Initiative and referendum decision

There’s been plenty of press on the South Dakota Supreme Court’s unanimous decision to allow on the November ballot efforts to repeal video lottery (PDF file) and a cell phone tax (PDF file). At bottom, the Court overruled a 1995 decision, Christensen v. Carlson, indicating that initiative could not be used to repeal existing law.

Regardless of the result, one of the more fascinating things in the lengthy decision (PDF file) is its extensive review of the history of initiative and referendum in South Dakota. Chief Justice David Gilbertson traces the development of this unique aspect of South Dakota from the Dakota Territory Constitutional Convention in 1885 through the use of initiative and referendum and the cases interpreting it. The bottom line, the Court concludes, is that “the people’s power to propose measures includes the power to propose repeal of existing laws.”

It should also perhaps be noted that the Court found “no improper motive” in the actions of the secretary of state and attorney general in initially determining the measures could not go on the ballot. “As constitutional officers of the State they were bound to follow Christensen, which, although it had a strong dissent, was still the latest decision from this Court on the subject.”

For someone like me with a interest in law and history, there’s just something extra and refreshing about court decisions that require digging into the dusty books in the corners of the law and university libraries and applying that history to today’s political questions. To paraphrase a Frank Zappa line, history is not dead; it just smells funny.

Judges have an obligation to reexamine their views when superior proof is brought forth to challenge previous understandings. For me, such is the case here.

Justice John Konenkamp, concurring opinion in Brendtro v. Nelson

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