Z+A = Dead C? Lawsuit Says Amendment C Violates Single-Subject Rule

Last updated on 2022-01-19

Last year, our Republican Governor and Republican-appointed judges killed Amendment A, the legalization of marijuana that voters approved in 2020, on the argument that it dealt with more than one subject and thus violated Amendment Z, the single-subject rule that Republican legislators placed on the ballot and which voters approved in 2018.

David Owen and Jim Holbeck of are now asking South Dakota’s Second Circuit Court to take a gander at what those silly Republican geese are doing with Amendment C. According a lawsuit the two men filed today, Amendment C, which proposes to require ballot questions that spend at least $10 million in any of their first five years of enactment or impose or increase any taxes or fees to receive a 60% vote rather than a simple majority to pass, encompasses more than one subject:

…Amendment C contains two distinct subjects. It imposes a supermajority requirement on citizen initiatives that raise taxes and a supermajority requirement on citizen initiatives that appropriate money. Not all new appropriations require increasing taxes, so the two subjects are not linked.

Clearly, some voters may support a 60% win threshold on initiatives that raise taxes, but not a 60% win threshold for new appropriations. Those voters, and the plaintiffs in this suit, have a constitutional right to consider distinct issues separately [David Owen and Jim Holbeck, press release, posted by Robins & Kaplan Law, 2022.01.18].

Attentive readers know that I reject the single-subject rule as an infinitely malleable standard that any word-gaming lawyer can use to kill any ballot question. The single-subject rule thus unnecessarily and unfairly restricts core political speech and the scope of measures that citizens can bring to a public vote. But the plaintiffs embrace it:

South Dakota has a long, proud, bipartisan history of making their voices heard through our initiative process. Unfortunately, Amendment C silences our voice and fundamentally undermines the one issue, one vote principle of our ballot measure process – it forces us to vote on the two distinct subjects contained in this single measure at the same time. We have a constitutional right to vote on them separately. Since our state’s founding, voters have passed and amended laws by majority rule, guided by the idea of voting on one issue at a time. In 2018, the people of South Dakota reiterated our approval of the single-subject principle by explicitly adding it to our constitution. Overwhelmingly, South Dakotans said they did not want to be forced to vote for multiple policies in one measure, but that’s exactly what Amendment C does. We hope the courts will agree [Owen and Holbeck, 2022.01.18]

Last winter, South Dakota’s Attorney General couldn’t convince a judge that marijuana and hemp are the same thing. How will the Attorney General convince any judge that $10 million of money spent on public goods and services is the same thing as any amount of taxes collected at any time on private sales, property, and income?

Owen and Holbeck say they are challenging Amendment C as individuals, not on behalf of any other organization. But Amendment C sponsor Rep. Jon Hansen (R-25/Dell Rapids) quickly invokes Owen’s day job as executive director of the South Dakota Chamber of Commerce and Industry to try personally intimidating Owen:

And while Owen is not suing on behalf of the chamber organization he works for, Hansen said it’s disheartening one of the state’s leading pro-business advocates would attempt to stand in the way of a policy aimed at protecting taxpayers.

“I hope the word goes out far and wide to all the Chamber of Commerce members that their president is trying to block a measure that protects businesses from higher taxes and big government spending,” he said. “I remember the day when the chambers used to be for lower taxes on businesses, but now they mostly focus on killing conservative legislation” [Joe Sneve, “Lawmakers’ Proposed Three-Fifths Rule on Spending, Tax Initiatives Headed to Court,” Sioux Falls Argus Leader, 2022.01.18].

David Owen is a fixture of South Dakota’s good-old-boys’ club. But Owen challenges just this one facet of the good old boys’ agenda, and Hansen immediately tries to get Owen kicked out the club and threatens Owen’s job. Such is the bitter personal warfare the SDGOP wages to keep everyone in the party line. (Jim Holbeck must be wondering when Hansen will start threatening his position with the Associated School Boards.)

This legal challenge has more connection to Amendment A than citation of fresh precedent. Owen and Holbeck’s lawyer is Amendment A sponsor and chief litigator Brendan Johnson, who teased the lawsuit on Twitter yesterday and announced it today with this statement:

Amendment C is scheduled to be on the primary ballot. The Amendment is designed to diminish the power of voters by restricting their ability to initiate legislation. We believe Amendment C is unconstitutional, and today we filed a lawsuit to stop it [Brendan Johnson, tweet, 2022.01.18].

Johnson’s tweet has drawn numerous positive replies from folks thanking him for challenging the “horrible piece of legislation” known as Amendment C. The problem for Johnson and his plaintiffs is that to defeat the horrible 60% vote threshold, they have to embrace the horrible single-subject rule. Hmmm… I wonder if Johnson’s friends chose not to circulate their petition to repeal the single-subject rule.

Secretary of State Steve Barnett will print ballots for the June election sometime after April 6, the date he draws candidate positions for the primary ballot, and before April 20, the date by which he must have primary election ballots in the hands of county auditors ready for absentee voting to begin on April 22. It took Judge Klinger of the Sixth Circuit 80 days from the first filing in the Amendment A challenge (November 20, 2020) to finally rule Amendment A multiply subjective (February 8, 2021). If the Second Circuit can act with similar alacrity (and they should go faster, since Judge Klinger and the Supreme Court have plowed this ground, thus opening its loamy depths to easy planting of fresh seeds of Johnsonian discontent), it could rule by April 8… just in time to stay the Secretary’s hand from sullying the ballot and oppressing the voters with yet another unconstitutional ballot question.