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2004 Pros and Cons and Attorney General Explanations

2004 Ballot Question Pamphlet - Constitutional Amendment A

Compiled by the Office of Secretary of State Chris Nelson

Constitutional Amendment A

Title:  An amendment to Article V, section 7 of the South Dakota Constitution, providing for the merit selection of circuit court judges.

Attorney General Explanation

Under the Constitution, circuit court judges are elected on a non-political ballot for eight year terms.  The Governor appoints judges to fill vacancies for the balance of unexpired terms.  Nominees for vacancies are selected by the judicial qualifications commission. 

            Amendment A would change the Constitution by establishing an appointment and retention election procedure.  New judges would be appointed by the Governor from nominees selected by the judicial qualifications commission.  Judges would be subject to a retention election on a non-political ballot three years after appointment, and every eight years after that, by the voters of the circuit the judge represents. 

            A vote “Yes” will change the Constitution.

            A vote “No” will leave the Constitution as it is.

Pro -- Constitutional Amendment A

There is a critical difference between the work of a judge and the work of other public officials.  It is the business of legislators and executives to be advocates on issues and promote agendas.  It is the business of judges to be neutral and fair in applying the law.  The duty of a judge is to provide those appearing before him or her, an even-handed, unbiased and impartial forum for the resolution of their disputes.

In the past South Dakota has had judicial election laws to minimize the influence of money and special interest groups on judicial elections.  Recent Federal Court decisions have rendered many of these laws unconstitutional.  As a result, South Dakota’s judicial election system is broken.  Merit selection as proposed in this amendment creates an election method where merit and qualifications, not money and special interest groups, will determine who will be South Dakota’s judges.  Money and special interest groups could have a significant, detrimental impact on the independent judiciary potentially resulting in activist judges with specific agendas.

This amendment will also insure that all circuit judges will be determined to be qualified by the Judicial Qualification Commission.

Constitutional Amendment A received broad bi-partisan support in the 2003 South Dakota legislature.

Merit selection is presently used in selecting Supreme Court Justices in South Dakota.  This system for Supreme Court Justices was previously adopted by the voters of South Dakota in 1980 and has served the state well. 

Submitted by:  David R. Gienapp, N.Summit, , SD 57042.  Third Judicial Circuit Court Judge.

Con -- Constitutional Amendment A

    Please look this ballot measure over carefully.   Amendment A affects our current election process to select Circuit Court Judges in 2 significant ways.

     1.  Amendment A strips away our constitutional right to vote for the candidates of our choice, and gives control to an appointed  

Currently, voters are allowed to select our judges through the ballot box.  Lawyers must run for the office of circuit court judge, and they must campaign.  They must convince us they are the best candidate and ask for our vote.  We voters get to know these candidates, and currently we elect who will preside over the courts in our towns and cities.  We decide who will make the decisions that may or may not affect our children, our families, or our businesses.  Amendment A destroys this election process.

  1. Amendment A takes away our choice of candidates.

Currently, any number of lawyers can run for a circuit court Judge position.  We have a choice of candidates.  If Amendment A is passed, lawyers will apply to a commission who will choose the candidates.  Then the Governor decides who will be our judges.  Could the governor pick a candidate that would be a political pay off?  Absolutely!  We only need to look at the bickering and political infighting at the federal level concerning judges appointments.  Some judicial appointments have been held up for years because of partisan politics.      

We the voters will have No input, No chance to be involved to decide who will be our circuit court judges.  We will only be allowed a retention vote every 8 years to decide whether we want that judge to stay. 

I urge you to VOTE NO ON AMENDMENT A.  Preserve your Constitutional right to Vote for your Circuit Court Judges.

Submitted by:  Senator Bill Napoli, 6180 S Highway 79, City, SD  57501.  Senator Napoli represents District 35.

2004 Ballot Question Pamphlet - Constitutional Amendment B

Compiled by the Office of Secretary of State Chris Nelson

Constitutional Amendment B

Title: An amendment to Article VIII, section 20 of the South Dakota Constitution to authorize the provision of certain services to all children of school age.

Attorney General Explanation

The Constitution generally prohibits the Legislature from giving state money or property to sectarian schools.  However, the Constitution allows the Legislature to authorize the loan of nonsectarian textbooks to children of school age, including those attending sectarian schools. 

            Amendment B, if adopted, would change the Constitution to also allow the Legislature to authorize participation in food and transportation services for children of school age, including those attending sectarian schools.

            A vote “Yes” will change the Constitution.

            A vote “No” will leave the Constitution as it is.

Pro -- Constitutional Amendment B

It was a sad day last year when the South Dakota children attending Christian schools were not allowed to ride the buses to school.  Kicking those kids off the bus ran contrary to decades of cooperation in South Dakota between public and Christian schools.  This unbelievable policy of letting the school bus stop at farms to pick up the high school and junior high children going to public school, but refusing a ride for their brothers and sisters attending elementary school, was due to an antiquated provision in the South Dakota Constitution called the “Blaine Amendment.”

The South Dakota Legislature, without a dissenting vote, immediately passed legislation to get the kids back on the buses.  Unfortunately, there are still school districts afraid that the “Blaine Amendment” prohibits this age-old cooperation between schools.  Amendment B fixes the problem.  It does not cost the taxpayers a cent.  It allows the Legislature to authorize the public and Christian school cooperation we have known historically in South Dakota.  Amendment B was co-sponsored by 98 of your 105 legislators. The "food service" language is included because the Yankton public schools were paid by the Catholic grade school to fix meals for their children.   The administration felt that the “Blaine Amendment” even prohibited that level of cooperation.

