South Dakota voters are supposed to vote this June on Amendment C, a proposal from Republican legislators to require a 60% yes vote to enact any ballot measure that imposes or raises taxes or requires the expenditure of at least $10 million in state general funds in any of the first five years after enactment. Yesterday David Owen and James Holbeck of Sioux Falls filed a complaint in the Second Judicial Circuit of South Dakota in which they ask the court to declare Amendment C unconstitutional under the recent single-subject rule, enjoin Minnehaha County Auditor Ben Kyte from submitting Amendment C to voters in the June election, and enjoin Secretary of State Steven Barnett from placing Amendment C on the statewide ballot or adding Amendment C to the state constitution.
The complaint, filed by attorneys Brendan Johnson and Tim Billion, hues closely to the argument laid out simply in yesterday’s press release from Johnson’s law firm Robins & Kaplan: Amendment C encompasses multiple subjects—a “taxation supermajority requirement” and a “spending supermajority requirement”—and thus violates Article 23 Section 1 (Amendment Z, approved by voters in 2018) of the South Dakota Constitution, which says that “no proposed amendment may embrace more than one subject.” The complaint argues that neither plank of Amendment C “is necessary to the other” and that in combining the two, the Legislature “engaged in a classic example of logrolling” that denies Owen and Holbeck their constitutional right to vote on these two measures separately.
Yesterday, Amendment C sponsor Representative Jon Hansen (R-25/Dell Rapids) took a nasty personal shot at state Chamber of Commerce exec Owen’s professional standing in the business community for “trying to block a measure that protects businesses from higher taxes and big government spending.” But if Hansen had paused to read the complaint, he’d have seen that Owen’s desire to vote on Amendment C’s multiple subjects separately arises not only from his desire to protect constitutional rights but also from his commitment to the Chamber’s mission to support business:
Mr. Owen has an extensive background in policies that impact business development. He may support a supermajority requirement for tax increases, but is unlikely to support a supermajority requirement for spending initiatives because such a rule could hamper or eliminate important development opportunities [Brendan Johnson and Tim Billion, Complaint, Owen Holbeck v. Barnett and Kyte, 2022.01.18, p. 7].
Holbeck, former superintendent of Harrisburg schools and now staffer for the Associated School Boards of South Dakota, expresses a similar concern that the spending supermajority requirement could harm the interests he has spent his career promoting:
Mr. Holbeck believes in the importance of education. While he may support a supermajority requirement for tax increases, he is reluctant to vote in favor of a supermajority requirement for spending because it could jeopardize education-related initiatives and reforms. He is also concerned that the language of the spending supermajority requirement in Amendment C could lead to confusion about whether education-related initiatives trigger the spending supermajority requirement [Complaint, 2022.01.18, p. 7].
To support their argument that taxing and spending are separate subjects that the Constitution demands we vote on separately, the plaintiffs point to sponsor testimony in support of 2021 House Joint Resolution 5003, the measure the Legislature enacted to place Amendment C on this June’s ballot. During the Senate State Affairs hearing on HJR 5003 on March 1, 2021, committee member Senator Troy Heinert (D-26/Mission) asked prime sponsor Rep. Jon Hansen if the 60% vote threshold would have prevented 2020’s Amendment A, which won 54% of the vote, from passing. Instead of answering the question with a simple, “Yes,” lawyer Hansen went off topic to discuss the single-subject rule:
One of the potential downfalls of Constitutional Amendment A was all of the subjects that were included in it, from legalizing to spending to taxing to recreational to medicinal to hemp [Rep. Jon Hansen, testimony to Senate State Affairs on 2021 HJR 5003, 2021.03.01, transcribed from SDPB audio, timestamp 44:58].
Just yesterday, when confronted with this lawsuit against his Amendment C, lawyer and lawmaker Hansen said taxing and spending are “inseparable.” But ten months ago, Hansen himself separated taxing and spending to justify the court’s rejection of Amendment A.
I thought lawyers were supposed to have a better sense of when to keep their mouths shut.
If Hansen’s self-contradiction alone doesn’t win the case for the plaintiffs, the complaint cites the state constitution’s separation of supermajority requirements for taxing and spending measures:
Legislators supporting HJR 5003 compared that resolution to the existing supermajority requirements for legislative tax increases and spending. Those two different subjects are found in two different sections of the Constitution. Article XI, section 14 of the Constitution imposes a two-thirds supermajority requirement on the legislature to impose a new tax (although it clearly states that no supermajority is required if the people vote to increase taxes via an initiative). By contrast, Article XII, section 2 of the Constitution authorizes the passage of the general appropriation bill by a simple majority, but requires that other appropriations be made in separate bills, embracing a single subject, with a two-thirds majority [Complaint, 2022.01.18, pp. 8–9].
The plaintiffs further note that the Attorney General himself appears to recognize that Amendment C embraces at least two subjects, because his official ballot explanation provides separate paragraphs explaining the taxation supermajority requirement and the spending supermajority requirement.
The plaintiffs thus contend that the Attorney General, the state constitution, and the sponsor of Amendment C himself, attorney and legislator Jon Hansen, all support their argument that Amendment C embraces more than one subject, violates Article 23 Section 1 of the South Dakota Constitution, and would thus deny Owen, Holbeck, and all South Dakota voters of their right to vote on separate proposals separately if placed on the June ballot.