On Feb. 8, a South Dakota judge overturned Amendment A, a voter-created constitutional ballot measure that would have legalized recreational marijuana in South Dakota. According to the ruling, Amendment A would have “far reaching effects” that would have violated the state’s single-subject rule, which states that amendments must only deal with one subject.
Amendment A passed with 54% of the vote in last year’s election, and Circuit Judge Christina Klinger’s ruling in favor of overturning Amendment A, a sentiment directly led by Gov. Kristi Noem, is a direct attack on the will of South Dakota voters and an assault on their right to enact governmental change through the state’s initiative and referendum process.
This effort to suppress the will of South Dakota voters and to diminish their voice is not unique, however. Throughout the last four election cycles, the South Dakota government has repeatedly fought against the will of the people and has attempted to negate citizen-created ballot measures.
History of Ballot Measure Overturnings
The first attempt in a long line of overturning the will of South Dakota voters was in response to the voter-led minimum wage increase in the state. In the 2014 election, voters approved an initiated measure (IM) that increased the state’s minimum wage from $7.25 an hour to $8.50. The measure, titled IM 18, passed with 55%. Months later, the legislature proposed a bill that would have reduced the minimum wage for minors down to $7.50, which sparked outrage among voters. Because of the state’s referendum process, voters were allowed to put the bill on the 2016 ballot, where it was thankfully voted down. As a result, the voters defeated the state’s attempt to overturn their will.
Also on the 2016 ballot was IM 22, a measure that would have overhauled state campaign financing and lobbying laws and created an ethics board to enforce the laws. Voters passed the measure with 51%. When the measure was brought to the Legislature, however, they repealed it. Additionally, the Legislature made the repeal a legislative emergency, which stifled voters’ referendum rights and meant that the repeal could not be put on the ballot for voters to decide upon like IM 18 was. While lawmakers later enacted some elements of IM 22, much of the measure’s contents were disregarded completely.
Last year, during the 2020 election cycle, the now famous Amendment A passed. As a constitutional amendment, the state Legislature was not able to repeal the measure. However, Gov. Noem instead ordered a lawsuit against the measure “on [her] behalf,” with the plaintiff being “under [her] direction,” according to an executive order from Noem herself. Judge Klinger, appointed by Noem, ultimately sided with Noem and overturned Amendment A, using the state’s single-subject rule, which was passed in 2018, as the basis of her ruling.
Attacks on the Initiative and Referendum Process
Through this years-long battle between the voters and the South Dakota government, it is clear that the state is trying to directly diminish the power of the initiative and referendum process, a sacred right that South Dakotans have had for over a century. When voters used the referendum process to challenge the youth minimum wage, the Legislature used legislative emergencies to prevent the possibility of referendums in the future. When citizens proposed amendments instead of measures as a way to bypass those legislative emergencies, the governor used lawsuits and the newly created single-subject rule instead.
This attack is also seen in egregious bills and amendments passed by the Legislature, such as the previously mentioned single-subject rule, which passed in 2018 under the title Amendment Z. The amendment, which was a joint resolution and therefore came from the Legislature and not the voters, says that an amendment “may [not] embrace more than one subject.” However, the amendment does not define a subject. As a result, an amendment that truly focuses on a single subject, such as marijuana, can be overturned due to the vagueness of what a “subject” is.
Augustana’s own Reynold Nesiba, who serves as a state senator in addition to his role as an economics professor, said that this ambiguity was intentional and that it was designed to be an attack on the initiative rights of voters. Many other prominent South Dakota Democrats agree.
As the recent overturning of Amendment A shows, the South Dakota government has been trying harder and harder to silence the voice of the voters and suppress the voters’ initiative and referendum rights. If voters let this process continue, the state government, whether that be the Legislature or the governor, will take every opportunity they have, and create an opportunity when they don’t, to purposefully restrict the voice, will and rights of South Dakota citizens.
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