The “Blaine Amendment” was forced upon South Dakota at the time of statehood by the Congress.  It was a product of the documented religious bigotry of the 1880's.  South Dakota didn't have a chance to do it right then, if we wanted to become a state.  But now voters have an opportunity to make a technical amendment to our State Constitution and allow our historical cooperation, between public and Christian schools, to continue for the benefit of all of our children.

Submitted by:  Senator Lee Schoenbeck, 419 – 54th  Street SW, Watertown , SD  57201.  Senator Schoenbeck represents District 5.

Con -- Constitutional Amendment B

One of the fundamental commitments of the State of South Dakota is the establishment and maintenance of a general and uniform system of public education.  Since the beginning of statehood, the state has worked to accomplish this basic goal of our representative democracy even though money is always scarce.   Strong public schools have been a staple of a strong South Dakota. 

Passage of Amendment B would allow the expenditure of public school money for privately schooled students.  The amendment allows students not enrolled in public schools to be provided transportation and food service at public expense.  Amendment B is vague and does not limit the amount of money that would be siphoned from public schools.  The severity of the impact on already financially strapped school districts cannot be fully measured and would likely result in unintended consequences. Why Amendment B is not good for South Dakota:

         It may conflict with other portions of the SD Constitution.

         More public school districts will be pressed to opt out of the property tax limits if the amendment passes.  Dozens of districts have already done so.

         When money is diverted from public schools to private students, and the public does not support additional taxes, more student programs will need to be cut.

         Passage of Amendment B could be a step toward proposals taking many more resources from public schools for private purposes.

         The diversion of money from public schools will erode the state’s constitutional commitment to public education.

South Dakota public schools consistently rank high on national measurements of student success.  These schools struggle more and more to maintain this success due to very limited resources and new mandates placed upon them.  Please vote no on Amendment B since it further limits public school resources.

Submitted by:  Donna DeKraai, 411 East Capitol Ave, Pierre, SD  57501.  Donna DeKraai is the President of the South Dakota Education Association.

2004 Ballot Question Pamphlet - Initiated Measure I

Compiled by the Office of Secretary of State Chris Nelson

Initiated Measure I

Title:  An act to exempt food from sales and use taxes.

Attorney General Explanation

The state collects a sales and use tax on the sale of food.  Many cities and towns also collect a municipal sales and use tax on the sale of food.

            Initiated Measure 1, if adopted, would exempt food from state and municipal sales and use taxes, and eliminate this source of revenue.

            A vote “Yes” will change state law.

             A vote “No” will leave state law as it is.

Pro – Initiated Measure I

Food is one of life's basic needs and one of South Dakota's most important products.  Taxing life's necessities is unjust.  A YES vote on this measure exempts food purchases from state and city sales tax beginning July 1, 2005.  Pop, candy, restaurant meals, and other merchandise purchases will continue to be taxed.

At 4% for the state, and 2% for most cities, the food tax is the equivalent of three weeks worth of food each and every year (6% x 52 weeks).  For many low-income people, this is a significant loss.  A family spending $500 per month on groceries currently pays $360 in food tax every year.  A YES vote benefits all South Dakotans--no card required.

Initiative 1 is modest and affordable.  When analysts consider the state's $5 million refund program, $3 million in taxes from pop and candy, and $2 million in revenues from the tax cut's economic stimulus, repeal requires about $32 million annually.  This amounts to 1.1% of the state's entire budget or 3.3% of the General Fund.

Reserves and revenues are available.  The state holds fund balances exceeding $1.3 billion.  The National Conference of State Legislatures ranks South Dakota #1 based on the relative size of our budget surplus.  The budget reserve and property tax reduction funds alone have combined balances of $137.7 million.  Sales tax revenues continue to grow faster than expected.  We can afford to end the food tax with no adverse consequences on state programs and services.

Municipalities need not lose any funding from this repeal.  The legislature can allow cities modest adjustments in non-food tax rates to maintain full city revenue.

Learn more at

Submitted by: Reynold Nesiba, 2204 S. Holly Ave., Sioux Falls, SD 57105.  Dr. Nesiba is an Associate Professor of Economics at

Con – Initiated Measure I

A repeal of the sales tax on food will eliminate $62 million in state, local and tribal funds and many more millions in matching federal funds so there will be less money available for needed services to South Dakotans every year. 

Who Gets Less Money?  Cities lose $20 million.  That means less money to repair streets, maintain water systems, and operate city services.  Or, it could cause increases in your local property taxes.

The state and tribes lose $42 million.  That will cause existing taxes to increase, new taxes imposed, or cuts made to schools, medical services for poor children, the elderly, and other services.

Does the State Have Funds to Pay for a Repeal?  No. It doesn’t.

The people have created three trust funds that total $656.7 million.  Interest from those trusts provide $30 million in annual funding for education, scholarships, and health care.  With 72% approval in 2001, voters showed they didn’t want the principal spent.

Other accounts total $560.4 million.  These monies are restricted to retiring bonds, providing clean water, and maintaining/repairing highways.  They cannot be diverted.

That leaves $109.9 million for state emergencies and property tax reduction. It could be used.

But, if used, that money would be gone in two years! Then, we will be forced into raising current taxes, creating new taxes, or cutting funding for schools, medical services for poor children, the elderly, and other services. 

What About Helping   We have a new law that gives poor people a refund on their food sales taxes. 

Please do not vote to create a funding crisis by repealing the sales tax on food and creating uncertainty for every taxpayer worried about new taxes and every vulnerable person dependent on government for needed help.

Please Vote “NO” on Initiative “1.”

Submitted by:  Governor M. Michael Rounds, 912 Woodridge Drive, Pierre, SD  57501.