One of the best pieces of news from last night’s election is this:
A ballot measure that would ban nearly all abortions in South Dakota was rejected on Tuesday…. The Legislature passed the law last winter in an attempt to prompt a court challenge aimed at getting the U.S. Supreme Court to overturn its 1973 Roe v. Wade decision that legalized abortion in the nation.
Instead of filing a lawsuit, however, opponents gathered petition signatures to place the measure on the general election ballot for a statewide vote.
We all know how this was supposed to go. This outrageous law was enacted for one purpose only: to be the vehicle by which the US Supreme Court overrules Roe v. Wade once and for all. But the activists who opposed the law didn’t take the bait. Sure, they could have gone to court and gotten lower courts to strike it down, but that would only have set up the Supreme Court confrontation that the law’s backers desperately wanted. Bad idea.
Instead, the law’s opponents went directly to the people of South Dakota and asked them whether they wanted this wretched law that their legislature had approved. And guess what: they didn’t. Now the law is repealed, and there will be no Supreme Court confrontation (yet). And no one can moan and groan about activist judges thwarting the will of the people.
Therein, I think, lies a message for the ConCon — which, don’t forget, is scheduled for tomorrow, and at which the issue of gay marriage will be taken up. Senate President Travaglini has promised that there will be an up-or-down vote in the legislature on whether to advance the marriage ban to the next legislative session (it only needs 50 out of 200 votes to advance).
Here’s hoping that Trav sticks to that. If advocates for gay marriage want to settle this, they should urge the legislature to vote — and to vote “no” — on the proposed amendment. An up-or-down vote to kill the amendment is a perfectly legitimate, and perfectly democratic, way of dealing with it. There is no constitutional right to a popular vote on these initiatives, as Scot Lehigh and others noted before the last ConCon. And, as the Herald said at that time, “If it can’t get that number  on an up or down vote then surely it is not worthy of further consideration.”
If, on the other hand, the legislature uses parliamentary maneuvers to kill the amendment without voting, the cries of an unfair and illegitimate process will ring true. That’s the worst thing that could happen to marriage equality backers.
Now, some might argue that I’m missing the point of the South Dakota story by arguing that the legislature should not send the measure to the ballot. I’d respectfully disagree. What I’m urging is that the democratic process — of which the vote in the legislature is an integral part, not a rubber stamp — be allowed to work the way it’s supposed to. That’s what happened in South Dakota yesterday, and that’s what should happen here tomorrow.