Schulte v. Long

SABERS, Justice

(dissenting).

[¶31.] The last time this Court addressed an Attorney General’s ballot explanation, the author of the majority opinion recognized the tremendous responsibility of this Court and stated: “At stake here is the impartiality and integri*503ty of the voting booth.” Hoogestraat v. Barnett, 1998 SD 104, ¶18, 583 N.W.2d 421, 425 (Gilbertson, J., concurring). Indeed, there are few other things as cherished or as necessary for our government as the act of voting. To aid in this awesome responsibility “[t]he Legislature has seen fit to assist the people in voting on proposed constitutional amendments created by initiative by authorizing the Attorney General to give a brief explanation per SDCL 12-13-9.” Id. When an Attorney General’s ballot explanation, which is printed directly on the ballot and is the last thing a voter sees before casting a vote, loses objectivity, it is objectionable. In this regard, our obligation is no less than that of the Attorney General, to take no sides in the debate on the proposed amendment but, instead, act impartially to ensure a voter is presented with a fair, accurate and concise explanation of the proposed measure. Because the majority opinion allows the Attorney General to breach this requirement, I dissent.

[¶ 32.] I agree with the majority opinion that the analytical framework for reviewing a disputed portion of an Attorney General’s ballot explanation was clearly set forth in Hoogestraat, 1998 SD 104, 583 N.W.2d at 421. We recognized that the significance of the ballot explanation is derived from the fact that “[t]he full text of a proposed amendment to the constitution is not printed on the election ballot in South Dakota.” Id. ¶ 8 (citing SDCL 12-13-11). Rather, the Attorney General is required to prepare an explanation of the proposed amendment by submitting “the statement, the title, the explanation, and a clear and simple recitation of the effect of a Tes’ or ‘No’ vote.” SDCL 12-13-9. “The explanation shall state succinctly the purpose and legal effect of the proposed amendment to the Constitution, initiated measure, or the referred law.” Id. (emphasis added). This explanation “shall be a clear and simple summary of the issue and may not exceed two hundred words in length.” Id.

[¶ 33.] The purpose of the Attorney General’s explanation “is to identify an amendment to an informed electorate rather than to educate it.” Hoogestraat, 1998 SD 104, ¶ 11, 583 N.W.2d at 424 (quoting Barnhart v. Herseth, 88 S.D. 503, 515, 222 N.W.2d 131, 137 (1974)). “[V]oters are presumed familiar with proposed amendments through the publicity given the amendments in the time leading up to the election.” Id. As a result, the ballot explanation is restricted. The scope of the ballot explanation is only to “clearly, simply, and succinctly identify and summarize the purpose and legal effect of a proposed amendment to an already educated and informed voter.” Id. ¶ 12.

[¶ 34.] In paragraph 11, the majority opinion provides:

In deciding the matter before us, we cannot take a side in the debate on the merits of the ballot issue. We also cannot allow that debate to enter the voting booth on the face of the ballot. Our prior cases have examined this statute as to what it requires and what it does not allow. The explanation must 1) be factually accurate, 2) legally accurate, 3) concise, 4) must not address collateral, 5) theoretical or 6) potential consequences of approval or disapproval by the voters, 7) must not be a statement of personal opinion and 8) must not attempt to advocate for or against the ballot question.

(numbers added) (citing Hoogestraat, 1998 SD 104, 583 N.W.2d at 421). The addition of the offending language “and eliminate this source of revenue” makes the explanation:

(1) less factually accurate;
(2) less legally accurate;
*504(3) less concise;
(4) address collateral consequences;
(5) address theoretical consequences;
(6) address potential consequences;
(7) a possible statement of personal opinion; and,
(8) advocates against the ballot question.

In other words, it fails on all of the eight factors.

[¶ 35.] I disagree completely with the majority opinion on its application of the law of Hoogestraat to these facts. It im-permissibly allows the Attorney General to go beyond the “basic purpose” of the ballot explanation which is to “identify an amendment to an informed electorate rather than to educate it.” Hoogestraat, 1998 SD 104, ¶ 11, 583 N.W.2d at 424. In this regard, the reasoning of the majority opinion relies heavily upon the rationale of the lone dissenter in that case to approve the disputed language as “legal effect.” See Hoogestraat, 1998 SD 104, ¶ 27, 583 N.W.2d at 426 (Amundson, J., dissenting). This is particularly perplexing considering that is a position which the author of the majority opinion did not join and rejected.

