## Facts

- South Dakota law (SDCL 12-13-9) requires the Attorney General to prepare a ballot title and a ballot explanation for proposed constitutional amendments, with the explanation limited to 200 words.
- After legislative changes in 2006–2007, the ballot explanation is meant not only to identify a proposal but also to educate voters through an objective, clear, and simple summary of the measure’s purpose and effect, plus a description of legal consequences, including likely state exposure to liability.
- In 2010, the South Dakota Legislature adopted Senate Joint Resolution 3, referring proposed Constitutional Amendment K to the voters.
- Amendment K would add a provision to the South Dakota Constitution stating that the right to vote by secret ballot is fundamental and applying that requirement to elections for public office, initiated or referred measures, and “designations or authorizations for employee representation.”
- Attorney General Marty Jackley drafted and delivered the required ballot explanation for Amendment K to the Secretary of State.
- The South Dakota State Federation of Labor, AFL-CIO challenged the ballot explanation, asserting that it (1) did not clearly and simply summarize the amendment’s purpose and effect and (2) failed to describe the amendment’s legal consequences, including likely state liability—especially consequences associated with possible federal labor-law preemption and related litigation.
- The AFL-CIO filed a petition for a writ of certiorari in circuit court and asked the court to order Amendment K removed from the November 2010 ballot.
- The circuit court denied the writ, concluding the Attorney General’s explanation complied with SDCL 12-13-9, and the AFL-CIO appealed.

## Issues

1. Whether, on certiorari, the Attorney General’s ballot explanation for proposed Constitutional Amendment K complied with SDCL 12-13-9’s requirements for an objective, clear, and simple summary of purpose and effect and a description of legal consequences, including likely state exposure to liability.
2. Whether SDCL 12-13-9 required the Attorney General to include more detailed discussion of potential federal preemption and speculative litigation or liability consequences arising from Amendment K’s application to employee-representation designations.
3. Whether a ballot-explanation challenge permits the court to decide the proposed amendment’s broader legality or constitutionality (including federal preemption) or to remove the measure from the ballot based on those arguments.

## Decision

- The Supreme Court of South Dakota affirmed the circuit court’s denial of the writ of certiorari.
- The court held its role in reviewing a ballot explanation is limited to determining whether the Attorney General complied with SDCL 12-13-9, not to rewriting the explanation or choosing among drafting alternatives.
- The court concluded the Attorney General’s explanation satisfied SDCL 12-13-9’s requirements and was sufficiently objective, clear, and simple within the 200-word limit.
- The court rejected the AFL-CIO’s effort to use the ballot-explanation proceeding to obtain a ruling on federal preemption or the overall constitutionality of Amendment K.
- The court declined to order Amendment K removed from the ballot.

## Legal Principles

- Certiorari review of an Attorney General’s ballot explanation is narrow; the court checks statutory compliance and whether the officer acted within lawful authority, not whether the court would draft a better statement.
- SDCL 12-13-9 requires a ballot explanation to be objective, clear, and simple; it must educate voters about the proposal’s purpose and effect and include a description of legal consequences, including likely exposure of the state to liability.
- The Attorney General has discretion in how to write the explanation within the statute’s limits and the 200-word cap; courts do not act as a “literary editorial board” to fine-tune wording where the statement is accurate and non-argumentative.
- The statutory requirement to describe legal consequences does not convert the ballot explanation into a detailed legal memorandum addressing every disputed or uncertain downstream consequence, including contested federal preemption theories.
- A challenge to the ballot explanation is not the proper vehicle for resolving the substantive legality or constitutionality of the proposed amendment itself, and removal of a measure from the ballot is not justified where the explanation meets the statutory standard.

## Conclusion

The South Dakota Supreme Court held that Attorney General Jackley’s ballot explanation for proposed Constitutional Amendment K complied with SDCL 12-13-9 and that certiorari review did not permit the court to rewrite the explanation or decide the amendment’s constitutionality or federal-preemption questions; accordingly, the court affirmed denial of the writ and left the measure on the ballot.


South Dakota State Federation of Labor, AFL-CIO v. Jackley, 786 N.W.2d 372 (2010)