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Dakotans for Health Submits Revised Initiative Language to Repeal Food Tax; Vargo’s Error Delays Petitioning Four Months

Alas, Attorney General Mark Vargo’s incorrect explanation of the proposed ballot initiative to repeal the state sales tax on food has delayed the petition drive for that measure by months.

In July, Dakotans for Health submitted two draft initiatives to the Legislative Research Council. One would initiate a law to exempt food from the state sales tax; the other would write that exemption into the South Dakota Constitution. On August 12, the LRC responded to Dakotans for Health with comments that made clear that the two measures, as written, would apply only to the state sales tax, not to sales tax imposed on food by municipalities. In October, the LRC issued fiscal notes for both measures reiterating that point: “Municipalities could continue to tax anything sold for eating or drinking.”

Yet days later, Attorney General Vargo issued a draft explanation claiming that the initiatives would prohibit municipalities from taxing food. Vargo ignored public comment and the LRC and issued that incorrect claim in his final official explanation of the measures, an explanation that would have to appear side-by-side with and in contradiction to the LRC fiscal note on handouts provided by every petition circulator to voters who would sign the petitions to place those measures on the ballot.

Vargo has refused to explain how he reached his conclusion. Dakotans for Health could have taken him to court to force him to rewrite his explanation, but instead of racking up more lawyer bills on behalf of truth and democracy, ballot question committee chief Rick Weiland says Dakotans for Health has decided to rewrite its proposal:

It doesn’t make any sense to circulate a food tax repeal ballot measure with contradictory state information, so we are resubmitting and are asking the LRC and the Attorney General to expedite their review, explanation, and fiscal note…. Our new language adds one additional clarifying sentence, “This provision has no effect on the taxing authority of municipalities.” Since we cannot move forward until the LRC and the Attorney General complete their work, which normally takes three to four months, time we could be circulating petitions and collecting signatures, we are asking them to expedite their work [Rick Weiland, press release, Dakotans for Health, 2022.11.28].

Dakotans for Health’s resubmission comes just in time to ensure the LRC will take action on the new language this year. The LRC usually has 15 business days to provide comment on any submitted initiative. LRC must thus respond to Dakotans for Health’s new language by December 19. However, in a terrible law (SDCL 12-13-25.2) passed in 2018 to further sandbag direct democracy in South Dakota, the Legislature allows the LRC to shelve any initiative received on or after December 1 until after the Legislative Session ends. Any initiative received by the LRC on Thursday or later may not receive LRC comment until April 18. That date is important, because the 80-day waiting period for the Attorney General to provide an official explanation to an initiative can’t start until the LRC has provided its comment.

By submitting its new language yesterday, Dakotans for Health has ensured that it can start circulating its food-tax repeal petition by mid-March. Come Thursday, any initiatives reaching the LRC’s desk may not hit the streets for petitioning until mid-July, four months later.

But absent Vargo’s inexplicable error, Dakotans for Health could have been circulating its food-tax-repeal petition this month, four months earlier.


  1. grudznick 2022-11-29 07:15

    This is good stuff. Funny!

  2. All Mammal 2022-11-29 09:32

    Such a slime-ridden bunch of scallawags. Can’t these buzzards do their jobs for god’s sake? Bums we have working for us. Why, I oughta….

  3. Phil 2022-11-29 10:23

    A tax on the purchase of food appears to me to be a double taxation for the consumer. As a result of the Socialist New Deal agenda of FDR in the ‘30’s, the US has maintained a “cheap food policy.” By subsidizing the agricultural industrial complex with billions of taxpayer dollars, the cost of groceries at the retail level appears to be less than it actually is. Having been involved in ag related businesses for decades, I have enjoyed the trickle on benefit of feeding at the government trough. For example, I know of very few conventional farmers who would spend money on seeding cover crops if there wasn’t some significant cost sharing going on. Lower income folks don’t pay as much, or any, income tax, but they still get dinged at the grocery store in SoDak.

  4. Jenny 2022-11-29 10:54

    I am always a little startled when I am back in SD at a grocery after my I’m rung up on how much the bill is, sometimes thinking it’s a mistake. After a quick glance at the transaction, I remember that petty mean food tax that SD likes to hit its workers with.
    This is just a typical little scam with the Pub club to stall as long as they can. Vargo is doing their dirty business.

  5. Mark Anderson 2022-11-29 12:37

    Come on folks, Donald Duck would have taxed the air you breathe. What’s a few cents on food?

  6. All Mammal 2022-11-29 23:02

    Dakotans for Health-
    Thank you for caring. Thank you for always trying. Thank you for fighting so hard for everyone. Thank you for standing up for us. Thank you for doing the work of wolves.

  7. Cory Allen Heidelberger Post author | 2022-11-30 06:33

    I worry that Vargo issued this contradictory statement to delay petitioning until after the Legislative Session, thus keeping the airwaves clear for whatever sales-tax reform Governor Noem plans to propose. We should get more detail about her intentions on the food tax at next week’s budget address.

    The delay costs D4H four valuable months during which it could be collecting signatures in tandem with its codify-Roe petition (and I say collecting signatures on two petitions at the same time makes for good synergy and efficiency!). However, D4H is at least keeping its petition in play, making clear to the Governor and the Legislature that if they don’t finally act to rescind this regressive tax, the voters will take action.

  8. Kyle Krause 2022-11-30 16:43

    This rewrite might not even fix the problem that required the rewrite in the first place.

    Municipalities do not have their own inherent taxing authority. The taxing authority they do have comes from the State. So, if you take away the State’s authority to tax food, it follows that the State cannot delegate that authority to a municipality. Just saying that “This provision has no effect on the taxing authority of municipalities” might not fix that problem, since municipalities do not have inherent taxing authority of their own. The intent of the revision is clear, and the intended interpretation may carry the day, but it could be done in a less ambiguous fashion.

    It’s not pretty and doesn’t sound catchy, but the language in 2022 SB 117 would have unambiguously accomplished it’s intended purpose of repealing the state sales tax on food while still allowing it to be collected by municipalities.

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