Voters in South Dakota approved a sweeping new government ethics law by referendum in November. The South Dakota state legislature just overruled them.
Can they do that?
Yes and no. A law passed by referendum is, in the end, a law; and laws can be repealed by the legislature. A lot of states have protections against this practice, which is called “legislative tampering.” South Dakota is one of 12 states that doesn’t. So if you think the people can band together and pass a law by ballot measure there, you’re only sort of right; if the people’s will goes against the will of the legislative majority, as in this case, right out the window goes the popular vote.
But the legislature did more. The bill, HB 1069, finishes off with the following language:
Section 35. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in
full force and effect from and after its passage and approval.
The declaration of an “emergency” does two things: it makes the bill active immediately upon passage, thus preventing the ethics commission from coming into existence even temporarily, and it prevents the people of South Dakota from launching a new referendum to veto the repeal and restore the ethics law.
I don’t think they can do this.
Under the South Dakota Constitution, some kinds of laws are subject to veto by popular referendum and some are not. Those laws protected from referendum are categorized as follows:
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.
The legislature doesn’t have the power to protect a law from referendum just by declaring an emergency. It has to fall under one of the two protected categories delineated in Section 1 above. This was laid out in Lindstrom v. Goetz (1951):
Only those laws which are not subject to the referendum, according to § 1 are subject to the emergency clause authorized by § 22. State ex rel. Richards v. Whisman, 36 S.D. 260, 154 N.W. 707, L.R.A. 1917B, 1. The same rule applies to municipalities. City of Colome v. Von Seggern Bros. Ludden, 56 S.D. 390, 228 N.W. 800. Whether a law or ordinance is subject to the referendum is a judicial question. If it is found that the law is not subject to the referendum, the legislative declaration of an emergency is conclusive. If it be found that the law is subject to the referendum, the declaration of an emergency is void, for then no emergency could exist.
The Legislature, in HB 1069, invoked the second category of protection. That’s what I don’t think they can do. The interpretation of what counts as “necessary for … support of state government” in South Dakota has traditionally been pretty broad, encompassing laws designed to enhance or even redistribute state revenue. But it’s not unlimited. Check this out, from “Restrictions on Initiative and Referendum Powers in South Dakota,” Lowe, Chip J., 28 S.D. L. Rev. 53 (1982-1983), p.61:
I don’t think you can say, with a straight face, that eliminating the independent ethics commission is an appropriation bill or a taxing measure. So their claim dies here: they can overrule the referendum, but they can’t prevent the public from overruling them right back.