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

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.

12 Comments

  1. grudznick 2022-01-18

    Two fellows you can never trust, those Messrs. Holbeck and Owen.

  2. DaveFN 2022-01-18

    Cory, you indicate that you reject the single-subject rule. Just curious whether you would or would not also reject a motion for division of the question as allowed under Robert’s Rules of Order.

    https://www.bartleby.com/176/24.html

  3. Ryan 2022-01-18

    this lawsuit is fantastic. it’s a big middle finger dressed up in a suit and tie. very well written.

    funny how when used against the people, the single subject rule is a great protector of our constitution, but when used against The Man, it is a weapon that’s “killing conservative legislation.”

    irony: The Man tries to kill pot with baloney. same baloney used against The Man, exposing nefarious intent to wider audience. had The Man let people get high in peace, no razor thin precedent for single subject rule, no attention on single subject rule, The Man could have squeaked out amendment c under the radar and made expanded medicaid more difficult. new attention almost guarantees expanded medicaid and legal pot at ballot. The Man won the pot battle but hopefully lost both wars. thanks Brendan Johnson.

  4. Porter Lansing 2022-01-18

    Colorado also has a single subject rule however it’s structured a bit more bipartisan.
    ~ In Colorado, each proposed measure must address only one subject. Unlike other states, Colorado’s single-subject rule is closely tied to a measure’s ballot title. If an approved measure encompasses some subject not clearly expressed in its title, only the unexpressed portion of the law is void. If a measure is too broad to be assigned a title that addresses only one subject, the measure cannot be placed on the ballot. However, if rejected, proponents may revise the measure–deadlines are not extended to accommodate these revisions.

    Colorado Constitution, Article V, Section 1, ¶ 5.5

  5. Cory Allen Heidelberger Post author | 2022-01-19

    DaveFN, as chair, I would not reject a motion to divide a question. If I understand it correctly, such a motion exists because Robert permits the body to choose whether it wishes to consider a question in separate parts or address an issue with one integral, comprehensive solution. Robert appears to envision that at times, it may make sense for a body to adopt a motion that carries out multiple related actions. Unlike the single-subject rule, Robert respects the intelligence and will of participants.

  6. Cory Allen Heidelberger Post author | 2022-01-19

    An ancillary hope is that, after winning in court on April 8, Brendan Johnson circulates a petition to run for Governor as an independent. (Partisan petitions are due March 29; indy petitions are due April 26.)

  7. M 2022-01-19

    This single subject rule does seem “simple”. But we now have so many legislators who can’t handle 2 ideas or more at the same time. I bet their mental Venn Diagrams are empty.

    Fair play in sticking to the single subject rule now. It’s the right thing to do.

    Brendan Johnson will make a fine governor. He is intelligent, energetic, eloquent, and everything that our present governor is not.

  8. M 2022-01-19

    I do agree that requiring 60% majority on initiatives for raising taxes AND those that allocate money are two very different issues and should be 2 separate amendments.

  9. Richard Schriever 2022-01-19

    Anther suit could easily be brought asserting that initiated laws, referred laws and constitutional amendments are also 3 different subjects. Any attorney wants to represent my name on that (I’m not the president of some wealthy business interest mind you, just a regular old working citizen) and is good hearted enough to do so anticipating recompense from scoring and easy victory over the obnoxious state legislature, let me know.

  10. O 2022-01-19

    The unconstitutional finding on the marijuana amendment now ought to be the reasoning/standards applied to EVERY application of the Single Subject Rule by all courts moving forward. Just like the marijuana opponents got a favorable ruling by showing that there were multiple subjects in that amendment, that method of interpretation ought to be the challenge for everything moving forward. That is how the rule of law works. The must never be arbitrary decisions not driven by a set of rules or the expectation of compliance and the very core of legitimacy is lost.

    Alternativly, if the Single Subject rule is arbitrary and capricious, then IT needs to be reviewed and rejected.

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