Bill Thompson still jousting at windmills as he pushes his unconstitutional redistricting measure.
Remember Tom Katus’ BRAC/Income Tax Commission plan last year?:
Solution: To adequately support our elders and teachers, we need a BRAC-type bipartisan democratic Tax Review Commission “with teeth in it.” I have experience in implementing such democratic processes and would be pleased to elaborate further in a subsequent column if the Journal provides space.
Yeah, a proposal to pass of the responsibilities of the job of legislator stunk up the place a year ago. So much so that his Minority Leader, Scott Heidepreim, even panned it. Now, with such a bad idea as passing of the duties of office, what can we expect people to do? Try it again the next year!
This year, it’s Representative Bill Thompson’s turn. Now, I can’t fault Democratic Representative Bill Thompson for trying. Everything I hear tells me he’s a nice guy. Personally, I find it hard to have anything against such a notable home brewer of adult beverages.
But having been a legislator for a while now, I have to question why he can’t bother to read the State Constitution.
I’m talking about the redistricting measure that he’s promoting for 2010, which for some reason, he seems to think that his proposed state law will be enough to supersede “that one document thingy that our state’s system of government is based on.” (click on images to enlarge):
Why do I call his measure (draft694.pdf) unconstitutional? Look at the title. An Act to provide for legislative redistricting by a bipartisan, nonlegislative commission.
Huh? A clear and stated legislative duty becoming a “nonlegislative decision?” He’s trying to make it a nonlegislative decision, when it is NOTHING BUT. From article III, section 5 of the South Dakota constitution:
§ 5. Legislative reapportionment. The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.
Bill’s plan is to create this “citizen’s commission” to do the legislature’s job for it. And last time I checked, the legislature can’t pass off their duty. Because that’s what we elected them to do!
And I just love the final statement in the measure. Because, if it’s in a bill, it makes it so:
“Within thirty days after receiving the legislative redistricting plan and the Legislature’s recommendations, the commission shall file its final legislative redistricting plan with the secretary of state and it shall become law fulfilling the requirements of S.D. Const., Art. III, § 5.”
Uh, no it won’t. And Representative Thompson should know that.
As I said last time when Senator Katus tried it, We don’t elect legislators to openly abdicate responsibility for making difficult decisions. If they manage to do it successfully, we sometimes even call them statesmen.
This is not a statesman’s legislation.
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Comments
Just to be clear, the law isn’t unconstitutional on its face. I haven’t looked at it, but the legislature is permitted to delegate certain administrative functions.
As the Supreme Court of SD stated in its most recent case on the topic:
“Under [the separation of powers] doctrine, the Legislature cannot abdicate its essential power to enact basic policies into law or delegate such power to any other department. However, once the Legislature has created broad policy through its enactments, it may delegate in the execution of that policy certain quasi-legislative powers or functions to executive or administrative officers or agencies, provided it adopts standards to guide those officers or agencies in the exercise of such powers.”
State v. Moschell, 677 N.W.2d 551 (2004).
As long as the legislation provides adequate standards and guidance, there would be no constitutional problem with delegating the reapportionment duties to an agency or board.
After reading the proposal, it strikes me as providing inadequate guidance to pass constitutional muster. I think there are a lot of ways to constitutionally accomplish Rep. Thompson’s goals, but this needs more work.
I also wanted to note that the constitutional problems arise from Article II (separation of powers) not necessarily from Article III sec. 5.
1. I don’t think you have an apples to apples argument. The US Constitution does not spell out giving exclusive rights to women over life decisions. Roe was based on lies but if it were based on truth room was left for the public to bring answers for floating questions.
Kind of like those folks who keep pushing unconstitutional abortion legislation, even though folks keep voting it down. Insanity is doing the same thing over and over and expecting different results.