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Public Comment Producing No Useful Evaluation of Attorney General’s Language, Unnecessarily Delaying Petition Circulation

Attorney General Marty Jackley has already received three comments on his proposed title and explanation of the marijuana lobby’s proposed amendment to repeal the single-subject rule for constitutional amendments. As has been the case with previous public comment on draft titles and explanations, the comment submitted so far on this draft title and explanation show that the public generally does not understand what this public comment period is for and that the ten days allotted for public comment and the additional ten days allotted for the Attorney General’s review serve no purpose worth the extra delay in releasing the final petition for circulation.

This public comment period comes from 2021 Senate Bill 123. The purpose of the period is to solicit comment on the title and explanation the Attorney General would attach to the initiative petition, not the initiative itself. Contrary to the stunningly incorrect headline in yesterday’s Rapid City Journal, the Attorney General isn’t proposing the initiative; its sponsors are. The sponsors’ initiative language is already set in stone at this point in the petition process; the only thing the Attorney General may change is the wording of his title and explanation.

Submitting comments for or against the proposed initiative is thus pointless; this comment period is strictly an arcane legal exercise in determining whether the Attorney General has fulfilled his duty to provide an “objective, clear, and simple summary to educate the voters of the purpose and effect” of the proposed initiative.

But none of the three comments submitted so far on Jackley’s draft explanation of the Hanzen amendment recognize that narrow purpose.

Simon Montandon pontificates on the need to protect conservative South Dakota from East River progressivism:

Simon Montandon, public comment on A.G.'s draft title and explanation of Hanzen amendment, 2023.03.14.
Simon Montandon, public comment on A.G.’s draft title and explanation of Hanzen amendment, 2023.03.14.

Montandon doesn’t say one word about the Attorney General’s title or explanation. He just doesn’t like the initiative. Montandon also signals his support for tougher signature requirements, which the Legislature rejected and which are not within the Attorney General’s jurisdiction to propose or enforce. Montandon finally asks Jackley for a map of where the signature of where the petition signatures come from. Such a map would be fascinating, but the state never creates such a map, and if the state did, it would be the Secretary of State, not the Attorney General, who prepares it.

David Hubbard doesn’t say anything about Jackley’s title and amendment, either. Hubbard doesn’t even address the specific merits of repealing the single-subject rule:

David Hubbard, public comment on A.G.'s draft title and explanation of Hanzen amendment, 2023.03.15.
David Hubbard, public comment on A.G.’s draft title and explanation of Hanzen amendment, 2023.03.15.

Jackley’s party is certainly against democracy, but nothing in Jackley’s title and explanation suggests that he wants to “erect more hurdles for South Dakotans to voice their opinions and make choices for themselves.”

Brent Cox also misdirects his comments at Jackley and his party’s general anti-democratic bent. He also seems to misunderstand the intent of the Hanzen amendment:

Brent Cox, public comment on A.G.'s draft title and explanation of Hanzen amendment, 2023.03.15.
Brent Cox, public comment on A.G.’s draft title and explanation of Hanzen amendment, 2023.03.15.

No, Brent, I’m pretty sure that Jackley and his fellow Republicans who blocked recreational marijuana with the 2018 single-subject rule that allowed the courts to overturn Amendment A do not want to “put the former law back in place” via the marijuana lobby’s proposed amendment to repeal that single-subject rule. The Hanzen amendment would not help Jackley’s party “get more of what you want”.

But the big point here is that none of these three comments addresses the purpose prescribed by law, to address the language the Attorney General has proposed for the initiative. Nobody has so far said, Golly, Marty, your title and explanation are not objective, clear, or simple and here’s why… or Gee, Marty, you fail to address these specific purposes and effects of the proposed amendment….

I love public participation. I love hearing what people think of ballot measures. But this 10-day period for sending public comment to the Attorney General is not the venue for such comment. The state does not sponsor or require any such public comment period addressing the merits of the initiatives themselves. Such a comment period might provide sponsors with valuable assistance in gauging public opinion and drafting more responsive initiatives, and I recommended the Legislature create such a comment period when it considered SB 123 in 2021. But the Legislature ignored that good idea and instead enacted this narrow public comment period which misleads the public into thinking they have a chance to comment on the merits of the initiative itself when in fact they can only comment on the Attorney General’s title and explanation of the initiative.

This public comment period is too meta to be clear or useful, and the misdirected public comments received on so far on the A.G.’s language for this initiative and previous measures prove that these 20 days are wasted.

Related Reading: The public comments on A.G. Jackley’s title and explanation of the open-primary amendment were just as misdirected. The Attorney General received 27 comments (plus one more after deadline); only one, from sponsors’ lawyer Brendan Johnson, addressed the draft title and explanation; the other 27 came from people opposed to open primaries. Some of those opponents mistook the initiative for a proposal from Jackley himself; some urged the Attorney General to not move forward with the initiative or place the initiative, which blockage the Attorney General is utterly powerless to do.

One Comment

  1. Mark Anderson 2023-03-16 13:10

    It’s simple, apparently when citizens vote for a legislator they know what they are doing. When they bypass the legislature they just don’t understand.

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