Monday, March 29th, marked the last day of the 96th Legislative Session, better known as Veto Day. Legislators returned to the Capitol to readdress HB 1217, the Women’s Fairness in Sports Bill.
The Governor reviewed the bill and returned it to the legislature with a recommendation for Style and Form changes. Historically, Style and Form changes involve simple changes such as typos, grammatical errors, etc. Governor Noem returned the bill with substantive content changes and exclusions.
She stated, “the changes were needed in order to achieve the legislative intent of protecting girls’ sports, while simultaneously avoiding potential unintended consequences.”
In last week’s article, I noted that I was likely to vote “No" on the Style and Form changes proposed by Governor Noem… and after seeking legal counsel, I did just that! I was told by counsel that, “there was a concern about setting a bad precedent for the use of the Style-and-Form Veto. The constitution provides the Governor authority to change a bill to correct an error in style or form. The proposed changes exceed that authority, setting a new precedent for all governors going forward.” Only the legislature can write bills. The Governor can approve them, signing them into law or not. If we were to allow the Governor to re-write bills in a substantive way, it would be a massive deviation from what our Constitution affecting how laws are made in South Dakota."
I’m sure that by now, you have read all about the ins-and-outs of the day. Frankly, the day left me wondering what is the legislative body for? If we, as elected legislators, vet bills in committee, that pass the scrutiny of the House and the Senate, only to be overridden by an executive order, why are we here? After we voted against the Governor’s Style and Form changes, the dominos began to fall. There was a lot of back and forth between the Governor and Leadership while the legislators waited for hours. Finally, late afternoon the Senate adjourned rendering whatever we did in the House irrelevant. Subsequently, the Governor issued two executive orders:
Executive order #1 directed the State Department of Education to enforce rules allowing only females based on their biological sex at birth, to participate girl’s & women’s sports. Executive Order #2 suggested that the Board of Regents “should” (not shall), enforce rules allowing only females based on their biological sex at birth, to participate in girl’s and women’s sports.
Bottomline, can the Governor tell the board of regents what to do? According an article by Professor Michael Card, of USD Political Science Department, “It’s not clear the governor has a great amount of authority over the South Dakota Board of Regents to direct them to do much of anything. The Board of Regents was created by the constitution, subject to limitations placed on them by the legislature.” In addition to this, the South Dakota Secretary of State verified that executive orders, as issued by the Governor, are not laws. Executive orders are usually based on existing constitutional or statutory powers of the Governor and carry the most weight when they are issued during an emergency. An Emergency declaration isn’t warranted in this case and is likely headed to court.
The Supreme Court of the United States has recognized that the Equal Protection Clause of the Fourteenth Amendment, allows for the law to treat women and men differently, and that equal protection afforded women should apply to all of our state’s schools including institutions of higher learning. After spending hours of to find the answer my question, “Why am I here?” The answer became crystal clear… I am here for you: to be your voice and to stand up for all our rights provided by our constitution.