You know, for all the wailing and gnashing of teeth accompanying the Legislature’s passage and the Governor’s signing today of House Bill 1080, the ban on gender-affirming health care for minors in South Dakota, I haven’t heard much talk about one important practical fact about the bill: HB 1080 has no emergency clause. It passed with big enough Republican majorities, more than two thirds, in both the House and the Senate that it could have passed with an emergency clause and taken effect immediately, today. Prime sponsor Representative Bethany Soye (R-9/Sioux Falls) could even have made the case that her bill was “necessary for the immediate preservation of the public…health or safety“, the language so often stretched to meaninglessness on other “emergency” bills.
But Soye and the Legislature didn’t declare the risk children face from gender-affirming care an emergency. They didn’t append an emergency clause to HB 1080. They said this additional instance of legislators playing doctor can wait to take effect until July 1.
The absence of an emergency clause means people who are outraged at this further Republican intrusion into health care, parental rights, personal identity can do something about it. They can start a petition—no, not some feckless feel-good online petition, but a real, legal referendum petition that could put HB 1080 on ice for at least two years and put the bill to a vote of the people in the 2024 general election.
Since feckless Secretary of State Monae Johnson hasn’t updated the ballot question information page and probably doesn’t understand the referendum process herself, let’s review how a referendum works.
- South Dakotans may refer any law approved by the Legislature and signed by the Governor to a public vote, as long as that law does not include an emergency clause [SD Const Art 3 Sec 1].
- Citizens wishing to refer HB 1080 to a public vote must collect signatures on a referendum petition from 17,509 registered South Dakota voters (that’s 5% of the votes cast for Governor in 2022).
- Any adult resident of South Dakota may circulate a referendum petition.
- Citizens have to wait until the end of the Legislative Session—that’s Veto Day, Monday, March 27—to start collecting petition signatures. Once both the Senate President and the Speaker of the House have banged their gavels sine die that day, registered South Dakota voters can sign your referendum petition.
- Citizens have 90 days to collect those 17,509 signatures. Petitioners must submit all of their signed, notarized petition sheets in one batch to the Secretary of State by 5 p.m. on Monday, June 26.
- The Secretary will immediately check the petition by random sample to estimate whether it has 17,509 valid signatures.
- If the Secretary validates the petition, HB 1080 is suspended and placed on the 2024 general election ballot.
- If HB 1080 receives a Yes vote from a majority of voters in the November 5, 2024, general election, it takes effect July 1, 2025. If HB 1080 does not receive a Yes vote from a majority of voters, it is dead.
The Secretary of State does provide petition forms, which must be edited by petition sponsors to give the title of the bill they want to refer and the date of the general election when it would appear on the ballot. The referendum petition for HB 1080 would look like this:
You can also download a PDF version here: ReferendumPetition-2023HB1080.
Sponsors need to submit a copy of the petition form to the Secretary of State before circulating to ensure that the document follows the rules. Big Tip: the form must have both of the pages shown above printed on a single sheet of paper, with “We the Undersigned” and bill title on the front and the circulator’s oath and notary space on the back.
Sponsors, you can submit that form for approval to the Secretary of State tomorrow, or any business day this month or next, before the beginning of circulation. Submit that form and get it approved now, and you can start making copies (again, printed front and back! No stapling separate sheets!) and distributing them to your allies around the state so that everyone can hit the streets, the clubs, the track meets, the drag shows, any friendly place the moment the Legislature adjourns on March 27. You then have 90 full days to collect 17,509 signatures, plus at least 3,500 extra as cushion. Rounding up, that’s 240 signatures a day. Divide that work up among 100 people who are committed to the cause, and each person needs to average 2.4 signatures each day, about 17 signatures each week, from March 27 to June 26.
There are more legal nuts and bolts to a referendum petition drive, and I’ll be happy to lay them out for anyone interested. But what you see above is the basic framework for stopping HB 1080 and putting it to a vote. Collect 17,509 signatures between March 27 and June 26, and you stop the law from taking effect. You keep gender-affirming care for young South Dakotans legal for at least two more years. And you give yourself and your allies a chance to put this question of health care and basic humanity to all the voters of South Dakota.
Opponents of HB 1080, defenders of trans youth, are you game?