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Stories about South Dakota

Idaho Gov. Brad Little (R) signs bill increasing initiative signature distribution requirements

On April 17, Gov. Brad Little (R) signed Senate Bill 1110. The bill changed the state’s distribution requirement for ballot initiative and veto referendum signature petitions to require signatures from 6% of voters from all 35 legislative districts instead of the previous requirement of 6% of voters from 18 of the state’s legislative districts.

With SB 1110 signed into law, Idaho joined Utah and South Dakota in passing bills restricting the states’ initiative processes so far in 2021.

Ballotpedia has tracked 124 legislative proposals concerning ballot initiatives, veto referendums, referrals, local ballot measures, and recall in 34 states in 2021 legislative sessions. Approved bills include significant changes that would make it harder to qualify or pass ballot measures in Idaho, South Dakota, and Utah. Notable topics among bills introduced in 2021 sessions include supermajority requirement increases, signature requirement or distribution requirement increases, single-subject rules, and pay-per-signature bans.

In 2019, the Idaho Legislature passed, but Gov. Little vetoed, a pair of bills that were designed to increase the state’s initiative signature requirement and its distribution requirement, among other changes. The legislature did not override Gov. Little’s vetoes in 2019.

In 2021, both chambers of the legislature passed SB 1110 by more than the two-thirds majority required to override a veto: 26-9 in the Senate and 51-18 in the House.

Reclaim Idaho filed a lawsuit against SB 1110 and filed an initiative designed to repeal the bill. Luke Mayville, co-founder of Reclaim Idaho, said, “This makes citizen initiatives virtually impossible in Idaho. Under this legislation, we’re not likely to see another initiative like Medicaid expansion from 2018 or like the term limits initiative from the 1990’s. So we are very disappointed with Governor Little. […] This fight is not over because this legislation is clearly unconstitutional, and our organization, Reclaim Idaho, has decided to file a lawsuit and to ask the courts to strike down this legislation and to protect the citizen initiative rights of all the people of Idaho.”

Representative Sage Dixon (R) supported SB 1110. Dixon said, “Every district in Idaho should be represented in that process. This is an effort to protect the voice of everybody in Idaho in the lawmaking process, very similar to what we do here as representatives, and what the senators do as well.”

Governor Little’s statement on SB 1110 wrote, “whether senate bill 1110 amounts to an impermissible restriction in violation of our constitution is highly fact-dependent and, ultimately, a question for the Idaho judiciary to decide. I also expect the federal courts may be called to determine whether senate bill 1110 violates the first amendment of the U.S. Constitution.”



Hunter Roberts appointed secretary of South Dakota’s new Department of Agriculture and Natural Resources 

Hunter Roberts assumed office on April 19 as secretary of the newly-formed South Dakota Department of Agriculture and Natural Resources. Governor Kristi Noem (R) appointed Roberts to the position in August 2020.

The Department of Agriculture and Department of Environment and Natural Resources officially merged on April 19. Noem had announced her intention to combine the two departments last August and signed an executive order establishing the new department on Jan. 19, 2021. He had served as the state’s secretary of environment and natural resources since 2019.

Roberts was appointed interim secretary of agriculture in September 2020 and served in both roles until the departments merged in April 2021. South Dakota also has an elected state office—commissioner of school and public lands—that is responsible for supervising lands designated for educational use by the federal government.

Agriculture commissioners are elected in 12 states and appointed in 38, while natural resources commissioners are appointed in 44 states and elected in five. Of those five states, three—Arkansas, New Mexico, and South Dakota—have both an appointed and elected officeholder responsible for managing natural resources. Wyoming is the only state without a natural resources commissioner. 

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South Dakota will decide an amendment requiring 60% voter approval for measures raising taxes in June 2022

Image of several stickers with the words "I voted"

South Dakota voters will decide June 7, 2022, on a constitutional amendment that would require three-fifths (60%) voter approval for any future ballot measures that would increase taxes or fees or that would require the state to appropriate $10 million or more in the first five fiscal years. The requirement would apply to constitutional amendments and state statutes that are placed on the ballot through citizen initiative petition drives or by a vote of the state legislature. Currently, all ballot measures in South Dakota required a simple majority vote (50%+1) to be adopted.

