OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz


Commentary

The South Dakota Referendum on Abortion: An Alternative to Court Review?

Earlier this year the South Dakota legislature passed and the governor signed a stiff anti-abortion bill, HB 1215,[1] entitled the "Women's Health and Human Life Protection Act.[2] The bill had strong bi-partisan support, collecting over two-thirds of the vote in both chambers.[3] The act is now "Referred Law 6" on the state's November ballot[4]; South Dakota citizens have the chance to throw the act out or affirm it. The popular vote on the anti-abortion act is unique and attracting national attention.[5] How the act came to be included on the state ballot merits investigation and offers valuable lessons for other states. The South Dakota act declares that physicians and others who perform abortions commit a crime unless the procedure is "designed or intended to prevent [the] death of a pregnant mother."[6] Anyone aiding in contraception is not included if the method is administered "prior to the time when a pregnancy could be determined."[7] The Governor of South Dakota, upon signing the bill into law, stated that the sponsors of the act anticipated a court challenge would be filed before the act was slated to become effective.[8] The act's effective date was set by law at ninety days after the adjournment of the legislative session, July 19th, 2006. The Governor noted that a federal district court was likely to enjoin the act before the effective date.[9] The purpose of the legislation was to offer the Supreme Court, hearing an appeal from the injunction, an opportunity to overturn its landmark decision in Roe v Wade.[10] The Governor and sponsors were wrong. Opponents of the act chose an alternative route to block the implementation of the act. They collected signatures for a popular referendum.[11] South Dakota is one of twenty-four states that has a constitutional provision reserving to citizens the right to submit legislation to a popular vote.[12] In South Dakota, opponents of a new act have ninety days after the adjournment of the legislative session to collect sufficient signatures of "qualified electors" to put the new law on the ballot.[13] The number required for a valid petition is five percent of the total vote in the last Governor's race.[14] A popular referendum for HB1215 required 16,728 signatures.[15] A petition with enough signers automatically suspends the effective date of the contested act. [16] Opponents of the act easily met the petition threshold, collecting over 38,000 signatures.[17] At the next general election, in November of this year, the citizens of South Dakota will vote to decide whether the act will become law. A September 20th Zogby poll was unable to predict the outcome of the vote; it was a statistical dead heat.[18] A survey of 531 voters found 44 percent for HB 1215 and 47 percent against with a margin of error of 4.3 percent. The poll also collected information from those who intended to vote no and found that forty percent of them would change their vote if the act exempted abortions if a woman was the victim of rape or incest.[19] In other words, an anti-abortion act that exempted abortions for victims of rape and incest as well as for the potential death of the mother would easily secure an affirmative popular vote. The South Dakota experience offers two lessons. First, the South Dakota referendum would not have been possible had the South Dakota legislature included a routine "emergency clause" in the act. Referenda are rare because of the ubiquitous use of such clauses and we should, perhaps, be less tolerant of legislative use of the exemption. And second, the referendum process is an alternative method of deciding controversial issues that, if decided by our courts, are an uncomfortable stretch of constitutional doctrine. We should, perhaps, encourage a more widespread use of the referendum process on these hot button issues. I consider each issue in order below. All twenty-four state constitutions that provide for a popular referendum procedure have an exception for legislative declarations of urgency, known as an "emergency clause," and a second exception for funding necessary for governments and their institutions. The South Dakota constitution's language on referenda is typical:
[T]he people expressly reserve ... the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health, or safety, support of the state government and its existing public institutions ....[20]
When funding government institutions is not in issue, as is true of an anti-abortion act, a legislature that wants to preclude a referendum on a new act add routinely adds an emergency clause to the act, using language that parrots the constitution's exemption. An overly cautious legislature adds some facts in the preamble to the act that support the legislature's finding of need for immediacy. Popular referenda are rare because the legislatures of the twenty-four states that have the constitutional process routinely attach an emergency clause (or, if available, the second "support of public institutions" exemption) to all their new acts. The use of the exemptions has come to be normal practice. The South Dakota legislature, however, did not include an emergency clause in the Women's Health and Human Life Protective Act, leaving the act vulnerable to popular referendum. The South Dakota constitution, like those of about half the states with a popular referendum, requires a two-thirds vote of both chambers to advance the effective date of an act based on emergency[21] and the super-majority vote requirement may apply to the use of an emergency clause as well. The Women's Health act had the votes sufficient to pass the higher threshold, however, so the language would not have been disabling to including such a clause in the act. Apparently the legislature, anticipating an immediate court challenge before the effective date of the act, was not concerned about a referendum. Indeed, the Senate refused an amendment to refer the bill to a popular vote in lieu of a legislative vote, a procedure known as a legislative referendum.