PIERRE, S.D. — A cat's cradle of direct democracy filings is spinning in South Dakota.
And it's mostly over Medicaid expansion.
Earlier this month, the state's Legislature, through a tool known as a House Joint Resolution, sent a proposed constitutional amendment to voters that would heighten the wall from a simple majority of 51% to three-fifths' share, or 60%, that all constitutional amendments requiring a $10 million state spend must pass at the ballot box to become enshrined as law.
Earlier this month, Senate Pro Tempore Lee Schoenbeck asked to suspend the rules to pass an amended HJR 5003 — putting the vote on the less-watched June 2022 primary election than the November 2022 general election — by arguing for a protection against initiated measures pushed by groups "mostly not from here."
One Republican senator from Rapid City, Julie Frye-Muller, in opposition to Schoenbeck's amendment, observed, "If this is something that's already in the pipeline, the Medicaid expansion, we should not interfere with that part."
Days later, proponents of one of the two campaigns to bring a proposal to expand Medicaid to voters in the November 2022 election cried foul. Dakotans for Health filed paperwork with Secretary of State Steve Barnett's office calling to "refer" HJR 5003 to a vote of the people.
But Barnett's office has refused to approve the referral, saying HRJ 50003 "does not qualify," and now Dakotans for Health are asking the South Dakota Supreme Court for an emergency ruling.
"This is like putting on 10-pound weights in a boxing glove and jumping in the ring," Rick Weiland, Dakotans for Health co-founder, said in a call with media this week.
While the legal question over whether they can challenge the resolution is relatively new, the tool by which voters can object to Pierre's laws is old.
In 1898, South Dakotans amended the constitution for referring laws to the voters. Most recently in 2016, citizens used a referred law mechanism to overturn the Legislature carving out youth from minimum wage requirements.
In paperwork filed with the court, Dakotans for Health point to various actions by county boards that have been referred to voters, including in 2003 when the Supreme Court ruled that Hutchinson County should have a countywide say on whether a 3,200 hog farm near Freeman, S.D., should get a conditional use permit.
But Dakotans for Health counsel Jim Leach acknowledges he's unaware of a fight over referring legislative resolutions to a vote by citizens.
"He (Barnett) says they're not laws and you can't refer them," Leach said in a phone interview. "And our point is, it's legislative action."
According to the state's constitution, "laws subject to petition" include "[a]ny law which the Legislature may have enacted." But even the Supreme Court agrees that means "resolutions," too, the task wouldn't be over for Dakotans for Health. They'd then need to collect at least 5% of the state's voters — more than 16,000 signatures — by the end of June to put the measure on the 2022 ballot.
Hypothetically, if voters concurred with the terms of HJR 5003, including the "primary" vote stipulation, they'd get a second bite of the apple nearly two years later in the June 2024 primary.
By Dakotans for Health's hope, by then the state's voters — even a simple majority — would already have approved Medicaid expansion, which would cost the state in excess of $10 million but, supporters argue, would bring millions in savings by expanding eligibility for the popular federal program.
"Let the people be heard," said Leach, on Monday. "But don't try to just make this decision with a third of registered voters."