This amendment was introduced as House Joint Resolution 5003 by Republican Speaker Pro Tempore Jon Hansen on February 2, 2021. The measure was passed in the House on February 16, 2021, in a vote of 56-12. All eight House Democrats voted against the bill. Of 62 House Republicans, 56 voted in favor, four voted against, and two were excused.

On March 2, 2021, the South Dakota State Senate amended HJR 5003 to move the election date from November 2022 to June 2022. The amended version was passed by a vote of 18-17. All three Senate Democrats voted against the measure. Among Senate Republicans, 18 voted in favor and 14 voted against. The House concurred with the Senate’s amendments on March 4, 2021, in a vote of 51-17, certifying the measure for the June ballot.

Two states have supermajority requirements for ballot measures about certain topics:

  1. Washington requires three-fifths (60 percent) supermajority approval from all voters casting a ballot on initiatives or referendums related to gambling. Other questions require simple majority approval to be enacted.
  2. Utah requires a two-thirds (66.67%) supermajority vote for the approval of any initiatives concerning the taking of wildlife.

Legislation to enact or increase existing supermajority requirements for certain ballot measures was introduced in 2021 legislative sessions in six states: Arizona, Arkansas, Florida, Missouri, North Dakota, and South Dakota.

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Sponsors of South Dakota medical marijuana initiative propose alternative implementation schedule after Gov. Noem proposed a 1-year delay

In November, South Dakota became the first state to vote on recreational and medical marijuana at the same election. Voters approved Initiated Measure 26 by a vote of 70% to 30% and Constitutional Amendment A by a vote of 54% to 46%.

IM 26 was designed to establish a medical marijuana program in South Dakota for individuals who have a debilitating medical condition as certified by a physician. The initiative was set to take effect on July 1, 2021, with deadlines for certain implementation steps to take place in the fall. The state House is considering a bill to change the effective date from July 1, 2021, to January 1, 2022, and to delay the deadlines for certain provisions from Fall 2021 (under IM 26) to Spring 2022. The delays are supported by Governor Kristi Noem, who announced plans for delaying implementation of the program by one year. Sponsors of IM 26 proposed an alternative implementation schedule to shorten the delays.

Under the IM 26, patients will be allowed to possess a maximum of three ounces of marijuana. Limits on the cannabis products a person may possess would be set by the Department of Health. According to the measure, patients registered to cultivate marijuana at home could grow three plants at minimum, or another amount as prescribed by a physician.

Constitutional Amendment A was designed to legalize the recreational use of marijuana and require the South Dakota State Legislature to pass laws providing for the use of medical marijuana and the sale of hemp by April 1, 2022. Amendment A was ruled unconstitutional by the Hughes County Circuit Court. Sponsors appealed to the state supreme court.

On February 10, South Dakota Governor Kristi Noem (R) announced a plan to delay the implementation of the state’s medical marijuana program until July 1, 2022, a year later than the dates set forth under the IM 26. Noem said, “We are working diligently to get IM 26 implemented safely and correctly. The feasibility of getting this program up and running well will take additional time.”

House Bill 1100 was introduced in the South Dakota House of Representatives on January 27, 2021, and was passed by the state affairs committee on February 17, 2021. The bill would amend IM 26 to change the effective dates from 2021 to 2022. The bill stated that “Due to the pending litigation [surrounding Constitutional Amendment A], the Department of Health’s continued efforts against COVID-19, and the complexity of marijuana’s status under federal law, the State needs more time to establish a medical marijuana program with integrity and prudency than its current effective date of July 1, 2021.”

On February 22, 2021, New Approach South Dakota and South Dakotans for Better Marijuana Laws announced their proposal for an alternative implementation schedule in response to House Bill 1100. Matthew Schweich, director of South Dakotans for Better Marijuana Laws said, “A delay to implementation is partly justified due to the Department of Health’s important role in managing South Dakota’s pandemic response. That is one of the reasons why we are proposing this compromise. However, the primary motivation is the prospect of enactment of HB 1100A, which defies the will of the people, harshly re-criminalizes medical marijuana patients, and provides a vehicle for repealing and replacing the law.”

The proposed compromise legislation would extend the deadlines for certain parts of the medical marijuana program’s implementation to January 2022 in order to give the state more time to implement the measure. The proposed compromise bill would require legal protections for potential medical marijuana patients prior to registry ID cards being issued to take effect on July 1, 2021 (the date set forth under IM 26). HB 1100 initially proposed enacting the legal protections for potential medical marijuana patients starting on July 1, 2022, but it was amended to move that date up to January 1, 2022.

