If at first you don’t succeed, try, try again… but first sit around and wait for four years?
In another attack on the right of the people to make their own laws, Republicans Representative Fred Deutsch (R-5/Florence) and Senator Al Novstrup (R-3/Aberdeen) are proposing House Joint Resolution 5001, a constitutional amendment to hinder South Dakotans from trying again to pass rejected initiated amendments.
Deutsch and Novstrup propose adding the following language to Article 23 Section 1 of the South Dakota Constitution:
No constitutional amendment initiated by petition that has been determined to be substantially similar to an initiated constitutional amendment that was previously voted on and rejected by the electors of this state may be submitted to a vote of the electors until at least one intervening general election has taken place since the election in which the initiated constitutional amendment was last rejected. The attorney general shall determine if a constitutional amendment proposed by the people is substantially similar to a constitutional amendment that was voted on and rejected with no intervening general election [2023 HJR 5001, proposed addition to SD Const. Art. 23 Sec. 1, filed 2023.01.13].
As usual, Deutsch and Novstrup are trying to rig the system in their party’s anti-democratic favor.
First, they would give the Attorney General unilateral, unchecked power to throw amendments proposed by citizens off the ballot. Suppose Dakotans for Health gets its amendment to codify Roe v. Wade on the 2024 ballot but voters reject it by just few votes. Suppose another group senses that voters would support a different abortion-rights amendment, one that focuses on the stricter Casey standards. Suppose yet another group says Dakotans for Health’s problem was that they went for the compromise of Roe and says what South Dakota women really need is an absolute constitutional right to abortion without any government interference (Freedom!, right, Kristi?). Recognizing that restoring women’s reproductive rights is an urgent matter, both groups start circulating petitions right after the 2024 vote to put abortion on the 2026 ballot. Attorney General Marty Jackley could stall both proposed amendments: They both deal with abortion rights, and we already voted on abortion rights in 2024, so you have to wait until 2028. And the sponsors would have no resource, as HJR 5001 does not mention any role for the judiciary to question the attorney general’s authority on this matter.
Second, what’s wrong with considering a similar amendment, or even the exact same amendment, two elections in a row? As it is, we have to wait two years to reconsider a constitutional amendment, and we have to go through the same enormous amount of work to bring that question to another vote. If the 35,017 voters who sign the first amendment petition are not bummed out by their first loss and are willing to go to the trouble of signing a second initiative petition, why make them wait an extra two years?
Third, notice that Deutsch and Novstrup aren’t placing any such restriction on their own Legislative power to propose amendments. HJR 5001 only says rejected citizen amendments need a four-year cooling off period. Nothing stops Fred and Al from proposing the same old garbage election after election, no matter how many times voters turn it down. Voters could reject something like Amendment C, and HJR 5001 would let Fred and Al put a similar measure right back on the ballot next election, hoping Americans for Prosperity will spend more money on better ads. If the Legislature can respond to voter rejection of an amendment by putting the same amendment up for a vote in the very next election, why can’t citizens, who have to work much harder to put amendments on the statewide ballot?
Fourth, how far should this principle (a funny word to use for anything Al Novstrup proposes) go? If citizens wishing to retry failed amendments should have to sit out an election, shouldn’t legislators whose bills fail in Pierre be prohibited from proposing substantially similar bills in the next Session? What about candidates: since voters rejected Donald Trump in 2020, shouldn’t he have to sit out the 2024 election and wait until 2028 to run for President again?
HJR 5001 is another Republican attack on the people’s power to debate and amend their constitution. Republicans will probably put it up for a vote, but we voters should reject it to preserve our own rights.