Wild fight at Capitol ends wilder, as Noem issues orders on female sports, wants special session

Capitol News Bureau
KELO Pierre Capital Generic

PIERRE, S.D. (KELO) — People wondered Monday how the governor might turn a defeat into victory, after legislation that sought to prohibit people born as males from participating in girl’s sports in South Dakota’s K-12 schools and public universities died.

The answer came about 90 minutes later. Governor Kristi Noem announced she had used her authority to sign two executive orders that she said would protect fairness in girls’ and women’s sports at the K-12 and collegiate levels.

And she sent a letter to lawmakers that says she wants them back at the Capitol for a special session in a few months. The statement from her office said:

“Additionally, I will be working with legislative leaders to schedule a special legislative session in late May or early June. The special session will address this important issue, as well as others. The implementation of medicinal marijuana will require consideration of additional legislation. And the latest congressional spending bill may require legislative action once we fully understand its impact on our state budget.”

One order calls for the state Department of Education to issue a policy stating that only females based on their biological sex at birth “shall participate” in girls’ sports sanctioned by a school, school district or association.

The second order says the state Board of Regents, whose members she appoints to oversee South Dakota’s six public universities, and who opposed the legislation, should take “any and all steps necessary” to see that only females based on their biological sex at birth “should participate” in any girls’ or women’s athletic event that regents sanction.

Senate Democrat leader Troy Heinert had this response as he was leaving the Capitol Monday evening: “I thought Republicans didn’t like executive orders.”

All of that came after the state House of Representatives voted 45-24 to override the governor’s veto but came two ayes short of the 2/3 majority needed to send HB 1217 to the Senate to consider. That meant the legislation was dead.

Representatives earlier in the day voted 67-2 against accepting the style-and-form changes that the governor wanted. That set off another argument over the meaning of the South Dakota Constitution regarding the governor’s veto power, especially on what’s known as a style-and-form veto.

A style-and-form veto from the governor requires a simple majority — 36 in the House and 18 in the Senate — to accept the governor’s proposed changes. A governor’s regular veto that seeks to block a bill from passing requires a 2/3 majority — 47 in the House and 24 in the Senate — to override.

Noem in turn sent a followup letter that House Speaker Spencer Gosch said was difficult to understand. Her final paragraphs said,

“Given the House action, I cannot certify that the bill conforms with my specific recommendations. Therefore, my only option consistent with the constitution is the fail to certify the bill and to return it to you.

“Pursuant to the constitutional provision above, returning the bill is not a veto. Rather, the constitution provides that legislature’s failure to accept my recommendations requires that the bill be treated as if it was vetoed.”

Gosch in turn wrote a response that concluded:

“Notwithstanding your failure to certify this bill, your assertion that this is not a veto, having clouded the constitutional issue, the House of Representatives remains in recess waiting your clarification as to whether you have chosen to veto House Bill 1217.”

Meanwhile, a major wildfire threatening parts of Rapid City had the governor’s attention. She announced on Twitter she was leaving the Capitol to go there.

Several hours later, Gosch told House members the governor had rejected his response. He ruled Noem’s refusal to sign 1217 into law was a veto.

Gosch, speaking to a KELOLAND News reporter minutes after the decisive vote, noted that the governor had left the Capitol while the legislation was still in play. “She headed for the hills,” he said.

The House had initially approved the legislation 50-17 on February 24. But switching to no on Monday were David Anderson, Hugh Bartels, Sydney Davis, Lance Koth, Taylor Rehfeldt, Richard Thomason and Will Mortenson.

Lawmakers who weren’t present the first time took opposite sides Monday, as Arch Beal and Lana Greenfield voted yes and Oren Lesmeister no. Excused Monday was Jess Olson; she had voted no the first time.

The House outcome might not have mattered.

As representatives pushed green or red buttons at their desks at 4 p.m., the Senate was adjourning, as Senate President Pro Tem Lee Schoenbeck had warned earlier that afternoon. Senators had waited since 11 a.m. to see whether the House would send the matter their way to settle.

The Senate had voted 20-15 March 8 to approve the bill. That was four ayes short of the 2/3 needed for an override, however.

Schoenbeck acknowledged to reporters Monday that the legislative rules said the House could pass a resolution ordering the Senate to return, but he seemed confident that a majority of representatives would instead vote to adjourn too.

Governor Noem had put herself into a political corner back on March 8 when she tweeted, minutes after Senate passage of 1217, that she was “excited” to sign the legislation “very soon.”

But on March 19, she instead called for the style-and-form veto, late on a Friday afternoon, asking that its references to public universities be removed and proposing that they heavily rewrite or eliminate other parts. The following Monday, she announced formation of a new coalition with a website, Defend Title IX Now refers to the 1973 section of federal law that provides for equal educational opportunity in programs that receive federal financial assistance.

Noem’s attempt to change the conversation led to a week of criticism from conservatives, including state legislators and national groups, who wanted the legislation to become law. South Dakota’s two Republican U.S. senators, John Thune and Mike Rounds, had voted for an unsuccessful amendment earlier in March to require sex at biological birth to determine whether someone played sports as a girl or woman. State Representative Fred Deutsch tweeted Sunday that the governor needed help from a higher power:

“I ask you to please pray for @govkristinoem. Tomorrow is Veto Day. The day will probably define the rest of her political career. She has had enough bad advice from lawyers about the Fairness in Women’s Sports bill. I am praying she seek advice from a higher-up source, from the “King of Kings,” on what is right to do. It’s been scrutinzed by scores of legal experts from across SD and the nation. The bill is sound. It does exactly what the legislature intended. I pray she sees the wisdom in signing it and has the courage to do so.”

The prime sponsor of 1217, Rep. Rhonda Milstead, told House members during the final debate Monday that the South Dakota High School Activities Association was doing “a poor job” with its 2013 procedure that allows students to play in sports opposite of their biological sex at birth.

One transgender athlete has played in a girls’ sport, according to the association’s executive director, Dan Swartos. Warned Milstead, “If we do not pass this now, the small numbers will increase.” She asked whether the 105 members of the Legislature or the ACLU, NCAA and South Dakota Chamber of Commerce should decide what was right for fairness of women’s sports in South Dakota.

Noem had explained a week ago during her Sioux Falls ‘Defend Title IX’ media availability that she was trying to build a coalition to pressure the NCAA for change, rather than taking the collegiate sports association on in a federal courtroom, where she said lawyers had warned she had a low chance of success.

Rep. Taffy Howard nonetheless argued Monday for the override. “Moments like this shape history,” she said. “The time is now for us to take legislative action.” She added, “Sometimes litigation is necessary.”

Rep. Steven Haugaard said the legislation was “essentially the same” as a bill signed into law in Arkansas. “So it’s not new ground,” the lawyer said, noting Arkansas is in the same federal appeals circuit as South Dakota “So if litigation is going to take place, we’re in good company.”

Haugaard said he emailed the governor Sunday and suggested she should withdraw her letter. For her to run and provide some kind of cover with the letter she sent back to the House on Monday was not leadership, he said.

House Democrat leader Jamie Smith afterward described the matter from the perspective of his caucus. “This was a political bill. This was a political football,” he told statehouse reporters. Every House Democrat voted against it each time it came up.

Gosch afterward stuck to his argument that Noem had gone much too far with her style-and-form changes. He said there hadn’t been fights like Monday’s on the prior 89 that governors had issued. “The constitution is clear,” he said.

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