Mike Mueller, Julie Frye-Mueller, and Matt Smith have kicked off their petition drive to abolish property taxes and replace maybe only 58% of the lost revenue by charging us $1.50 every time we go to the grocery store. Their campaign website has announced two regular signing locations: rookie Senator John Carley’s Elk Creek Resort at 8220 Elk Creek Road in Piedmont and Matt Smith’s insurance office at 1241 Sherman Road in Sturgis.
While these right-wing radicals won their fellow traveler Secretary of State Monae Johnson’s swift approval to collect signatures for this potential 2026 ballot initiative, they should still keep an eye out for a legal challenge to their proposed constitutional amendment. If this petition drive succeeds, Governor Larry Rhoden and other opponents who would prefer not to see school districts and counties bankrupted could easily get a judge to throw out this proposal not only for embracing more than one subject but also for revising rather than merely amending the state constitution.
I’ve already laid out one case that the amendment violates the single-subject rule by taking two distinct and severable actions: abolishing property tax and imposing an entirely new retail transaction tax.
But even if the sponsors argue that both policies fall under the broad subject of “taxation” (and remember, the single-subject rule is “infinitely malleable“, so we can argue pretty much anything here), the property tax/retail transaction tax amendment entails a subject separate from taxation: local control. The Mueller amendment takes away from local governments their authority to levy and collect taxes based on their analysis of local needs. Municipalities at least retain the right to impose sales taxes of varying rates, but under current law, schools and counties lose their taxing authority completely. That loss of authority translates into a lack of budgeting authority: how many teachers and deputies they hire, what buildings they repair and replace, what services they offer become entirely dependent on decisions the state makes.
It’s one thing to ask voters if they want to lower their net tax burden; it’s quite another to ask voters to give up control of their local governments. Those two things are two subjects, and two subjects aren’t allowed in any initiated amendment.
That second subject, local control, raises the question of whether this amendment even is an amendment or if it makes such a radical change to our plan of government that it qualifies as a constitutional revision. Distinguishing between amendments and revisions can take us into deep philosophical water, but the short form is that a revision will “institute ‘far reaching changes in the nature of our basic governmental plan.’” Those are the words Judge Christina Klinger used in 2021 to deem 2020 Amendment A, marijuana legalization, a constitutional revision, not an amendment. That distinction matters, because South Dakota Constitution Article 23 Section 2 says we have to call a constitutional convention to put a revision on the ballot. The retail-transaction tax sponsors are skipping the convention and offering their proposal directly for a public vote.
Judge Klinger said Amendment A revised the constitution because it reallocated Legislative and executive power on the relatively narrow issue of regulating marijuana. Annulling the taxing authority of local governments and reallocating that power exclusively to the Legislature seems a far broader change in our government plan, affecting the decision-making ability of every school and county in the state on every issue they deal with. Judge Klinger’s determination that Amendment A was a revision, not an amendment, sets a strong precedent that the Mueller/Frye-Mueller/Smith proposal so majorly changes South Dakota government that it requires a constitutional convention, not merely the initiative petition process.
I’m not fond of either the single-subject rule or the amendment/revision distinction. Both open the door for well-funded opponents of democracy to turn as away from substantive policy debate toward intricate and specious semantics. But such semantics are in case law. Governor Kristi Noem used them to kill marijuana legalization; Governor Larry Rhoden and the schools and counties and municipalities that will be bankrupted by the property-tax ban and pale retail-transaction tax substitute could use those same semantics to kill this multi-subject constitutional revision.