Butte County Republican activist and welder Travis Ismay is thinking about putting an initiated measure on the 2024 ballot to keep federally banned substances off the ballot. A few weeks ago, Ismay submitted the following single-sentence amendment to the Legislative Research Council:
We will not allow the legalization of federally band substances on our ballot [Travis Ismay, proposed constitutional amendment, quoted by Reed Holwegner, LRC response, 2023.05.08].
Yes, Ismay wrote “band”. While I would enjoy exploring the possibility that Ismay is trying to prevent South Dakotans from ever voting on permitting material assistance to the United States Marine Band, let’s just assume Ismay trusted spellcheck and meant to write “banned”. Hey, it happens to all of us.
While I appreciate the effort of any citizen to craft a simple, straightforward initiative that achieves its desired purpose in a single sentence, Ismay does need to clarify his intent. The LRC identifies several problems in his wording:
- Pronouns are bad if they don’t have antecedents. Who is “we” in this amendment? Who would do the not-allowing? On whose ballot will the legalization of federally banned substances not be allowed?
- Future tense is strange and problematic. Ismay says “We will not allow…,” but he does not say when in the future we will start not-allowing (or stop allowing?) the thing he wants to not-allow. Is he expressing an intent to begin not-allowing when the amendment takes effect? Does he want to get around to not-allowing a few years later? Laws need to talk about present permission or prohibition—may or may not—not write into law the idea that we will permit or prohibit something later.
- If Ismay intends to restrict the placement of certain measures on the ballot, he needs to frame his proposal as a constitutional amendment in order to check the mostly unchecked power reserved by the people in Article 3 Section 1 to place whatever measure they want on their ballot. (See? “Their” is o.k. there, because its antecedent is “the people”.)
On the good side, LRC says Ismay’s measure wouldn’t cost us anything and thus won’t need a fiscal note. That’s a relief; that’s one less thing Ismay would have to type up for his petition drive, and Ismay seems to have some trouble typing.
But on the really bad side, Ismay is contradicting the supreme authority of the people to rule. He’s even contradicting his own right wing’s adoration of states’ rights. Why would a good Republican want to deny his fellow South Dakotans the opportunity to place a measure on the ballot that would stick a finger—or a reefer—in the eye of an overbearing, overreaching federal government that will not allow the states to act as the laboratories of liberty that the Founding Fathers intended?
Stay tuned for Ismay’s rewrite—maybe he’ll cook up some clearer language to submit for the Attorney General’s review. And Travis, if you do write up a petition, call me for proofreading before you submit to the Secretary of State and start circulating! I would hate to see a petition fouled by typos.