S.D. Supreme Court says Dakotans for Health can’t refer Legislature’s ‘60%’ ballot measure

Capitol News Bureau

PIERRE, S.D. (KELO) — A group seeking to expand Medicaid eligibility in South Dakota through the ballot box wanted to use the state’s voters to delay another proposed constitutional amendment that, if passed, could frustrate the expansion effort.

The South Dakota Supreme Court, in a unanimous opinion released Thursday, said no to the referendum attempt by the Dakotans for Health ballot-measure group.

The case had many moving pieces.

Republican state legislators this year crafted a proposed constitutional amendment for voters to decide. HJR 5003 if passed would require at least 60% support from voters in future elections for passage of any ballot measure proposing higher taxes or fees, or spending $10 million or more over 5 years.

The 60% measure, after Republicans in the the House of Representatives had approved it, called for voters to consider it at South Dakota’s November 2022 general election.

But when it came up in the Senate, Republican Lee Schoenbeck of Watertown offered an amendment to change the timing, so that voters would decide it in South Dakota’s June 2022 primary election. Schoenbeck’s amendment passed on an unrecorded voice vote, and Senate Republicans then approved it 18-17. House Republicans followed by agreeing to the Senate version.

Dakotans for Health, chaired by Democrat Rick Weiland of Sioux Falls, had already received approval to circulate its initiative petitions for Medicaid expansion among registered voters for signatures.

The group needs to submit to the South Dakota secretary of state office at least 16,961 valid signatures on its initiated law proposal and at least 33,921 valid signatures on its constitutional amendment proposal no later than November 8, 2021, to be on the November 2022 ballot.

An official estimate of the proposed fiscal impact says, “The total annual estimated cost of Medicaid expansion is $301,800,000 with the state’s share of that cost being up to $20,800,000.”

There is a third Medicaid-eligibility expansion proposal from a coalition led by the South Dakota Association of Healthcare Organizations.

So here’s the practical effect of what Republican lawmakers did with the the 60% requirement: If voters approve it, the 60% threshold would apply to any Medicaid proposal on the November 2022 ballot. State law says the effective date would be July 1, 2022, for the 60% if it passes.

Weiland, who’s run several times as a Democrat candidate for U.S. House and U.S. Senate and was a long-time aide to then-U.S. Senator Tom Daschle, wanted to attempt a referendum on the Republicans’ 60% proposal as a way to delay it past the June 2022 primary.

The Supreme Court rejected that attempt in the Thursday opinion. It stated in part:

“The Legislature’s proposed amendment will be decided in the June 2022 primary
election, when the voters will either adopt or reject the amendment proposed by
HJR 5003. Thus, the petition by Dakotans for Health seeking mandamus relief
must fail because HJR 5003 is not a law enacted by the Legislature, and as a result,
there is nothing in HJR 5003 to refer to the electors at the November 2022 general
election.”

Weiland’s group sued Secretary of State Steve Barnett after he refused to accept paperwork seeking a referendum on the 60% proposal. But the unsigned opinion concluded Barnett acted correctly:

“HJR 5003 is not a law enacted by the Legislature. It does not contain
an enacting clause and was not submitted to the Governor for signature or veto. It
is a joint resolution proposing an amendment to Article XI to the voters of the state
pursuant to Article XXIII, § 1. Only if approved by the voters will Article XI, § 16
become a part of the Constitution. S.D. Const. art. XXIII, § 3. The Secretary of
State correctly determined that HJR 5003 does not constitute a law subject to
referral and that he had no authority to file the petition.”

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