South Dakota is one of eleven states (out of 21 with a process for initiated state statutes) with no restrictions on how soon or with what majority state legislators can repeal or amend initiated statutes.

As of November 2020, 35 states and Washington, D.C., had passed laws legalizing or decriminalizing medical marijuana. Additionally, 15 states had legalized the use of cannabis oil, or cannabidiol (CBD)—one of the non-psychoactive ingredients found in marijuana—for medical purposes.

Fifteen states and the District of Columbia have legalized marijuana for recreational purposes: 12 states and D.C. through ballot initiatives, one state through a legislatively referred ballot measure, and two through bills approved by state legislatures and signed by governors.

The federal government has classified marijuana as an illegal controlled substance since 1970. Marijuana is a Schedule I drug under the Controlled Substances Act (CSA). As of 2020, the possession, purchase, and sale of marijuana were illegal under federal law.

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South Dakota state House advances constitutional amendment requiring three-fifths approval for measures increasing taxes, fees or appropriating more than $10 million

The South Dakota House of Representatives approved House Joint Resolution 5003 on February 16 in a vote of 56-12.

The measure would amend the state constitution to require a three-fifths (60%) vote for approval of any ballot measures (whether citizen-initiated or legislatively referred) that imposes or increases taxes or fees or appropriates $10 million or more in any of the first five fiscal years after enactment.

South Dakota residents may initiate legislation as either a state statute or a constitutional amendment. The South Dakota State Legislature may place measures on the ballot as legislatively referred constitutional amendments or legislatively referred state statutes with a simple majority vote of each chamber. As of 2021, all ballot measures in South Dakota required a simple majority vote (50%+1) to be adopted.

HJR 5003 was introduced into the South Dakota House of Representatives by Republican Speaker Pro Tempore Jon Hansen on February 2, 2021. All eight House Democrats voted against the bill. Of 62 House Republicans, 56 voted in favor, four voted against, and two were excused. To be placed on the 2022 ballot, the amendment must receive 18 affirmative votes in the South Dakota State Senate, in which Republicans hold a 32-3 supermajority. To become a part of the state constitution, a simple majority of voters must approve the change.

The South Dakota State Senate has passed three other bills this month concerning citizen initiative requirements:

  • Senate Bill 77, which was designed to require initiative petitions to print the full text in 14-point font;
  • Senate Bill 86, which was designed to require the South Dakota Secretary of State and Attorney General to issue an opinion to sponsors of initiative constitutional amendments concerning whether or not the amendment comprises a single subject and whether or not the proposed change is considered a constitutional amendment or a revision of the state constitution; and
  • Senate Bill 123, which was designed to create a 10-day comment period for ballot language of citizen initiatives, requiring the attorney general to review all comments and amend the ballot language as deemed necessary.

These bills would take effect if approved in the state House, where Republicans hold a 62-8 supermajority and do not require voter approval.

Republican sponsors of the bills pointed to the legal challenges to Amendment A, a constitutional initiative approved by voters in 2020 to legalize marijuana, which was ruled unconstitutional by the Hughes County Circuit Court and appealed to the state supreme court.

Senator Reynold Nesiba, one of three Democratic Senators in South Dakota, said, “This is a systematic attack by the Republican party to stifle direct democracy in South Dakota.”

Vote requirements for ballot measures vary from state to state and based on different ballot measure types and topics.

As of 2021, South Dakota was one of 37 states that required a simple majority vote (50%+1) for a proposed constitutional amendment to be adopted. Below are some of the other requirements that ballot measures face across the country.

In Nevada, a simple majority vote is required for all constitutional amendments, however, initiated constitutional amendments must be approved by voters at two successive general elections.

Constitutional amendments in Colorado require a 55% supermajority vote for approval, except for amendments that repeal language and do not amend or add language, which require a simple majority. This supermajority requirement was adopted in 2016 through a citizen initiative.

Constitutional amendments in Florida (citizen-initiated and legislatively referred) must receive a supermajority vote of 60% of those voting on the question, according to Section 5 of Article XI. This change was made via a legislatively referred constitutional amendment in 2006.

In Illinois, legislatively referred constitutional amendments must receive a supermajority vote of 60% of those voting on the question or a majority of those who cast a ballot for any office in that election.

In New Hampshire, a proposed amendment must be approved by two-thirds (66.67%) of those voting in order to become part of the state’s constitution.