[22] If the South Dakota legislature had included an emergency clause in the act, the South Dakota courts would have respected the clause and enjoined any effort to put the act on the ballot. Consistent with the case law from other states, South Dakota courts would defer to the legislative declaration.[23] The Supreme Court of Washington has, for example, held that legislative declarations of emergency are "conclusive" unless "obviously false and a palpable attempt at dissimulation."[24] There have been some vigorous judicial dissents to such deference, the most notable in an amusing case in which a city declared an emergency need for a new sports stadium, but the dissents are isolated and ineffective.[25] The South Dakota experience suggests that excessive judicial deference on emergency clauses, should other states pass anti-abortion legislation, would be unfortunate. Courts should have take a more careful look at the bona fides of an emergency declaration under a less restrictive test than what is, in effect, "the legislature must, beyond a doubt, be lying." The second lesson of the South Dakota experience with its popular referendum on the anti-abortion act is the salutatory effect of a popular vote, with all its public lobbying and discussion, on the resolution of controversial matters. Some believe that abortion would not be such a divisive issue if the matter was subject routinely to the popular vote.[26] Those who lose the vote may feel, first, less excluded from the resolution of the issue (they had their chance at persuading their fellow citizens) and, second, less desperate about the conclusion (they could try again in later elections). These beliefs could translate into less polarization around the issue at all levels of political discourse. The nuanced views of the South Dakota voters, refusing perhaps to support the act crafted by their elected officials because it omits desired exceptions, gives some succor to the position.[27] Of course, those who currently hold the winning hand in the Roe v Wade debate will not want to give the "rabble" the power to decide conclusively the scope of a cherished individual right. In any event, the South Dakota popular vote is a success even before it has been held. The legislatures of other states should take heed and, should they desire to legislate on abortion, put the matter to a popular vote voluntarily in a legislative referendum or, by omitting an emergency clause in the legislation, permit their citizens to petition for a popular referendum. [1] Monica Davey, South Dakota Bans Abortion, Setting Up a Battle, N.Y.Times, March 7, 2006 [2] HB 1215, S.D., 81st Sess,, Leg. Assembly, 2/17/2006 (hereinafter HB 1215). [3] Monica Davey, Ban on Most Abortions Advances in South Dakota, N.Y.Times, Feb. 23, 2006. [4] Gretchen Reuthling, Petitions Challenge South Dakota Abortion Ban, N.Y.Times, May 31, 2006. [5] Monica Davey, Ripples for Law Banning Abortion Spread Through South Dakota, N.Y.Times, April 16, 2006. [6] HB 1215, Sec. 2 & 4. [7] HB 1215, Sec.3. [8] South Dakota Governor Signs Abortion Ban: Nearly All Operations Outlawed in Direct Challenge to Roe v Wade, Associated Press News Release, 8:57 am, March 7, 2006. [9] AP News Release, March 7, 2006. [10] Roe v Wade, 410 U.S. 113 (1973). [11] Gretchen Reuthling, Petitions Challenge South Dakota Abortion Ban, N.Y.Times, May 31, 2006. [12] See Initiative & Referendum Institute at the University of Southern California, http://www.iandrinstitute.org/Quick%20Fact%20-%20What%20is%20I&R.htm. [13] S. D. Const. Art. III, Sec. 1. See also S.D. Codified Laws 2-1-4(2006). [14] S.D. Codified Laws 2-1-5 (2006). [15] BBC News, S. Dakota Abortion Ban Challenged, March 24, 2006, http://news.bbc.co.uk/2/hi/americas/4842956.stm. [16] S.D. Const. Art. III, Sec. 1 [17] Reuters, Petition Filing Could Halt S. Dakota Abortion Ban, May 30, 2006, http://www.msnbc.msn.com/id/13052111/. [18] South Dakota Abortion Ban in Statistical Tie for Passage, Dakota Voice, Sept. 28, 2006,http://www.dakotavoice.com/200609/20060928_1.html [19] South Dakota Abortion Ban in Statistical Tie for Passage, Dakota Voice, Sept. 28, 2006,http://www.dakotavoice.com/200609/20060928_1.html . [20] S.D. Const. Art. III, Sec. 1 [21] S.D. Const. Art. III, Sec. 22. [22] Monica Davey, Ban on Most Abortions Advances in South Dakota, N.Y.Times, Feb. 23, 2006. [23] E.g., Culhane v Equitable Life Assur. Soc. of U.S., 65 S.D. 337, 274 N.W. 315 (1837). [24] City of Tacoma v Luvene, 827 P.2d 1374,1387 (Wash. 1992)(quoting Hamilton v Martin, 23 P.2d.1,4 (Wash. 1933)). [25] CLEAN v State, 130 Wash.2d 782, 918 P.2d 1054, 1074-75 (1996)(Sanders, J., dissenting). See also J. Michael Median, The Emergency Clause and Referenda in Oklahoma: Current Status and Needed Reform, 43 Okla. L. Rev. 401 (1990). [26] For an example of the debate see Robert P. George, Book Review: Law, Democracy and Moral Disagreement, 110 Harv. L.Rev. 1388 (1997)(reviewing Amy Gutmann and Dennis Thompson, Democracy and Disagreement: Why Moral Conflict Cannot Be Avoided in Politics, and What Should Be Done About It (1996) and Cass R. Sunstein, Legal Reasoning and Political Conflict (1996)); see also the Remarks of Justice Antonin Scalia, http://www.wtopnews.com/index.php?nid=116&sid=944299 (debate with Nadine Strossen, President of the American Civil Liberties Union). [27] South Dakota citizens are parsing the act's exemptions and would prefer a version that broader exclusions. The elected officials may find that they did not have an accurate read on the views of their constituents. The very popular Governor who signed the bill, Mike Rounds, has seen his approval rating drop dramatically. http://www.surveyusa.com/client/PollTrack.aspx?g=05fe28b2-889d-4a35-be84-e65152253cd0.

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

more commentary...

In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

more EL@M in the news...

Info & Analysis

U.S. Supreme Court strikes down aggregate campaign contribution cap

The U.S. Supreme Court issued its opinion today in McCutcheon v. FEC, striking down aggregate limits on political campaign contributions but leaving in place limits on contributions to individual candidates.

more info & analysis...