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Bengs Amendment Checks Legislative Overreach; Judicial Branch and Voters Can Still Remedy Initiative Errors

Columnist Dana Hess deems Brian Bengs’s proposed initiated amendment to immunize voter-approved ballot measures from Legislative tinkering for seven years a clumsy and unnecessary measure:

Seven years is too long to live with a bad law. If citizens believe that legislators are messing with initiated measures too much, there’s a solution that doesn’t take nearly as long. Voters should keep in mind that legislative terms are just two years. Lawmakers who are too handsy with measures endorsed by voters can easily be shown the door without the need to amend the constitution [Dana Hess, “Amendment Is Clumsy Way to Keep Legislature from Manhandling Voter Initiatives,” South Dakota Searchlight, 2023.07.16].

I share Hess’s preference for frequent public votes over inflexible constitutional mechanisms. However, as we have seen over the past decade, some practical flaw (Republican branding? absence of an effective opposition party? not enough people reading Dakota Free Press?) prevents South Dakota voters from making the connection between the direct democracy they love and the elitist legislators who hate it. South Dakota voters have backed numerous ballot measures while reëlecting the legislators who have worked to undo those ballot measures and undermine the initiative and referendum process. We need checks on the majority party beyond regular elections; the Bengs amendment provides such a check.

Hess’s criticism of the Bengs amendment also rests on the flawed idea that preventing the Legislature from amending or repealing a voter-approved measure would saddle us with flawed laws for seven years. Hess bases his erroneous read on the sordid history of 2016’s Initiated Measure 22: voters approved it, Republican legislators sued, a Republican judge declared it unconstitutional, and Republican legislators repealed it and replaced it with a few pale and largely toothless voter-consolation prizes. “If Bengs’ amendment had existed at that time,” says Hess, “and if by some stretch of the imagination the state Supreme Court had found IM 22 constitutional, South Dakota would have been living with that law for the past seven years.”

Hess’s conditional—”if…the state Supreme Court had found IM 22 constitutional”—shows a flaw in Hess’s opposition. The Bengs amendment would not prevent judicial intervention. If a voter-approved measure violated either the state or federal constitution, we could still take it to court and enjoin its enforcement. I did that with Initiated Measure 24, the voters’ misguided endorsement of Republican Speaker G. Mark Mickelson’s attempt to hamstring ballot measures by banning out-of-state financial support. Initiated Measure 24 is still on the books as SDCL 12-27-28.2. The Bengs amendment would prevent the Legislature from erasing that statute until 2025, but with or without the Bengs amendment, the courts have stopped the state from enforcing that violation of the First and Fourteenth Amendments.

If voters approve a constitutionally flawed initiative, the Bengs amendment would still allow the Judicial Branch to remedy that error. The Bengs amendment simply responds to the Legislative Branch’s overreach in resisting voter-approved initiatives out of political spite at encroachment on Legislative power and privilege. The Bengs amendment would delay Legislative changes that rectify practical problems that arise from the wording and implementation of voter-approved measures, but North Dakota, Nevada, and Wyoming have similar hands-off periods to protect ballot measures, and their voters have yet to approve any ballot measure so flawed that it takes down their republic before the Legislature can make repairs.

And if voters make a mistake, Bengs would still let voters fix that mistake by running another initiative. If IM 22 had remained in effect but voters had decided that lobbyists should be able to give legislators gifts worth more than $100, voters could put an initiative on the very next ballot to revise or repeal that gift limit. Heck, if an approved initiative had a really big flaw, legislators could put a revision on a special election ballot in June and voters could approve that fix before the original initiative took effect on July 1.

If Hess likes our solving problems at the ballot box, the Bengs amendment allows for just such public problem-solving. The Bengs amendment checks Legislative overreach while still allowing voters to clean up their own messes at the polls and allowing the courts to check the voters’ occasional Constitutional errors.


