Among the 17 changes to election law that Secretary of State Monae Johnson presented to the Board of Elections yesterday is a bill outline that could have come straight from Dakota Free Press:
15. An Act to modify and repeal provisions relating to single-subject determinations for ballot questions.
a. This bill will remove the requirement that the Secretary of State certify whether a proposed ballot question addresses only a single subject. Currently, both the Director of the Legislative Research Council and the Secretary of State are required to determine whether a proposed ballot question addresses only a single subject [Secretary of State Monae Johnson, proposed bills for 2026 Legislative Session, presented to State Board of Elections 2025.11.18].
Lee Schoenbeck and Will Mortenson introduced the ridiculous idea of granting the Secretary of State arbitrary extrajudicial power to determine the single-subjectivity of proposed initiatives back in 2021. Like her predecessor Steve Barnett, Secretary Johnson has never exercised this power to block circulation of an initiative petition, even with a clearly multi-subject proposal staring her in the face. But she should not have this power. As I have said since Schoenbeck, Mortenson, and the Legislature granted this power, the Secretary of State is not a judge. The Schoenbeck–Mortenson law offers no criteria or standards to define subjects; it simply gives the Secretary of State arbitrary and unchecked power to block ballot measures, whether proposed by citizens or the Legislature.
The Secretary of State appears to agree that she shouldn’t be rendering judicial decisions:
[Deputy SOS Tom] Deadrick said it shouldn’t be the secretary of state’s role to decide whether a proposed measure deals with only one subject. He said that turning down a petition on the grounds of two subjects would be “an automatic lawsuit.”
“As far as we’re concerned, it should stay with the LRC and we should be out of it,” Deadrick said.
[Board of Elections member Kent] Alberty asked whether having both the LRC and the Secretary of State provides a check and balance.
Replied Deadrick, “I would say the check and balance is the courts” [Bob Mercer, “Elections Board Begins Pawing Through Ideas,” KELO-TV, 2025.11.18].
The Secretary of State is right: she has no business rendering opinions that are better left to the courts. But the Secretary’s Proposal #15 does not go far enough. It does not address the equally strange and inappropriate power the Schoenbeck–Mortenson law grants the Secretary to block proposed constitutional changes for constituting revisions rather than amendments. Distinguishing revisions from amendments is as complicated and judicial a question as discerning multiple subjects. We should not expect or allow the Secretary to exert any extrajudicial analysis or authority over either issue. Secretary Johnson should expand Proposal #15 to repeal SDCL 12-13-26.1, 12-13-26.2, and 12-13.26.3 in toto (and strike the reference to 12-13-26.1 in 12-13-26) and strike that extrajudicial review entirely from her ballot question portfolio.