I hadn't thought about that one - part II

In the previous post, I had opined that in the last decade, we haven't faced an issue where approval or disapproval of a statute had been directly referred to the people by a vote of the legislature. Hence, when the Governor says there may be a constitutional problem with doing so.... it's entirely possible.

As I got home tonight, I pulled up the constitutional section (under the legislative article, III, section 1):
Legislative power--Initiative and referendum. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: "Be it enacted by the people of South Dakota." The Legislature shall make suitable provisions for carrying into effect the provisions of this section.
Read it for yourself here. And that makes it about as clear as mud.

The state constitution notes that "the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect."

So, I'm reading it so that through the initiative process, the people can propose directly to the people, and that they can refer laws. But it still leaves it up in the air whether or not that which it is silent on (the legislature referring measures to a vote of the electors) is allowable or not, since it's not prohibited.

KCCR News had this to add:
Rounds has not said if he would sign an abortion ban bill of any kind. He tells KCCR News that while he has not seen this bill, there might be a question of whether a bill could be passed and signed this way and then sent straight to the public. He says there may be a constitutional question about the bill. Rounds says the public has the right to refer any law that doesn’t have an emergency clause to a public vote. He says if "there is strong enough desire" people will go out and collect signatures to put the measure on the ballot.
Read that all here.

Any attorneys want to tackle that one? An abortion vote might depend on it.

Comments

Anonymous said…
If members of the legislature want it on the ballot, maybe they should have to circulate petitions just like us "real" people have to do.
PP said…
I'm not so sure they wouldn't have to at this point.
Anonymous said…
I like the Governor and continue to support him, but why the heck doesn't he keep up to date on pending legislation? Hiding his head in the sand by saying that he doesn't read this stuff is silly.
Anonymous said…
Lets face it is saves them from taking a vote tht hte people can see.
Oops... I did say that.
Anonymous said…
Let's try that again.
It saves the legislators from a public vote that the people can see how they voted and hold them to it.
oops... did i say that.
Anonymous said…
The press generally misunderstands the Governor on this. When he says "he hasn't read the bill," what he means is "he doesn't know what the bill will say when it gets to him." This abortion ban has already been completely rewritten once - the governor doesn't need to decide what to do on a particular bill until it the legislature passes it.

That is why he will often state a position on general ideas, such as creating a separate board for tech schools, but will not speak to particular bills. It really makes sense, and shows his understanding of and respect for the legislative process.
Anonymous said…
8:39

Governor's are elected to lead. This guy needs to know what is going on and way in in committee like he does for other issues he supports or opposes.

He simply doen't know what to do every time this abortion issue comes up because he is concerned about a primary opponent.

He's this way on lots of issues. Same song, different verse.

Most good Republicans want a leader not a follower!
Anonymous said…
The governor should STAY OUT OF WHAT GOES ON IN THE LEGISLATURE--he gets his chance after they are done with it. A leader that micro-manages is NOT welcome.

Frankly his minimum wage and Kindergarden crap is just that--let the legislature bring the bills to him--not the other way around!
been there said…
9:48 is exactly right! Having served under Janklow and Rounds, it is frustrating to see them try to push their weight around and coerce votes when it should be none of their business!
On the other hand, I was very disappointed in seeing the House committee wimp out and put in the clause in to send it directly to the people. Have a backbone and do YOUR job. That is why you got elected. I really think most people don't want to vote on it again.
Anonymous said…
I find this whole thing funny.

The amendment they're talking about was the only thing I liked about this new ban. I thought, "Well, if they insist on going through this nonsense again, at least they were considerate enough to send it to the ballot." It seemed like a good idea for such a divisive issue. But it turns out that might not be constitutional.

Funny.
Anonymous said…
9:48 and 11:30, there is a BIG difference between micromanaging and being informed. I think the Governor is trying to do the "see no evil, hear no evil" routine to avoid questions. (I am the 7:04 post who supports the Governor. I believe has shown leadership on many things, but is falling down on the job on this one.)
Anonymous said…
They're trying to refer it because they think it will have a better chance of being upheld by the courts that way. They think that, if a majority of South Dakotans vote in favor of it, the courts will be less likely to strike it down.

Of course, this demonstrates a stunning lack of understanding about how the Constitution works. The Constitution protects minority rights from being abridged by the majority. Currently, under Roe v. Wade, the Constitution protects the right to get an abortion. This right is protected even if 100% of South Dakotans voted to prohibit abortion. Just like the right to free speech would still be protected if 100% of South Dakotans voted to prohibit that.

Now, Roe v. Wade isn't going to be overturned anytime soon. But even if the Supreme Court were going to overrule Roe, it would do so because of they way in which it interprets the Constitution, not because of a vote. The results of elections have nothing to do with what the Constitution says, or how it's interpreted.

The Court does not look to opinion polls when they interpret the Constitution. It's simply astonishing that our Attorney General doesn't understand that, but I'm not at all surprised.
nonnie said…
I hope the legislature takes a stand and passes this abortion bill. If PP et al doesn't like it, well then get the signatures to get it on the ballot. Might not be as easy this time around though as long as it has exceptions. Whether or not it can gt directly passed to a vote of the people should be immmaterial to whether the legislature passes this bill or Rounds signs it.

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