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Joint resolution would require 3/5 vote for initiated measures, referendums costing over $10M

Published: Mar. 3, 2021 at 7:01 PM CST
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RAPID CITY, S.D. (KOTA) - Marijuana and sports betting in 2020, Marcy’s Law and Direct Democracy in 2018-- these are examples of Initiated measures and South Dakota Constitutional amendments that voters went to the polls for.

But, House Joint Resolution 5003 would require a three-fifths vote rather than a simple majority, at least for initiated measures or constitutional amendments costing $10 million or more.

“Most initiates involve some kind of spending, and none of them pass with 60% of the vote,” said Dr. Pamela Carriveau, an associate professor of Political Science and Sociology at Black Hills State University. “So, it would significantly thwart, I guess, the ability of people to use the initiative or referendum process to try to get policies changed in South Dakota.”

While Carriveau said HJR 5003 would limit the referendum or initiative process, some argue that since the state legislature requires 3/5 for any bill requiring spending, there should be consistency for the initiative and referendum process, too. A sponsor of the bill said it is for the sake of quality control.

“I just want to have it when you go to the ballot, and you vote, whatever you vote for, if it does pass, it’s legal,” said Representative Tim Goodwin, (R) District 30 and the Majority Whip. “It doesn’t go to the courts to have a ruling at that point. We need quality control, and according to the Secretary of State and Attorney General’s Office, they don’t have the teeth to do that. So, our intent with this bill is to give them the teeth, so there is quality control, so the public knows whatever they vote for is already legal.”

If passed, HJR 5003 would go to a public vote in June, a recent change to the bill.

“There’s been a movement across the country to make it more difficult for people to use the initiated measure or referendum process,” said Carriveau. “Legislatures generally don’t like it when we have direct democracy. They want the power to make policy themselves. Initiated measure and referendum allow voters a lot more direct authority, a lot more direct agency.”

Carriveau said research shows initiated measures and referendums are often pursued by Conservative voters, but courts can use the $10 million-threshold to limit new measures.

“It’s one other way for courts to invalidate initiatives,” said Carriveau. “They can say, ‘Well, it doesn’t directly spend $10 million, but by means of this, this, and this, in the end, it will have that effect.’ It will be one other way that courts can invalidate initiatives that do pass or get the 50%, but not the 60%.”

Carriveau said in 1898. South Dakota was the first state to authorize a referendum at the state level.

Brendan Johnson, a former U.S. Attorney who represented Amendment A in court, said the legislature is trying to make it more difficult for South Dakotans to bring new laws forward.

“Any unconstitutional efforts by the legislature to short circuit the right to initiate legislation will result in expensive litigation for the state of South Dakota because we will fight to uphold people’s right to initiate legislation,” said Johnson.

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