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Former U.S. Senate Candidate Proposes Initiative to Protect Voter-Approved Ballot Measures from Legislative Repeal or Change for Seven Years

Brian Bengs, who unsuccessfully ran against John Thune for Senate last year, is proposing an initiative to protect voter-approved ballot measures from Legislative interference. On May 4, Bengs submitted this final initiative language for Attorney General’s review. Bengs would add one sentence to Article 3, Section 1, of the South Dakota Constitution:

A measure approved by the electors may not be repealed or amended by the Legislature for seven years from the enacted date of the measure [Brian Bengs, proposed initiated constitutional amendment, 2023.05.04].

This amendment would appear to apply to any ballot measure that wins voter approval, be it a citizen-led initiated law or amendment, a Legislatively generated constitutional amendment, or a Legislatively approved law that survives a referendum vote. A similar initiative proposed in 2017by Roxanne Weber that did not make the ballot would have required a two-thirds vote by each chamber of the Legislature to fiddle with voter-approved ballot measures during their first seven years of effect; Bengs tosses that compromise and tells the Legislature “Hands off!” for seven years, no matter how much the supermajority may chafe under the people’s rule.

Weber’s 2017 proposal mirrored North Dakota’s protection of ballot measures. Nevada forbids Legislative repeal or amendment of voter-approved measures for three years; Wyoming keeps Legislative hands off enacted ballot measures for two years.  A few other states protect initiatives from Legislative alteration with time buffers and/or supermajority vote requirements; California and Arizona require that voters approve any Legislative alteration. South Dakota is one of eleven states that allows the Legislature free rein in whacking the voters’ will.

The Legislative Research Council tells Bengs that the Attorney General will issue his draft title and explanation for this ballot-measure-protection measure by July 3. After the obligatory and superfluous 20-day comment and revision period, Bengs could have a petition on the streets by August 1, in time to circulate at all the big fairs and in that lovely late-summer and early-fall petitioning weather.

Bengs appears not yet to have filed a statement of organization for a ballot question committee. He’ll need to do that within fifteen days of raising or spending more than $500 for this ballot question campaign or upon filing his final petition forms with the Secretary of State.


  1. larry kurtz 2023-05-25 11:07

    How is Professor Bengs not our best candidate to stand for South Dakota’s lone US House seat?

  2. Mike Lee Zitterich 2023-05-25 11:13

    I suspect if adopted, this would be challenged in the Supreme Court as “Unconstitutional” since Article 6, Section 1 says All men are born equally free and independent, and have certain inherent rights, among which are those of enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.”

    ANY such law that is adopted by the people, either their elected “representatives” or the “voters” have the right to NOT consent to such laws, prior to the effective date which is July 1st.

    This means:

    If the “Voters” adopt an resolution, initiative, or amendment on November 7th; the People of the “State” have the ability to do the following:

    a) Lobby their Legislature (representatives) to reconsider, debate further, to vote to amend, repeal, replace such law;

    b) Petition the Voters to “Refer” back to a public vote, to amend, repeal, replace such law;

    c) Petition the Circuit Court(s) of the Counties to request an opinion, assessment, recommendation of the court to amend, repeal, strike down, or replace such law, and of which allows the people to furthermore, challenge any such law in the Supreme Court of the State.

    Knowing, that we have from November 7th to June 30th to do all this prior to the July 1st Effective Date – this proposed initiative would be deemed Unconstitutional, cause it violates in itself, the Constitutional ability of the WHOLE PEOPLE of consenting or not consenting.

    I would urge my fellow ‘voters’ to NOT sign this petition, let alone, DO NOT vote in favor of this initiative, it will cost us taxpayers to defend in the months following the vote.

  3. Donald Pay 2023-05-25 13:29

    Generally, I would oppose this amendment. Just from my own experience in initiative campaigns and as a lobbyist, I understand that laws need to be tweaked to address issues that come up. You may think you have covered all the bases, but no one can foresee all circumstances over several years. It would be nice to have a process that could make those changes without having to worry that the Legislature will obliterate the will of the voters. It could be done most easily by an honest Legislature. However, the South Dakota Legislature and many Governors have proven they can’t be trusted to make those changes in a fair way that corrects errors or addresses unforeseen problems.

    There might be a middle way, however, which would allow the Legislature to make changes to an initiated law proposed by the initiative sponsor to address unforeseen matters. No one wants a law that is unworkable, but it should be proven unworkable by putting it into effect for two years before any changes are made. After that, the Legislature should be able to amend the bill, but only to make it more workable or efficient, not to repeal it or cripple it.

  4. bearcreekbat 2023-05-25 14:19

    As a middle ground, perhaps there could be a requirment that any proposed legislative changes to an initiated law would be subject to an automatic referral vote to give voters a chance to reject such proposed changes.