In seven other states, there are requirements based on turnout at the election or for a particular office, such as governor.

In Washington, a 60 percent supermajority vote for any measure concerning gambling. Utah requires a two-thirds (66.67%) supermajority vote for the approval of any initiatives concerning the taking of wildlife.

A total of 67 measures appeared on the statewide ballot in South Dakota during the 20-year from 2000 through 2020 in South Dakota, of which, 43% (29 of 67) were approved by voters and 57% (38 of 67) were defeated.

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State court judge rules last year’s SD marijuana measure unconstitutional

On February 8, 2021, Hughes County Circuit Judge Christina Klinger overturned South Dakota’s 2020 marijuana legalization initiative. Klinger ruled that the measure violated the state’s single-subject rule. Klinger also ruled that the measure constituted a revision of the constitution rather than an amendment.

South Dakota voters approved Amendment A by 54% to 46% on November 3. The measure was designed to

  • legalize the recreational use of marijuana for individuals 21 years old and older, allowing individuals to possess or distribute up to one ounce of marijuana;
  • require the legislature to create a medical marijuana program pass laws allowing the sale of hemp;
  • tax marijuana sales at 15%;
  • allocate tax revenue to public schools and the state’s general fund; and
  • enact other regulations, including over home grow, marijuana business licenses, local control, and civil penalties for violations.

Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller filed a lawsuit in Hughes County Circuit Court seeking to block Amendment A from taking effect. Plaintiffs alleged that the measure comprises more than one subject and that the measure does not simply amend the constitution but, rather, revises the constitution and could only be put before voters by a constitutional convention.

Plaintiffs alleged that the measure concerns five subjects: legalizing marijuana; regulating, licensing, and taxing marijuana; licensing and regulating marijuana by political subdivisions; regulating medical marijuana; and regulation of hemp.

Miller said, “Our constitutional amendment procedure is very straightforward. In this case, the group bringing Amendment A unconstitutionally abused the initiative process.”

Defendants argued that all the provisions were essentially related. South Dakotans for Better Marijuana Laws, which backed Amendment A, said, “We are prepared to defend Amendment A against this lawsuit. Our opponents should accept defeat instead of trying to overturn the will of the people. Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year.” The group said they would file an appeal with the South Dakota Supreme Court.

Governor Kristi Noem (R) said, “Today’s decision protects and safeguards our constitution. I’m confident that South Dakota Supreme Court, if asked to weigh in as well, will come to the same conclusion.” Noem said in January, “I directed [petitioners] to commence the Amendment A litigation on my behalf.” This is the first time a state’s governor led an effort to overturn a voter-approved marijuana legalization measure.

In South Dakota, all citizen initiatives—both initiated constitutional amendments and initiated state statutes—must concern only one subject. South Dakota did not have a single-subject rule for ballot measures until 2018. Voters approved Constitutional Amendment Z on November 6, 2018. It enacted a single-subject rule for initiated constitutional amendments and legislatively referred constitutional amendments and required that constitutional amendments be presented so that multiple proposed amendments to the constitution be voted on separately. The state legislature also passed a bill in 2018—House Bill 1007—that enacted a single-subject rule for initiated state statutes.

Sixteen of the 26 states with a statewide initiative or veto referendum process have a single-subject rule.

Article XXIII of the South Dakota Constitution provides that a constitutional amendment “may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject.”

Article XXIII of the state constitution also establishes a process for constitutional conventions to propose revisions. It allows the state legislature through a three-fourths vote in both chambers or a citizen initiative approved by voters to call a convention. Convention members are then elected and can refer amendments or revisions to the voters through a majority vote.

South Dakota voters also approved a medical marijuana initiative on the November 2020 ballot. South Dakota was the first state to vote on both a recreational marijuana initiative and a medical marijuana initiative at the same election.

Fifteen states and the District of Columbia have legalized marijuana for recreational purposes: 12 states and D.C. through ballot initiatives, one state through a legislatively referred ballot measure, and two through bills approved by state legislatures and signed by governors.

The federal government has classified marijuana as an illegal controlled substance since 1970. Marijuana is a Schedule I drug under the Controlled Substances Act (CSA). As of 2020, the possession, purchase, and sale of marijuana were illegal under federal law.

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Governors flex agency reorganization muscles

Governors in two states recently issued executive orders aimed at reorganizing agencies of the executive branch—with different results.

