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South Dakota State Federation of Labor AFL-CIO v. Jackley

July 21, 2010

SOUTH DAKOTA STATE FEDERATION OF LABOR AFL-CIO, APPLICANT AND APPELLANT,
v.
MARTY JACKLEY, SOUTH DAKOTA ATTORNEY GENERAL, AND CHRIS NELSON, SECRETARY OF STATE, RESPONDENT AND APPELLEE, RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA HONORABLE JOHN L. BROWN Judge.

The opinion of the court was delivered by: Gilbertson, Chief Justice

CONSIDERED ON BRIEFS July 13, 2010

[¶1.] The narrow issue on appeal is whether the Attorney General's ballot explanation of proposed Constitutional Amendment K complies with the requirements of SDCL 12-13-9. The trial court upheld the ballot explanation and denied South Dakota State Federation of Labor AFL-CIO's (AFL-CIO) request for a writ of certiorari. We affirm.

FACTS

[¶2.] Pursuant to Article XXIII, §1 of the South Dakota Constitution, amendments to South Dakota's Constitution "may be proposed by initiative or by a majority vote of all members of each house of the Legislature." Under this authority, the South Dakota Legislature in its 2010 session enacted Senate Joint Resolution 3 "[p]roposing and submitting to the electors at the next general election an amendment to Article VI of the Constitution of the State of South Dakota, relating to the right of individuals to vote by secret ballot." Article VI of the South Dakota Constitution is the South Dakota Bill of Rights. The text of proposed Constitutional Amendment K, which will become §28 of Article VI if passed, provides:

The rights of individuals to vote by secret ballot is fundamental.

If any state or federal law requires or permits an election for public office, for any initiative or referendum, or for any designation or authorization of employee representation, the right of any individual to vote by secret ballot shall be guaranteed.

[¶3.] On May 12, 2010, the Attorney General delivered an explanation of proposed Constitutional Amendment K to the Secretary of State. SDCL 12-13-9. It provides:

ATTORNEY GENERAL 2010 BALLOT EXPLANATION CONSTITUTIONAL AMENDMENT K Title:

An Amendment to Article VI of the South Dakota Constitution relating to the right of individuals to vote by secret ballot.

Explanation:

The proposed amendment to the Constitution would guarantee a right to vote by secret ballot to prevent others from knowing how a person voted. This right would apply to elections of public officers, adoption of initiated or referred measures, and elections to designate or authorize employee representation, such as elections concerning unions.

A vote "Yes" is for guaranteeing a right to vote by secret ballot.

A vote "No" is against the constitutional amendment.

[¶4.] The AFL-CIO filed an application and affidavit for writ of certiorari challenging the Attorney General's ballot explanation for proposed Constitutional Amendment K and asking that proposed Constitutional Amendment K be omitted from the ballot for the November 2, 2010 general election. The trial court concluded that the Attorney General did not exceed his statutory authorization under SDCL 12-13-9 and upheld the Attorney General's ballot explanation for proposed Constitutional Amendment K. Accordingly, the trial court denied AFL-CIO's request for a writ of certiorari.

ANALYSIS AND DECISION

[¶5.] The full text of a proposed constitutional amendment is not printed on the election ballot. Instead, "[t]he title, explanation, recitation, place for voting, and statement as required by this chapter shall be printed on the ballot in lieu of the law, measure, constitutional amendment, or other question submitted to a vote of the people." SDCL 12-13-11. "The attorney general shall prepare each statement, title, explanation, and recitation." SDCL 12-13-1.

[¶6.] Prior to July 1, 2006, SDCL 12-13-9 provided:

Before the fourth Tuesday in July, the attorney general shall deliver to the secretary of state the statement, the title, the explanation, and a clear and simple recitation of the effect of a "Yes" or "No" vote. The explanation shall state succinctly the purpose and legal effect of the proposed amendment to the Constitution, the initiated measure, or the referred law. The explanation shall be a clear and simple summary of the issue and may not exceed two hundred words in length. On ...


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