  5. Mike Lee Zitterich 2023-05-25 15:17

    You really do not want to place in our constitution such a restriction on the people and their representatives from changing laws, or adopting laws that could effectively hurt our ability to freely govern ourselves accordingly. It would not only violate Article 6, Section 1, but it would also arm our most fundlemental rights in Article 6, Section 28.

    Any LAW adopted by the voters in November, the citizens can at anytime prior June 30th, meaning, they can lobby, gain support of at least 2 legislators to place the “adopted initiative” on the Legislative Agenda to be heard, debated, and discussed between January 15 and March 15th of the subsequent yea, ahead of June 30th, then on top of that, if the citizens do not like the changes or results of the discussions, related to the adopted law, they have that one final shot to refer back to the voters, let alone challenge the law in a public court room. So they have the means to change any such law adopted by both the voters as well as the legislature ahead of June 30th, which is the deadline before the law goes in to effect the very next day, July 1.

    DO NOT place any restrictions on the people, nor their representatives.

  6. O 2023-05-25 15:41

    As a matter of principle, I would reject anything that requires my assent or rejection prior to knowing what I am agreeing or disagreeing to. This is asking a person to promise not to get made before they hear what you have to tell them. Let us judge each initiative on its merits at its proper time without previous constraint created before the question is known.

  7. Donald Pay 2023-05-25 15:54

    bearcreekbat, I like your proposal better than mine. It would encourage a more respectful and a working relationship between WE, THE PEOPLE and legislators. I would also say that any initiative should go into effect immediately upon confirmation of the vote. That way there would be time to get a feeling for how the initiated law was working before the Legislature meets. If changes need to be made as Mike Z. notes, it doesn’t work well with the present implementation dates, which were changed for the specific purpose of not following the laws that people pass. It seems we are getting closer to meeting everyone’s needs.

    The automatic referral needs to be thought out and put into the wording of any initiative. It must be made clear that this automatic referral is in addition to the current language for other acts of the legislature, not in place of it.

    I would say the automatic referral trigger for changes to the initiated law is good for a specified number of years (4?).

  8. grudznick 2023-05-25 16:34

    We know that anything written by Mr. Bengs is destined to fail. It is like the Mr. Weiland measures, initiated. Sloppy sloppy sloppy. Let people who can write the law bills do the law bill making. Mr. Weiland’s is so sloppy and could have been so easily fixed. Shame.

  9. grudznick 2023-05-25 17:12

    Mr. Zitterich, I gather you are somewhat of a constitutional scholar. Is grudznick correct in that?

  10. bearcreekbat 2023-05-25 17:15

    Based on what Mr. Zitterich has written here and elsewhere, along with his failure to respond to my inquiry about whether the State of SD has a legal right to kill children over 10 years old, teenagers, and anyone else who aids, abets, or advises a woman that obtains an abortion in SD that has been made illegal by the SD trigger laws, I doubt that Mr. Zitterich would support two particular SD constitutional amendments that I would like to see voted on by the people and hopefully adopted.

    First, if Mr. Zitterich is correct that the Bill of Rights and other limitations to State power imposed by the U.S. Constitution do not restrict SD laws in any way, then we need an amendment to the SD Constitution clearly stating that our own state government is restricted by each explicit and implied restriction of the U.S. Constitution, including the Bill of Rights and all subsequent federal Amendments. And to the extent that Mr. Zitterich contends SD is not bound by the SCOTUS interprtetation of the federal Constitution, the SD Constitution should be amendned to state that the decisions of the SCOTUS are binding on the state of SD and are the supreme law of the land.

    At this point I do not believe that such an Amendment to the SD will change existing law, but perhaps it might slow down the anti-federalist zeal of those that worship on the antediluvian mantle of State Sovereignty, including deterring the incubation of potentially violent insurrectionists. Such an amendment to the State Constitution would also make it clear that the State of SD has to obey the SCOTUS decisions prohibiting the State from killing children over the age of 10, but younger than 18, as well as mentally incompetent individuals, even if they are caught, charged and convicted of aiding, abetting or advising a woman that obtains a post-trigger law illegal abortion in SD.

    Second, I believe a State Constitutional Amendment is definitely needed to eliminate a post-trigger law abortion as grounds for a 1st degree or 2nd degree murder prosecution, and prohibiting imposition of the death sentence or mandatory life in prison for any woman charged and convicted of having a post-trigger law abortion, and for anyone that is charged and convicted of aiding, abetting or advising her in so doing. It makes no sense to legalize abortions needed to save the life of the pregnant woman, but then kill her if the State can later prove the abortion wasn’t actually necessary to save her life. Either her life is worth saving or it is not worth saving, and there is no reason to permit the State to have a role in the cold blooded calculated killing of anyone, including that woman or her medical helpers, family, friends nor anyone else that might aid, abet or advise her. (See SDCL 22-3-3).

