Are citizens limited to what we can refer to a vote? The attorney general thinks the law says just that.

In today's Rapid City Journal, Attorney General Larry Long thinks that the South Dakota Constitution might have some limitations on the initiative and referral process that many people aren't aware of:
Long said he based his opinion on a 1995 case dealing with an initiated measure in Wessington Springs. The state’s highest court said an initiative could not be used to repeal a city ordinance, and that ruling likely applies to initiatives on the state level, the attorney general said.

Supporters of the two proposals strongly criticized Long’s opinion, but they did not immediately pledge to pursue legal challenges.

Long said the 1995 Supreme Court ruling said an initiated measure cannot be used to repeal existing law, and the two measures at issue seek to repeal the video lottery and the tax on cell-phone companies passed by the 2003 Legislature.

The attorney general said he interprets the 1995 court ruling to mean that initiated measures cannot be used in cases where the appropriate remedy would have been for opponents to refer the existing law to a public vote, which must be done within 90 days of the end of the legislative session in which the law was passed.

Long said that the constitution bars referral of emergency laws and those necessary for the support of state government, such as revenue measures. An additional argument for keeping the video lottery and cell-phone tax measures off the ballot is that they could not have been referred to a public vote even when they were first passed, he said.


The video lottery has survived several statewide votes that could have repealed it.

Daniel Brendtro, who led the effort to put the video lottery repeal on the ballot, said he would take some time before deciding how to respond to Long’s opinion. But he said a court challenge appeared to be the only option left.

“The voters of South Dakota have the constitutional right to eliminate government programs and lower their own taxes at the ballot box, and I’m surprised to hear that the attorney general and the secretary of state think differently,” Brendtro said.
Read it all here. Secretary of State Chris Nelson noted that "he agrees with Long’s legal analysis but that he is “not a fan” of keeping measures off the ballot." I haven't read it yet, so I don't know if I'd agree myself. But I would concur with Chris that I'm not a fan of keeping things off the ballot, either.

Governmental authority rests with the electorate, and we don't like it when you tell us that we can't vote on something.

Maybe someone will start their own initiated constitutional measure to address the whole thing. A "constitutional amendment to protect the citizen's right to initiated measures."

But it needs a catchier title first.


Anonymous said…

Anonymous said…
Nothing surprising about the ruling. Have you ever considered reading the constitution and statutes governing r and i? try it, it might be fun.
Anonymous said…
I have read the Constitution and the statutes in regard to both referendum and initiative. What the Attorney General is doing is a travesty. The State is using questionable case law to protect a large revenue source, all at the expense of the public.

On another note, the Secretary of State's comments are disingenuous. He clearly has the right to not listent to the AG's opinion and to put the initiatives on the ballot. It wouldn't be any different than the vote on the food tax in 2004. The only difference, the State knew they weren't going to lose the food tax vote, because it was pushed by the Democratic party.

If people don't stand up for their right to vote in this instance they are going to be allowing the State to take that right away from them.
Anonymous said…
When the voters repealed the state inheritance tax a few years back was it an initiated measure or a constitutional amendment?

If an initiative wouldn't that have been the same thing?
Anonymous said…
Is Chris Nelson an attorney?
Anonymous said…
5:45, if you really had read the provisions in the constitution and statutes concerning r and i and actually understood them you would realize how inaccurate your comments are. The AG's reasoning is sound and reflects complete understanding of those provisions. I might add that if you don't like what the provisions are you can always use the process to change them, just don't cast aspersions aginst those who understand what they mean and are obligated by their oaths of office to uphold them.

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