Single Subject and Separate Placement: Amendment Z and Proposed Repeal Embrace Multiple Subjects!

Attorney General Marty Jackley has released a profoundly straightforward and downright boring draft explanation of the marijuana lobby’s proposed initiative to remove the single-subject rule from South Dakota’s Constitution:

Title: An Amendment to the South Dakota Constitution Removing the Limitation That a Proposed Constitutional Amendment Embrace Only One Subject.

Explanation: The South Dakota Constitution provides that a proposed constitutional amendment may not embrace more than one subject. In addition, the state Constitution requires that multiple amendments proposed at the same election must be individually presented and voted on separately.

This proposed amendment removes those provisions from the Constitution [Attorney General Marty Jackley, draft title and explanation, filed with Secretary of State Monae Johnson 2023.03.13].

Quincy Hanzen’s proposed amendment does exactly what Attorney General Jackley says it does: strikes the two clauses added to Article 23 Section 1 of the South Dakota Constitution in 2018 via Amendment Z:

Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject. If more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately. [Quincy Hanzen, proposed constitutional amendment, submitted to Attorney General’s office 2023.01.17]

Jackley’s explanation includes no apparent attempt to sandbag the amendment with Republican tomfoolery. It also helpfully reveals something I have never before considered: Amendment Z itself embraced more than one subject. Amendment Z, proposed by G. Mark Mickelson and his fellow anti-democracy Republicans in the 2018 Legislature, first dictated the single-subject rule. Then it superfluously dictated common and obvious practice: each proposed amendment has to appear as a separate votable item on the ballot. Note that the two clauses are completely severable: we could eliminate the single-subject rule and still require that each amendment, no matter how many subjects it embraces, appear as a separate ballot item; we could also eliminate the separate-placement rule while still requiring that each amendment, whether placed separately on the ballot or unprecedentedly lumped together by the Secretary of State as a massive omnibus amendment package, embrace only one subject.

Since Amendment Z apparently embraced two subjects, the single-subject rule and the separate-placement rule, Hanzen’s proposed repeal of Amendment Z also apparently embraces two subjects.

Perhaps that’s why Jackley isn’t exerting himself to sandbag the Hanzen amendment with a biased explanation. He knows that if the voters pass the Hanzen amendment, he can simply file a lawsuit saying that, just like Amendment A that Hanzen’s organization worked hard to pass in 2020, the Hanzen amendment violates the single-subject rule and thus must be thrown out.

By law, the Attorney General takes public comment on his title and explanation of the Hanzen amendment for ten days (in this case, until March 23), then issues his final title and explanation within another ten days. So by April 3, we’ll see Jackley’s final language, and by Easter, the marijuana lobby could have a final initiative petition approved by the Secretary of State’s office for circulation… assuming the Secretary of State doesn’t read this blog post, realize the Hanzen Amendment embraces more than one subject, and exercise her relatively new extra-judicial power to block sponsors from circulating petitions for multi-subject amendments.