I hadn't thought about that one -
KELOland: Governor questions whether measure can go straight to the ballot.

KELOland is reporting today that Governor Rounds brought up the question whether the legislature can send a statutory (as in non-constitutional) change of law directly to the ballot themselves without making a prior decision on it:
A legislative committee gave first-round approval to a bill that would ban abortions except in cases of rape, incest and to preserve the life and health of a pregnant woman. An amendment would send it to a public vote if passed by the Legislature and signed by the governor.

Rounds says he hasn't seen the bill, but says there might be a constitutional question about sending it to the ballot without the usual petition referral process.
Read it all here.

Now, some might try to blow off some smoke and snidely say it's a way to kill the measure, but think again. It's pretty settled that Constitutional measures go straight to the voters. Initiated measures and laws that were passed and go through a referral process via petition. But when was the last time you actually ever saw something go straight through as the legislature is attempting to do with the latest abortion ban?

Well, I went and looked. How have they fared in recent years when they've attempted it? It took me a while, but here's the list:

In 2005, we had SB 215, on school starting before labor day, which was killed. In 2003, we had HB 1004, An Act to repeal the prohibition of certain disclosures by a state agency of information concerning a private entity and to refer the Act to the electors of this state at the next general election, which was also killed in committee. That measure had previously appeared in 2002 as HB 1142 and met the same fate.

In 2001, House Joint Resolution 1001 was close to it, in not necessarily being a constitutional question, but that failed.

HB 1237 in 1999 was to repeal video lottery, and it failed. Same with Senate Bill 245 to tax alcohol. (and SB 225 in 1997)

HB 1183 on revamping the property in 1998 also failed to be passed to bring the question straight to the voters.

That's right - we haven't faced that scenario in the last decade.

Constitutional questions are an entirely different thing, but if you go look as I had to, in every single case (at least those immediately available on-line without further research) where someone in the legislature tried to bring a non-constitutional measure straight to the people, it failed during the process. Meaning, we've never really had to face the question until now.

So, speculation is actually quite valid. Is the act of submitting a non-constitutional measure straight to the electorate by the legislature allowable? Who knows.

More to come on this as I continue my research.


Anonymous said…
How about the Costner bill in 1993?
Carry Smith said…
How did the marriage ammendment get to the ballot? Through the legislature right? How is that different then this abortion ban? Do tell us teacher (from the classroom)
Anonymous said…
The Marriage Amendment was a CONSTITUTIONAL AMENDMENDENT - those are always submitted to a vote of the people. There is no constitutional mechanism by which the legislature can automatically refer a law to the people - it would be for the Supreme Court to decide if they can do that as a matter of law (I think they probably can).
Anonymous said…
Rounds is correct that there is no constitutional provision for what they are trying to do. However, the Legislative Power is construed very broadly. It is quite possible it would be permitted.

Nevertheless, is there really any doubt about what would happen if the Legislature just tried a new version of 1215? The exact same group of pro-choicers would mobilize to refer the vote to the people, and we would have essentially the same result....the law referred to the people.
Lee Schoenbeck said…
In 1995 or 1996 there was a proposal to put some part of the property tax replacement on the ballot. I think it passed the legislature, but then over either a weekend or veto day, it was recalled and killed. I still recall going home and having my mother say that they shouldn't have to vote on things that they sent us there to do. That particular idea was modelled after action taken in Wisconsin that same year or the prior year.
In 2006 I believe Sen Olson presented the idea and proposed an ammendment to put the aboriton issue directly on the ballot. I do not recall if he actually made the motion on the senate floor or not - but I think he did. If he did, the ammendment did not pass.
Anonymous said…
someone told me that some years ago, 15 or 20?, the issue of increasing the bet limits in Deadwood was put to the voters in a special election this way. Any validity to that?

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