Amendment C changes vote total needed for ballot issues that raise taxes

By Dana Hess

For the S.D. Newspaper Association

Constitutional Amendment C, on the June 7 primary ballot in South Dakota, would change the number of votes needed to pass ballot issues that raise taxes and fees. The increased number of votes would also apply to ballot issues that call for the expenditure of $10 million over five years.

Backers of the amendment, which they have dubbed the “taxpayer protection amendment,” say the bar for passing ballot issues that deal with raising taxes and fees should be 60% of the vote. Currently ballot issues pass with a 50% plus one majority.

Those who oppose the amendment say that it takes away the ability of citizens to create tax and fee legislation through ballot initiatives.

The amendment was introduced as House Joint Resolution 5003 in the 2021 legislative session. It was sponsored in the House by Republican Rep. Jon Hansen of Dell Rapids. It was approved in the House by a vote of 56-12 and in the Senate by a vote of 18-17. Originally intended for the November 2022 general election ballot, in the Senate the resolution was amended to put it on the primary ballot this June.

The ballot date change was offered by Republican Sen. Lee Schoenbeck of Watertown. The amendment’s foes note that if approved by voters, Amendment C would increase to 60% the number of votes needed for a Medicaid expansion initiative that’s on the November ballot.

Schoenbeck calls Medicaid the “flavor of the day,” saying that passage of Amendment C would protect voters from any number of special interests that seek to use ballot initiatives, constitutional amendments or referred measures to spend taxpayer dollars.

“On a ballot issue, some special interest goes out and gets the signatures and then they run ads in support of it,” Schoenbeck said. “Who’s got the interest to spend the money on the other side? Usually nobody.”

In the Legislature, new taxes or spending programs need a two-thirds majority to be enacted. According to Schoenbeck, Amendment C holds the passage of initiated measures that raise taxes or fees to a similar standard.

He explained that the Legislature must make budget trade-offs. As an example, Schoenbeck said that if lawmakers want to spend more money on nursing homes, there may be less money to spend on education. Special interests don’t take that approach when they place a tax measure on the ballot.

“It’s about special interests putting their spending issues or their tax issues on the ballot without regard to what the whole financial picture for the state looks like,” Schoenbeck said. “And that’s dangerous. There are consequences that they don’t tell people when they do that.”

Brendan Johnson, an attorney for the opponents of Amendment C, says that its passage would take away majority rule, the same majority rule that lawmakers use when they vote on the state budget. While new spending requires a two-thirds vote of the Legislature, the state’s budget is approved with a simple majority vote.

“This is the Legislature trying to say to the people that anytime that there is a tax or fee that they have to have 60%,” Johnson said. “That is not the same rule that applies to the Legislature. They do their appropriation and that’s what this would be, an appropriation.”

Passage of Amendment C would change forever South Dakota’s political legacy of citizen-backed ballot initiatives, according to Johnson.

“This is our right that we’ve had, as South Dakotans, since the beginning of our state’s history,” Johnson said. “For the first time, we have a Legislature that wants to take it away from the people of South Dakota so badly that they’re putting it on a June primary ballot when they know that the smallest percentage of South Dakota voters will come out to vote.”

The constitutionality of the amendment is the subject of a lawsuit that’s not likely to be resolved soon. Johnson said summary judgment arguments will be held after the June election. If Amendment C is approved, the lawsuit is likely to make its way to the South Dakota Supreme Court in the fall.

All registered voters are eligible to vote on Amendment C. The voter registration deadline is May 23. Absentee voting started on April 22 and continues until June 6, the day before the primary election.