The Vermont House of Representatives on February 5 voted 108-40 to block Vermont Governor Phil Scott’s (R) executive order that would have established a new state law enforcement agency. Scott’s executive order, issued on January 14, would have merged all of the state’s law enforcement divisions under a newly created Agency of Public Safety.

Legislators argued that the proposed agency merger raised concerns about costs and agency independence that would be better addressed through the legislative process.

Vermont legislators previously blocked two of Scott’s executive orders aimed at reorganizing executive agencies. One of these orders—a proposal to merge the Vermont Lottery Commission and the Department of Liquor Control—was later approved via legislation.

In a statement following the House vote, Scott expressed appreciation for lawmakers’ interest in pursuing the reorganization plan through legislation.

South Dakota Governor Kristi Noem (R) on January 19 issued a similar executive order that would restructure executive branch agencies by merging the Department of Agriculture and the Department of Environment and Natural Resources to form a new Department of Agriculture and Natural Resources (DANR). Noem argues that the merger will strengthen agriculture operations in the state while promoting conservation efforts.

The South Dakota State Legislature has the authority to oppose the merger, but no lawmakers had raised objections as of February 5.

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Crabtree replaces Youngberg in the South Dakota

Gov. Kristi Noem (R) appointed Casey Crabtree (R) to the South Dakota State Senate on June 19, one day after Jordan Youngberg (R) resigned to take a full-time position with the South Dakota State Treasurer’s office. Crabtree’s appointment to represent District 8 was effective immediately.

Crabtree will serve the remainder of Youngberg’s unexpired term, which ends on January 11, 2021. At the time of his appointment, Crabtree had already declared his candidacy for the District 8 seat. He is running unopposed in the Nov. 3 general election.

86 of 99 state legislative chambers nationwide are holding elections in 2020, including both chambers of the South Dakota State Legislature. Heading into the 2020 elections, Republicans hold a majority 61 chambers compared to Democrats’ 37. In the Alaska House, there is a power-sharing agreement between the parties as part of a coalition.

Republicans hold a supermajority in the South Dakota State Senate and the South Dakota House of Representatives, as well as a Republican state government trifecta.

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One South Dakota Supreme Court justice faces a retention election in November

One South Dakota Supreme Court justice, Steven Jensen, will face a retention election on November 3, 2020. He was appointed in 2017 by Governor Dennis Daugaard (R).

Currently, every justice on the court was appointed by a Republican governor.

The governor appoints the five justices of the supreme court through a hybrid nominating commission where neither the governor nor the South Dakota State Bar Association has majority control. The South Dakota Judicial Qualifications Commission is made up of seven members: two judges, three lawyers and two members of the public. The judges are elected by the Judicial Conference, the lawyers are chosen by the state bar association, and the members of the public are appointed by the governor.

When a vacancy occurs, the commission compiles a list of at least two names. The governor must then make his appointment from this list. Initially, justices serve for at least three years, after which they stand for retention during a regularly scheduled general election. If they are retained, justices serve terms that last eight years.

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South Dakota statewide filing deadline passes for independent candidates

On April 28, the independent filing deadline passed to run for elected office in South Dakota. Candidates filed for the following offices:

  • South Dakota State Senate District 25
  • South Dakota State Senate District 35
  • South Dakota House of Representatives District 17
  • South Dakota House of Representatives District 29

Any candidate for nonjudicial public office who is not nominated by a primary election may be nominated as an independent candidate by filing with the South Dakota Secretary of State or county auditor. Filing must be completed no earlier than 8 a.m. on January 1 and no later than 5 p.m. on the last Tuesday of April prior to the election.

An independent candidate’s certificate of nomination must be signed by registered voters within the applicable district or political subdivision. Any candidate for office in the state legislature must be a resident of the district for which he or she is a candidate.

All 35 state Senate seats are up for election in 2020, as are all 70 state House seats. South Dakota state senators and state representatives serve two-year terms, with all seats up for election every two years. South Dakota holds elections for its legislature in even-numbered years.

The primary is scheduled for June 2, 2020, and a primary runoff is scheduled for August 11, 2020. The general election is scheduled for November 3, 2020.

Entering the 2020 election, the South Dakota State Legislature has a Republican state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers. As of April 29, 2020, there are 21 Republican trifectas, 15 Democratic trifectas, and 14 divided governments where neither party holds trifecta control.