My radar pings sharply when Republicans suggest more revisions to initiative rules and procedures. Republican Representative Tim Goodwin (R-30/Sheridan Lake) tells KELO-TV that, considering the court’s post-election overturning (at the Governor’s behest) of pot-legalizing Amendment A and considering the current litigation over Amendment C, he’d consider offering a bill to require courts to review ballot measures before they are placed on the ballot:
Future legal challenges against Amendment C also concern Republican lawmaker Tim Goodwin. The Rapid City Representative told KELOLAND News something needs to change so ballot measures face a higher legal threshold before making the ballot rather than being challenged after the votes are counted.
“They go to vote and it doesn’t count,” Goodwin said. “They got to wait for a year and a half for what they voted for to be legal or illegal. That’s wrong. That’s not democracy.”
…The state’s single-subject rule puts much of the burden on the court system after voters have voted one way or the other. Goodwin said it’s a recipe to get people upset and not participate in elections.
He said he’d be willing to sponsor a bill to force the court system to make sure ballot measures would be legal or not if enacted.
“This isn’t a partisan issue. This is just realistic, common sense stuff,” Goodwin said. “When people vote for it, their vote counts and it doesn’t go to the courts” [Eric Mayer, “‘That’s Not Democracy’: Lawmaker Concerned About Amendment C Legal Challenges,” KELO-TV, 2022.04.25].
Actually, Representative Goodwin, that is democracy, the way we have structured it. Legislators—and that includes the citizens acting as legislators through the initiative process—are not required to get permission from the courts to pass laws. The Judicial Branch does not actively intervene in the Legislative process; the Judiciary only responds to complaints filed by parties who must prove they are injured by specific products of the Legislative process.
Representative Goodwin, a staunch supporter of Legislative prerogative, can make this remarkable statement in favor of an activist Judiciary only because he views the people’s initiative process as distinct from and inferior to the clubby Legislative process in which he wields his influence. Requiring pre-election court review of initiatives would make it impossible to place initiatives on the ballot in a timely fashion. Consider that final resolution of the Amendment A lawsuit took one year from filing in November 2021 to circuit court ruling in February 2021 to state Supreme Court arguments in April 2021 to final state Supreme Court ruling in November 2021.
Court review of proposed initiatives cannot be a rush job. It cannot be the extraordinarily bad policy Republicans (including Goodwin) enacted in 2021 to give a forgetful Secretary of State extrajudicial power to reject ballot measures on an uninformed whim. Goodwin may think having a vote of the people overturned by the courts is discouraging and anti-democratic, but he would chill democracy even more if he created some pre-election fast track that would deny citizens the opportunity to vote or even petition with less due process than what they enjoy now.
Overturning the will of the voters expressed at the ballot box is a grave action, to be undertaken only when the will of the voters does grave constitutional harm and to be wrought only after thorough due process. To prevent that expression entirely, to block voting or petitioning, requires at least as much due process.
Fourteen measures were proposed for the 2022 ballot. To review each measure with the same diligence South Dakota’s courts gave Amendment A would require fourteen years. If we required the Judiciary to review every ballot measure before allowing it to be circulated and placed on the ballot, and if the Judiciary considered each ballot measure in the order that its final text was received by the Secretary of State, Amendment C would have been fourth in line for review (Dakotans for Health submitted two Medicaid measures on November 5 and November 16, 2020; the League of Women Voters submitted its final redistricting initiative on March 5, 2021; the Legislature delivered HJR 5003, the progenitor of Amendment C, to the Secretary on March 9, 2021). If the Judiciary gave each measure the same attention it gave Amendment A, it would not have gotten around to approving Amendment C for the ballot until after the 2024 general election.
Adopting former Speaker G. Mark Mickelson’s maxim that legal minds can differ, Representative Goodwin has voted for multiple measures that he was warned would violate the Constitution and which were subsequently overturned in court. If Representative Goodwin were willing to subject bills in the Legislature to the same sort of judicial prior review that he proposes for ballot measures, he’d at least be philosophically consistent, even as he brought the practical process of lawmaking to a grinding halt.
Perhaps Representative Goodwin will review the proposals of the 2017 Initiative and Referendum Task Force and revive the idea of creating a Citizen Initiative Review Committee, not to delay or prevent initiatives from going to a vote but to educate voters on the initiatives on which we get to vote. But that review should come from citizens, not any branch of the government that the initiative process is meant to check and balance.
Judicial prior review of all proposed legislation is unworkable and violates the separation of powers. Forcing all ballot question sponsors to argue the constitutionality of their measures in court to win access to the ballot would introduce more delays and more costs (sponsors would have to lawyer up for this process) to the initiative process, further crowding out responsive grassroots activism and leaving the initiative process the increasingly exclusive playground of wealthy special interests. (Wait, that sounds familiar….) Trusting the voters is a more reasonable and more practical approach: let voters take the first crack at determining whether an initiative is constitutional, not to mention practical, moral, or otherwise meritorious. If they err and vote for an initiative that violates the Constitution, a court’s subsequent overturning of that initiative will be more instructive and useful for future policymaking than the inevitably rushed and substandard prior review that Representative Goodwin may try imposing on the already overlong and overcomplicated initiative process.