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Adelstein asks court to force ballot statements

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Sen. Stan Adelstein2 / 2

A Rapid City state senator is suing the South Dakota secretary of state in the next step of their ongoing battle.

Sen. Stan Adelstein filed a writ of mandamus in Hughes County Circuit Court Wednesday, asking a judge to order Secretary of State Jason Gant to publish an opposing statement to proposed Constitutional Amendment P in an election pamphlet.

There are eight questions on the Nov. 6 ballot, including four proposed constitutional amendments. Amendment P calls for a balanced state budget.

According to the attorney general's explanation of Amendment P, "While the constitution currently restricts the state from incurring debt, it does not expressly require the state to have a balanced budget. Amendment P requires the governor to propose a balanced budget. In addition, Amendment P prohibits legislative appropriations from exceeding anticipated revenues and existing available funds. The amendment is not intended to affect other constitutional provisions."

A yes vote is for the amendment; a no vote would not make it law.

A hearing on Adelstein's filing is set for 12:30 p.m. Friday before Circuit Court Judge Mark Barnett at the courthouse in Pierre. Rapid City lawyer Patrick Duffy will represent Adelstein, while Assistant Attorney General Rich Williams will represent Gant.

Adelstein argues that SDCL 12-13-23 mandates such a statement to be published. Gant said he sought opposing statements and was unable to find any for the four proposed amendments on the Nov. 6 ballot. There are pro statements for all four proposed amendments in the pamphlet.

Gant said he printed the pamphlets and does not have time to print new ones or insert items into them. Early voting started last month.

Gant issued a brief statement on the case.

"I believe I have followed the law to the fullest extent," he said. "The next step is now with the court."

Adelstein submitted an opposing statement to Amendment P in late September but Gant said that was not in time to be added to the pamphlet.

Gant and Adelstein are both Republicans, but they have been butting heads for months. Adelstein called for a formal investigation of Gant's office earlier this year and has also asked Gant, who was elected in 2010 and has more than two years left on his term, to resign.

He said an opposing view to Amendment P is needed, since the proposed change could be dangerous to the state, in his view.

"As the constitution now stands, Section 11 makes an unbalanced budget nearly impossible," Adelstein said in a press release. "By constitution, the legislature and/or the Governor cannot propose a budget where the expenses exceed the revenues without imposing an additional tax, and it is virtually impossible to have a tax increase that will pass.

"Amendment P wipes out that safeguard by allowing the governor and/or the Legislature to propose a budget that is balanced only to the extent that it does not exceed 'anticipated revenues and funds,' and there is no definition of 'anticipated' provided," he claims.

Adelstein said he is also concerned about the use of the term "funds" in the proposed amendment.

"The most serious example of what could happen is the use of the South Dakota Cash Flow Fund, which is comprised of more than 250 separately identified state accounts -- essentially the checkbook of state government," he said in the release.

The fund varies between $750 million and more than $1 billion, he said, and some of the dollars are already allocated by contracts with outside vendors or contractors or by federal restrictions -- but most of it is not. Adelstein said if the amendment is passed, a "wild-eyed spender" could be elected governor and use the money for other purposes, leaving the state in a fiscal mess.

Adelstein has also criticized Gant for endorsing candidates in the June primary, and he amplified the point in the release, claiming the secretary of state is seeking to please Gov. Dennis Daugaard, who is also a Republican.

"The secretary first endorsed the governor's candidate in the Republican primary against a seated state senator, on behalf of a speaker of the House that had done the governor great favors, and Adelstein assumes the secretary as well," the release states. "The secretary now proceeds to allow the governor's amendment which would encourage a disastrous budget for years to come. Why?"