Jan 19, 2022
In an effort to protect South Dakota's ballot measure process from a Republican-led assault, state residents on Tuesday filed a lawsuit against a proposed amendment they argue is a "classic example of logrolling" that violates the state constitution and imperils direct democracy.
At issue is Amendment C, a legislatively referred constitutional amendment that would require a three-fifths supermajority to approve ballot measures--whether introduced through citizen initiative or by state lawmakers--that increase taxes or appropriate $10 million or more in the first five fiscal years of implementation.
"This proposed amendment is exhibit A in the effort to undermine the ballot measures process by legislatures all over the country," Kelly Hall, executive director of the Fairness Project, which started the Ballot Measure Rescue Campaign to defend direct democracy in the U.S., said in a statement Tuesday. "Special interests and extremist politicians understand that if voters can bypass legislatures intent on blocking worker-friendly change, they lose."
"In South Dakota and elsewhere," Hall added, "they're trying to change the rules in the middle of the game by raising thresholds for changing policy at the ballot box, to give themselves the power to simply ignore the will of the people."
Skye Perryman, president and CEO of Democracy Forward, said in a statement that his advocacy group is "proud to support these efforts by voters to stand up and protect South Dakota's long history of direct democracy, and uphold the will of the people."
"Constitutional Amendment C," said Perryman, "is the latest example of the orchestrated and ongoing attack from bad actors across the country on our democratic institutions."
The South Dakota Legislature's move to impose a 60% threshold is anti-democratic on its face, say opponents, especially given the state's decades-long history of enabling voters to make change directly at the ballot box through majority rule.
In addition to restricting the ability of citizens to initiate change, plaintiffs David Owen of Sioux Falls and Jim Holbeck of Renner argue that Amendment C shouldn't be allowed to appear on the ballot because it forces voters to decide on more than one change at the same time--an attempt at vote aggregation and a violation of the state constitution's single subject and separate vote requirements.
\u201cAmendment C is scheduled to be on the primary ballot. The Amendment is designed to diminish the power of voters by restricting their ability to initiate legislation. We believe Amendment C is unconstitutional, and today we filed a lawsuit to stop it.\n\nhttps://t.co/ipN2PukGqb\u201d— Brendan Johnson (@Brendan Johnson) 1642528942
According to the suit, Amendment C contains two different subjects--a "taxation supermajority requirement" and a "spending supermajority requirement"--and therefore undermines voters' constitutional right to consider each issue separately. Some voters, for example, may support a 60% win threshold for ballot measures to raise taxes, but oppose a 60% win threshold for ballot measures to appropriate money.
Given that not all new appropriations require increasing taxes, the two topics are not necessarily linked, argue the plaintiffs, and it is illegal to force voters to either support or oppose both provisions simultaneously.
South Dakotans have "a long, proud, bipartisan history of making their voices heard through our initiative process," Owen and Holbeck said in a joint statement. "Since our state's founding, voters have passed and amended laws by majority rule, guided by the idea of voting on one issue at a time."
"Unfortunately, Amendment C silences our voice and fundamentally undermines the one issue, one vote principle of our ballot measure process," they continued. "It forces us to vote on the two distinct subjects contained in this single measure at the same time. We have a constitutional right to vote on them separately."
"In 2018, the people of South Dakota reiterated our approval of the single subject principle by explicitly adding it to our constitution," added Owen and Holbeck. "Overwhelmingly, South Dakotans said they did not want to be forced to vote for multiple policies in one measure, but that's exactly what Amendment C does. We hope the courts will agree."
Their lawsuit follows the South Dakota Supreme Court's recent decision on Amendment A. That measure to legalize hemp and recreational marijuana use was approved by voters in 2020 but nullified a year later when the high court upheld a lower court's ruling that the amendment's inclusion of multiple subjects ran afoul of the state constitution.
Owen and Holbeck, who are seeking immediate relief in the form of a permanent injunction barring Amendment C from being placed on the June primary ballot, have asked judges to apply the same logic in this case.
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