[¶ 36.] In this case, the Attorney General and Secretary of State contend that the phrase “eliminate a source of revenue” explains the direct legal effect of the proposed initiative. However, we have recognized that “the direct legal effect that must be succinctly stated refers to the result that the proposed constitutional amendment will have upon existing law.” Id. ¶ 12. Rather than remarking on how the proposed repeal of the food tax would effect existing law, the Attorney General’s explanation directed attention to the financial or “pocketbook” effect the proposal would have if adopted by the voters of the State. This is impermissible under the statutory framework.

[¶ 37.] In comparison, other states have statutorily authorized fiscal impact to be provided to the voters in a ballot summary when considering a proposed amendment. See Proposed Initiated Constitutional Amendment Concerning Unsafe Workplace Environment, 830 P.2d 1031, 1035 (Colo.1992).6 However, as we recognized in Hoogestraat, South Dakota’s statutory system is unique. Hoogestraat, 1998 SD 104, ¶ 9, 583' N.W.2d at 424. The Attorney General is limited to solely explaining the purpose and legal effect of the proposal with a clear and simple recitation. SDCL 12-13-9. By including matters outside the scope of the “purpose and legal effect” of the proposed amendment, the Attorney General’s explanation was unwarranted and statutorily prohibited. We are not to concern ourselves with the merit of this proposed amendment, that is the business of the electorate. Likewise, the Attorney General cannot interfere with the business of the electorate by intentionally or unintentionally bending to partisan sides in his ballot explanation.7

[¶ 38.] Even if one were to accept the majority opinion’s determination that the *505reference to the effect on revenue is somehow permissible, factually, the disputed portion of the ballot is incorrect in that it indicates that food tax, as a source of revenue, would be “eliminate[d].” However, the initiated measure exempts certain foods from the effect of the proposed measure, making them taxable. For example, “the term, food, does not include alcoholic beverages, tobacco, soft drinks, candy or prepared foods.” In other words, the word “eliminate” is inaccurate and the word “modify” would be accurate. In that regard, the Attorney General’s statement is inaccurate and misleading.

[¶ 39.] Nevertheless, the majority opinion faults the drafters of the measure for not specifying more in their title concerning the exemptions. While the authors of the proposed measure drafted the title, it must be remembered that this was a title, part and parcel of the entire measure, which included the definition of “food.” The majority opinion removes the title from its context, faults the drafters for not defining words in the title, and then shifts the burden of providing an adequate explanation from the Attorney General, the party statutorily required to accurately and fairly explain the measure, to the drafters. It is not the fault of the drafters that the Attorney General did not explain the term “food” in the factual and legal sense it was used within this context. Yet, this is something that would more logically have been within the Attorney General’s mandate to explain the “legal effect” of the proposed measure. Apparently, this was secondary to the impact on revenue.

[¶ 40.] The circuit court properly recognized that the Attorney General’s ballot explanation crossed the line from explanation to advocacy. Even if the Attorney General’s statement were accurate, “it [would be] the accuracy of an advocate.” Gormley v. Lan, 88 N.J. 26, 438 A.2d 519, 526 (N.J.1981). Only with the omission of the offensive provision will the ballot explanation become concise and narrowly crafted as is required by SDCL 12-13-9, or accurate.

[¶ 41.] I dissent for all of these reasons.

A postscript to Attorney General Larry Long:

[¶ 42.] In Hoogestraat at paragraph 18, Justice Gilbertson said: “At stake here is the impartiality and integrity of the voting booth.” Hoogestraat, 1998 SD 104, ¶ 18, 583 N.W.2d at 425. Although he has apparently changed his mind, it is not too late for you to do the right thing.

[¶ 43.] You have won an advantage for your party, a political advantage. But you are the Attorney General for all the people of the State of South Dakota-your job is to fully and faithfully perform the duties of the chief law enforcement officer in the State of South Dakota for all of the people.

[¶ 44.] I encourage you to remove the offending language from the ballot and the voting booth. Do the right thing for all the people of South Dakota.

. Even with the inclusion of such financial information the explanation “must be clear, concise, true and impartial, and must not consist of argument, nor be such as to likely create prejudice, either for or against the ■ measure.’' Title, Ballot Title and Submission Clause Approved September 4, 1991, 826 P.2d 1241, 1244 (Colo.1992). Likewise, South Dakota's voters deserve nothing less.

. For instance, the Governor's official statement against the initiated measure filed with the Secretary of State and contained in the record focuses almost exclusively on the loss of revenue and the “funding crisis” should the measure be approved. It is certainly the prerogative of the Governor to take a stand on this issue. However, it is not the Attorney General's job to reinforce any political view by the wording of the ballot explanation.