Travis Ismay of Newell wants to repeal the medical cannabis law that South Dakota voters passed in 2020. Back in May, he filed a draft initiative petition to achieve that repeal. He wanted the petition to state his legislative intent in one sentence: that the entire medical cannabis chapter, SDCL 34-20G, be repealed. But the Legislative Research Council said no, an initiative can’t just say “Repeal Statute X”; the initiative petition has to spell out the entire statute, word for word, with the entire text stricken out (see LRC, Guide to Legislative Drafting, revised September 2023, pp. 71–73). In this case, following that guidance—LRC calls it a requirement, based on SDCL 12-13-24’s mandate that initiatives “shall be written in a clear and coherent manner in the style and form of other legislation“—would require printing 97 sections in stricken-through 14-point font. Under normal printing circumstances, that text would cover 44 letter-size pages. However, since petitions must be a single sheet, Ismay would need to print the complete text of his initiative on a piece of paper 44 inches tall and 40 inches wide.
Ismay initially heeded that advice, submitting a redrafted petition with the entire text for LRC and attorney general review, but for his final petition draft, Ismay played a switcheroo and submitted a single-sentence repeal statement: “That 34-20G Medical Cannabis be Repealed.”
Secretary of State Monae Johnson joined Ismay in defying the LRC and approved his initiative petition for circulation in that concise form:
The petition’s reference to “Exhibit A” is problematic. The Secretary of State’s ballot question webpage offers no Exhibit A. I’ve never seen a statute refer to an “exhibit”, such a reference may not belong anywhere in statute.
Worse, the text refers to 95 sections to be repealed, but SDCL Chapter 34-20G contains 97 active sections. The original medical cannabis law, Initiated Measure 26, contained 95 sections, but the Legislature has since repealed four and added six, making a grand total of 97 active medical cannabis laws that Ismay should want to repeal. If Ismay’s intent is to repeal the entire chapter, then this petition, as approved by Monae Johnson, misstates that legislative intent and cannot be valid.
I want to read the rookie Secretary’s approval of this very concise petition as a victory for our initiative rights. As I have contended in my own petition efforts, citizens who want to repeal a lengthy, complicated statute should not have to print every word of that long statute on their petition sheets. Accurately citing specific statutes makes legislative intent perfectly clear. Petition signers can look up cited statutes with a few clicks of a mouse or taps of a phone on the Legislature’s website. We could even require petition circulators to have the complete printed text of the law available for signers to read on separate handouts consisting of multiple pages (or just nice iPads!) if necessary. Plus, less initiative text allows for more signatures per petition sheet, further lowering printing costs. (Ismay’s legal-size sheets can fit 30 signatures.)
Requiring citizens to print thousands of words on a single ridiculously huge petition sheet, when simple numerical references to specific statutes would suffice to establish legislative intent, only limits the range of changes citizens can propose by making some petitions too costly to print and unwieldy to circulate.
But Ismay’s miscount, approved by the inexperienced Secretary Johnson, spoils a good move for democracy. Even if this alleged Exhibit A lists all 97 active sections of SDCL Chapter 34-20G, the reference on the petition to 95 sections that will be repealed spoils Ismay’s petition and prevents the placement of that incorrectly stated initiative on the ballot.
Ismay’s cause is not lost. He can rectify this error by submitting a new final draft of his petition that refers to 97 sections, not 95. Better yet, don’t mention the number at all: the citation of Chapter 34-20G should suffice. The initiative text shouldn’t even mention Exhibit A, as writing an exhibit into statute raises the same question the Secretary of State’s incomplete webpage does: Where’s the exhibit? If Ismay makes those changes, and if the LRC, Attorney General, and Secretary can all agree those changes are mere cleanup that do not require another complete 100-day round of review and public comment, Ismay could be back on the sidewalks and radical right-wing insurrectionist meetings in Butte County within days collecting signatures.
The deadline for submitting initiative petitions for the 2024 general election is May 7, 2024.
Claiming to be a victim of the LRC? Labeling yourself a “victim” is addictive. They just can’t help themselves. Addiction is like that.
It is just a case of very sloppy work by the amateurs in the Secretary of State’s office. The members of the “so-called “deep state” would not allow such grievous oversight and carelessness to go before the voters. However, Secretary Johnson has adopted the old Republican mantra “Close enough for Government Work”.
The law requiring these to be on a single piece of paper in a 14 point font is ridiculous. It is also the law. I tried mightily to change it. We should have petitions with 12 point font with just the AG’s description. Circulators should be required to have an electonic and paper copies of the actual initiated measure language available. This would make the process easier for the Secretary of State, ballot committees, circulators, and signers. It would make it easier for folks to see what the petition actually does. We should fix this. It will probably take a petition drive or electing a lot more Democrats to the state house.
Back in 2018, I recall that while I was working up an initiative petition, I found a mere technical error in my language. I’d already submitted the language to the LRC and the Attorney General and wanted to make a correction before the Secretary of State approved the petition. However, Secretary Barnett took the position that the two words I changed warranted restarting the initiative review process. AG Jackley did me a favor and issued a new explanation within a month, but he changed 80 words of his explanation.
Technically, Ismay’s change of his submitted language, from the complete strikethrough version submitted to the Attorney General to the one-line repealer submitted to the SOS, requires restarting the review process. The Attorney General may look at that one-line repealer and find that it has some different legal effect from the explicit 97-section strikethrough version.
SOS Johnson has authorized an inaccurate and illegal petition. So much for election integrity.