Goodwin Suggests Impracticable Judicial Prior Review of Initiatives – Dakota Free Press
My radar pings sharply as Republicans propose further revisions to the initiative’s rules and procedures. Republican Rep. Tim Goodwin (R-30/Sheridan Lake) told KELO-TV that noting that the court overturned the pot-legalization of Amendment A after the election (at the governor’s behest), and given of the current litigation over Amendment C, considering this would offer an invoice require courts to review electoral measures before they are placed on the ballot:
Future legal challenges against Amendment C also involve Republican lawmaker Tim Goodwin. Rapid City’s representative told KELOLAND News that something had to change so that electoral measures would be subject to a higher legal threshold before the vote, rather than being challenged after the votes were counted.
“You go to the vote and it doesn’t count,” Goodwin said. “They had to wait a year and a half before what they voted for is legal or illegal. That’s wrong. This is not a democracy.”
… The state’s one-subject rule offloads much of the burden on the court system after voters vote one way or the other. Goodwin said it was a recipe to upset people and not vote in elections.
He said he would be willing to sponsor a bill to force the court system to ensure electoral measures are legal or not when they go into effect.
“It’s not a party issue. It’s just realistic common sense stuff,” Goodwin said. “When people vote for it, their vote counts and they don’t go to court” [Eric Mayer, “‘That’s Not Democracy’: Lawmaker Concerned About Amendment C Legal Challenges,” KELO-TV, 2022.04.25].
Actually, Representative Goodwin, this is democracy as we have structured it. Legislators – and that includes citizens acting as legislators under the initiative process – do not need to seek approval from courts to legislate. The judiciary does not actively intervene in the legislative process; The judiciary only responds to complaints from parties who have to prove that they have been harmed by certain products of the legislative process.
Representative Goodwin, a staunch supporter of legislative prerogative, can make this remarkable statement in favor of an activist judiciary only because he distinguishes the popular initiative process as distinct from, and inferior to, the clubby legislative process in which he exercises his influence. Requiring judicial review of initiatives before the election would make it impossible to put initiatives on the ballot in a timely manner. Keep in mind that the final resolution of the Amendment A lawsuit is one year from filing in November 2021, through the district court ruling in February 2021, to the presentation of the Supreme Court’s arguments in April 2021, through to the final ruling of the state Supreme Court in November 2021 lasted.
The judicial review of proposed initiatives must not be in a hurry. It can’t be the extraordinarily bad policies of the Republicans (including Goodwin), enacted in 2021 to give a forgetful Secretary of State extrajudicial powers to oppose electoral measures on an uninformed whim. Goodwin may think that having a people’s vote overturned by the courts is discouraging and anti-democratic, but he would thwart democracy even more if he created a pre-election fast lane that denied citizens the opportunity to vote choosing fewer fees or even petitioning process than what they are enjoying now.
Overriding the voters’ will expressed at the ballot box is a serious act that can only be undertaken if the will of the voters is causing serious constitutional damage and can only be carried out after thorough due process. At least as many due processes are required to completely prevent this utterance, blocking votes or petitions.
Fourteen bars were proposed for the 2022 election. To review each measure with the same scrutiny that the South Dakota courts gave Amendment A would take fourteen years. If we were to require the judiciary to review each voting measure before it is circulated and placed on the ballot, and if the judiciary had reviewed each voting measure in the order in which its final text was received by the Secretary of State, amendment would be C has been fourth in line for review (Dakotans for Health filed two Medicaid measures on November 5 and November 16, 2020; the League of Women Voters filed their final re-election initiative on March 5, 2021; the legislature delivered HJR5003, the precursor to Amendment C, to the Secretary on March 9, 2021). If the judiciary had given each measure the same attention as Amendment A, they would not have got around to approving Amendment C for the vote until after the 2024 general election.
Representative Goodwin has adopted former Speaker G. Mark Mickelson’s maxim that legal opinions may differ tuned to the several measures that he was warned violate the constitution and which were later overturned in court. If Representative Goodwin were willing to subject bills in the legislature to the same kind of scrutiny that he proposes for ballot measures, he would be at least philosophically consistent, even if he stalled the practical process of legislation.
Perhaps MP Goodwin will review the 2017 Initiative and Referendum Task Force proposals and revive the idea of creating a Citizens Initiative Review Committee, not to delay initiatives or prevent them from voting, but to educate voters about the initiatives , to which we come voting. But this review should come Citizensnot just any branch of government that the initiative process is designed to review and balance.
A judicial preliminary examination of all legislative proposals is not feasible and violates the separation of powers. Forcing all election-issue supporters to argue the constitutionality of their actions in court to gain access to the vote would result in further delays and increased costs (supporters would have to advocate for this process) for the initiative process, further crowding out responsive grassroots activism and Leaving the initiative process in the increasingly exclusive playground of wealthy special interests. (Wait, this sounds familiar….) Trusting the electorate is a more sensible and practical approach: let the electorate make the first attempt to determine whether an initiative is constitutional, let alone a practical, moral, or otherwise meritorious initiative. If they err and vote for an initiative that is unconstitutional, the subsequent overturning of that initiative by a court will be more instructive and useful for future policy-making than the inevitably hasty and shoddy prior review that MP Goodwin, the already overly long and overcomplicated initiative to impose process.