  11. Mike Lee Zitterich 2023-05-25 23:51

    The S.D LAW banning ABortion does NOT force any woman to go to prison for having an abortion. The LAW relieves the WOMAN of any wrong doing, the law if you read clearly, punishes more severely the Doctor, the Healthcare Provider, and anyone who attempts to instruct or lead the woman into having an abortion. The LAW itself gives women immunity form having a death sentence placed on her, unless of course, she herself, manipulated the process in order to deceive someone, or another person to have the abortion.

    The UNITED STATES Constitution does NOT restrict the States on any particular matter, other than it grants authority to the Federal Govt in the jurisdiction to be governed by the Federal Govt – “Federal Territory” aka District of Columbia and any of it’s Enclaves within a State. The BILL OF RIGHTS reserved to the States and to each American a list of inalienable rights that cannot be taken from them at any moment.

    Federal Statutes are only SUPREME over State laws in the Territory of the District of Columbia, or where only the Federal Govt has supreme authority given to it by the States aka Foreign Commerce (outside the State), Monetary, Defense of National Borders, Immigrations. Any thing outside that jurisdiction, State Laws are supreme over federal laws inside State Jurisdiction.

  12. bearcreekbat 2023-05-26 00:48

    Mr. Zitterich, I hope you are right. Please read this SD LAW:

    SDCL 22-16-4. Homicide as murder in the first degree.

    Homicide is murder in the first degree:
    (1) If perpetrated without authority of law and with a premeditated design to effect the death of . . . an
    unborn child; . .

    The maximum punishment for someone convicted of 1st degree murder is the death sentence.

    I can find no language in SDCL 22-16-4 that says it doesn’t apply to a woman that chooses to have an abortion now made illegal by the S.D. trigger law. What S.D.LAW should I read that says this S.D.LAW doesn’t apply to such a woman, or as you put it: “relieves the WOMAN of any wrong doing,” and “The LAW itself gives women immunity form having a death sentence placed on her.”

    Meanwhile, I take it you do agree that S.D.LAW authorizes the state of S.D. to kill any child, teenager, mental incompetent or any other person “who attempts to instruct or lead the woman into having an abortion?” And if so, would you support an initiated law to prevent the State killing any of these people?

  13. Richard Schriever 2023-05-26 06:45

    My questions to Mr. Bengs et al are, “Why 7 years? And why involve the legislature at all?” If you trust the people to enact a measure, why not trust them to make adjustments? Why not this?”

    Consent of the Governed Act:

    “Any Initiated Measure or Constitutional Amendment passed by a direct vote of the people, shall not be nullified or altered or amended in any way by any means other to a direct vote of the people.”

  14. Richard Schriever 2023-05-26 06:54

    Donald, here’s the problem with your views on the role of a legislature in SD. It is based on the idealistic notion that the legislature is an “…..honest Legislature.” Legislation, laws and a constitution must be crafted with reality in mind, not some “ideal” world of one’ imagining. The contents or intent of the forementioned may indeed be idealistic, and goal-driven but the processes must be based on the realities of known human and political behavior and capacities for same, not what they would “ideally” be if you could but wish them so.

  15. Richard Schriever 2023-05-26 07:06

    For example – none of the various proposed languages around the involvement of the legislature in voter passed measures or amendments from simple nullifying them entirely (including the law creating the “waiting period” itself) through legislative after some specified time period. Not one. they all leave to door open at least a crack for future legislative nullification. And we all know that the one-party SD legislature (and administrative and judicial branches) is quite capable of nullifying entirely, voter passed measures. They have shown this time and time again.

  16. Doug Kronaizl 2023-05-26 16:05

    Applying a time frame presents one particular issue, though, in that it prevents a response to urgent or unintended issues. But it hasn’t been a problem for municipalities. Under state law, at that level, it’s a one-year wait period. I’ve never heard that posing a problem for them.

    My initial crack in 2016 used the vote threshold requirement from NE. And also roped in ND law which allows for referral of statutes with an emergency declaration (

    But in 2018, with Amendment W, we switched gears and went the route of an automatic referral of any measures that A. changed the I&R process or B. amended or repealed citizen initiatives.

    Under the Amendment W proposal, there would have been nothing stopping legislators from putting the changes on an earlier ballot rather than waiting the full two years (a la Amendment C or the Marsy’s Law changes in 2020).

    Here’s a handy compendium of what some other states do:

  17. Doug Kronaizl 2023-05-26 16:06

    Oh, I meant the Marsy’s Law changes in 2018 – time is a flat circle

  18. Richard Schriever 2023-05-27 08:24

    Doug Kronaizl (and Dr. Bengs) – by allowing the legislature to make ANY changes to an initiated measure or popularly passed constitutional amendment is a self-defeating act. Even if this passes, they’ll just wait 7 years and get rid of the 7-year waiting period. Good grief. Stop trying to be SO CLEVER. KISS.

  19. Richard Schriever 2023-05-27 08:27

    If there is REALLY an EMERGENCY need to change some voter passed law or amendment, the Governor/Legislature can call for a special election and PUT IT TO THE PEOPLE – again.

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