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.