  1. P. Aitch 2023-07-21 07:37

    Doesn’t it seem like an effort in futility to expect a group of elected representatives chosen by voters who rank fiftieth of fifty states in “innovation skills” to come up with, tweak, and initiate any new ideas?

  2. Donald Pay 2023-07-21 08:45

    Hess is not living in the world of reality. Most people don’t vote for legislators based on one issue, certainly not one as vague “messing with initiative measures too much.” When you go into the voting booth you are faced, if there is an actual race, with a couple choices for your Senator and four for your Representatives None of those people come with ballot statement that lists their stances on all the possible issues that will come before the legislature. You may not vote for a person based on issues, but on the fact that they go to your church. So, let’s just put that Hess argument aside. It ain’t reality.

    Let’s be clear. I think Hess is right—in a world that doesn’t exist in South Dakota. It may have existed in the past, but in a world where elitist and egoistical legislators act like tyrants, where they negate initiatives before they even go into effect, you can’t count on legislators to give initiatives a year or two to prove themselves. I mean, get real, Hess. Nearly every bill that’s written has flaws, but they still go into effect. If legislators played fair with initiatives, they would let them go into effect as written, figure out where there are problems, and work with the initiative sponsors to correct those problems. That would be the reasonable way to do things, but that doesn’t happen when legislators think they are God.

    So, while I would like to live in the world Hess manufactures, it isn’t the world that the Legislature allows us to live in anymore. Bengs is right. To stop the Legislature from tyranny, this initiative should pass.

  3. grudznick 2023-07-21 10:00

    If the Messrs. (messes?) Bengs and Weiland didn’t keep writing such sloppily written measures, such as the Unconstitutional Measure initiated as number 22, the legislatures wouldn’t have keep cleaning up their messes (Messrs?)

    Stop being so sloppy!!!!

  4. Donald Pay 2023-07-21 10:31

    Grudz, the “legislatures” write sloppy measures, and the citizens have to clean up after them.

  5. grudznick 2023-07-21 16:33

    If the Messrs. Bengs and Weiland would get it right and listen to some experts, people wouldn’t call them so sloppy and the legislatures might stop throwing wrenches in their way.

    Sounds like a polka band, don’t it? Bengs and Weiland. Or a shyster lawyer outfit. Bengs, Weiland and Haugaard.

  6. grudznick 2023-07-21 16:34

    Bengs, Weiland and Howie.

    Oh how they do indeed.

  7. Arlo Blundt 2023-07-21 19:33

    Grudznick..we’re on to hate all initiated and referred measures, regardless of who writes them….you like everything being handled in the legislature by lobbyists handing out top shelf booze, T-bones and a little cash if that does the trick.

  8. Jake 2023-07-21 19:48

    Arlo, please don’t forget the gravy and potatoes! (Some legislators are cheap!)

  9. John 2023-07-22 04:12

    The South Dakota legislative elites are out of control with their ignoring the voters.
    They promised to not put people in jail for abortions, yet they are being jailed next door. Soon it will occur here.
    Thugs like the AG want to track South Dakotans going out of state for medical care.
    South Dakota needs Bengs, Weiland, and Howie.

  10. grudznick 2023-07-22 07:41

    Indeed, Mr. Blundt. It is how our republic and state work. It helps protect the public against the insaner measures which can be foisted on the general public who are not paying attention or are confused by out-of-state big-dark-money efforts. Like the one Mr. Glodt foisted on everybody, and then he hisownself had to help fix it.

  11. P. Aitch 2023-07-22 08:22

    grudznichts – It’s quite clear how “your state works” and it works nothing like our Republic. One word describes how South Dakota works.
    SLOW –

    Our Republic, the USA, works like this and that’s why we’re about 10-15 years beyond you.

    We the People create things with the knowledge and trust that the things we create will need tweaking and we are confident in our ability to make any adjustments as needed as things progress.

    As Mando would say, “It is the way.”

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