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When citizen-initiated laws, legislatures collide: Who gets the final say?

by Jon Davis ~ February 2017 ~ Stateline Midwest »
Many states offer citizens a direct opportunity to create laws or constitutional amendments via the ballot box. Those that do also allow legislators to amend or even overturn those initiatives, a process generally known as “legislative intervention.”
The most recent example of that occurred in early in 2017 in South Dakota, where lawmakers overturned “Initiated Measure 22.” Approved 52 percent to 48 percent in the November general election, the measure called for revising state campaign finance and lobbying laws, banning lawmakers from accepting more than $100 annually from lobbyists, publicly funding campaigns, and creating a state ethics board to oversee that process.
But in January, HB 1069 was introduced to repeal the referendum and soon made the desk of Gov. Dennis Daugaard, who has that voters were “hoodwinked by scam artists who grossly misrepresented these proposed measures.” He signed the repeal into law in early February.
This isn’t the first time South Dakota’s Legislature has overridden a decision by its voters. In 2014, Measure 18, raising the minimum wage to $8.50 per hour (with an annual adjustment for inflation), was approved 55 percent to 45 percent.
Lawmakers then amended it to exclude workers under age 18 from the increase (SB 177). But in a veto referendum that appeared on the 2016 ballot, South Dakotans overturned the bill (71 percent to 29 percent), thus eliminating the legislatively established youth minimum wage.
Overturning a ballot initiative is akin to a judge overturning a law or ordinance, says South Dakota Sen. Arthur Rusch, who, not coincidentally, is also a former judge. As a judge, he has ruled against popular countywide initiatives or zoning laws if they were at odds with the law. And he says that legislators have to be prepared to sometimes take positions that might be unpopular.
“I don’t see my election as a ‘gift.’ I see it as a contract with voters that I will listen to and consider their views, but ultimately, I have to make a decision,” he says. “I never viewed that contract as being a rubber stamp.”
This type of back and forth between state legislatures and voters (via the ballot proposals they pass) also occurs in other Midwestern states that allow for some form of “direct democracy.”
This year in North Dakota, for example, legislators unanimously voted to delay implementation of the state’s new voter-approved medical marijuana program. In December, Michigan legislators approved SB 1187, which would allow the hunting of gray wolves in the state’s Upper Peninsula, if federal protections of the animal are ever discontinued. The law also includes a $1 million appropriation, which makes it immune from being overturned by a referendum.
Ohio legislators in 2016 passed a medical marijuana bill (HB 523, signed by Gov. John Kasich), as signatures were being gathered for a ballot initiative that many legislators saw as pseudo-recreational. The legislation also followed in the wake of a failed November 2015 legalization initiative to allow cultivation, use and sales under limited circumstances.
And this past November, Nebraskans passed a “veto referendum” that overrode a decision by the Unicameral Legislature to eliminate the death penalty. Michigan, North Dakota and South Dakota are the only other Midwest states to have a “veto referendum” option.


Capital Closeup is an ongoing series of articles focusing on institutional issues in state governments and legislatures.