for more sensible legislators.”

SDDH can withdraw its petition through July 11, 120 days before the general election (see SDCL 2-1-2.2). SDDH could lobby hard this winter in Pierre, extract some satisfactory compromise from legislators made nervous by the threat of more democracy and Obamacare, and then come July 1, once the compromise is enacted, pull its petition, leaving us with no chance to vote for the really good policy of full Medicaid expansion under the Affordable Care Act.

Thus, Weiland’s initiated law version of Medicaid expansion can serve as a Plan B in case the hospital lobby either fouled up its signature collection or uses its ballot measure merely for lobbying leverage in Pierre and withdraws the petition once it gets what it wants from the Legislature.

Second, an initiated law might have a better chance of passing with the voters than a constitutional amendment. Republicans are already throwing anti-democracy Amendment C at Medicaid expansion; whether or not they trick us next June into sacrificing our democratic rights and requiring a 60% vote to pass major fiscal measures, they will throw everything else they can think of against expanding Medicaid in November. Enacting Medicaid expansion as a constitutional amendment offers additional arguments for opponents:

1. Constitutional amendments are harder to fix. If we need to change the Medicaid income thresholds, we’ll have to amend the Constitution, which will require a whole nother statewide vote. An initiated law can be fixed by the Legislature more quickly.
2. The Constitution should lay broad principles of governance. Specific policies like Medicaid expansion belong in statute, not the Constitution.

The former argument is a bigger deal than the latter, but if either gets traction, there could be a significant percentage of voters who would vote for Medicaid expansion as a law but would vote against writing Medicaid expansion into the Constitution. In a close race with rich Republicans spending lots of money on negative ads, the Dakotans for Health initiated law could squeak past 50% or 60% while the South Dakotans Decide Healthcare amendment would not.

By submitting its initiated amendment petition, the hospital lobby has signaled it is confident it has enough signatures to place Medicaid expansion on next November’s ballot. But Dakotans for Health still sees good reason to keep a second Medicaid petition alive to ensure that voters get their say on this valuable policy change next November.