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Controversial transgender bill dies in South Dakota legislature, House can't override the governor's effective veto

The South Dakota House of Representatives -- a Republican stronghold -- failed to overcome a constitutionally required two-thirds majority threshold to overcome an effective veto by of a transgender sports bill by Gov. Kristi Noem, who had issued "style-and-form" edits on the bill that the legislature did not accept

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The House of Representatives listens as Gov. Kristi Noem's proposed style-and-form edits to HB 1217 are announced on Monday, March 29. The house voted to oppose "style and form" edits to a controversial transgender sports bill. (Christopher Vondracek / Forum News Service)
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PIERRE, S.D. — After the South Dakota House of Representatives got around to figuring out whether to call Gov. Kristi Noem's rejection of their legislation a "veto" or not, they couldn't muster the necessary two-thirds' majority to send an anti-transgender bill onto the senate.

Even if they had, the senate already gaveled out for the session.

"We knew that there weren't votes to override the veto in the senate," said Senate Minority Leader Troy Heinert , D-Mission, moments after the legislative session concluded on Monday, March 29 after a whirlwind day in the House but a leisurely day of waiting in the Senate for a "fairness in women's sports" bill that ultimately died anyway.

"I think after it was smoked out and people realized what had happened, there wasn't just the appetite to take this issue up," said Heinert.

The vote culminated a day of both straining relations between legislative leaders, with the upper-chamber adjourning prior to the House, a governor leaving from Pierre to oversee a fire response effort outside Rapid City, and a largely tedious, technocratic debate between the governor's staff, legislators, and the legislative research council whether Noem's actions amounted to a veto of a bill to segregate sports by "biological sex."

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House Speaker Spencer Gosch, an ardent supporter of HB 1217, kept the body in recess for hours awaiting word from the governor's office on whether "you have chosen to veto" the bill, after Noem wrote a letter announcing the bill as dead after the House didn't accept her edits to the measure. Gosch argued that Noem's "assertion that this is not a veto" had "clouded the constitutional issue."

For her part, Noem had argued in an earlier letter that she'd actually "fail(ed) to certify the bill," a murky, constitutional action, that could be treated "like a veto."

The House wasn't buying it. But the ensuing legalistic back-and-forth ultimately lead to a stand-off, with members of the Senate waiting for nearly an entire day, some exchanging beef sticks in the corridor and waiting for the House to take action.

Just before 3 p.m., the House gathered to vote on whether to pass HB 1217 "veto not withstanding," as the chamber's kiosk read.

"Send it over to the Senate," said Rep. Liz May , R-Kyle. "They want to talk about this."

But the Senate had actually left, with some literally on their way to the parking lot, with others standing in the gallery.

The house voted 45-24, but not gaining the necessary two-thirds votes to move ahead, and Gosch , R-Glenham, gaveled out after a short prayer, ending the 2021 legislative session.

The defeat marked a remarkable turnaround for a bill that just weeks ago drew a tweet from Noem, saying she was "excited" to sign a piece of legislation that has now passed in Mississippi, Arkansas and Tennessee in recent days.

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"Nobody wins when politicians try to meddle in people's lives like this," said Jett Jonelis, ACLU of South Dakota advocacy manager. "Nobody wins when we try to codify discrimination like this. We're thrilled with the decision by South Dakota lawmakers to kill this bill."

On the senate side, even past supporters of the measure, felt ready to close the door, at least for now, on HB 1217.

"Truthfully, personally I'd just like this to be brought up during regular session," said Sen. Erin Tobin , R-Winner. "I just think that we all have our work that we need to do in the off-season."

The governor, who had promised to bring a special session, issued two executive orders late in the day on Monday with language appearing to mirror her style-and-form edits. It wasn't immediately clear before deadline whether these orders are legally binding.

In a series of Tweets, Noem also announced a special session in "late May or early June."

Earlier in the day, the South Dakota House Republicans had slammed shut the door on Gov. Kristi Noem's proposed changes to a "sports fairness" bill that would all but ban transgender youth from participating in state-sanctioned sports.

After five minutes of debate to open up "Veto Day" on Monday, March 29, with member after member from the Republican supermajority standing to criticize the "style and form" tool as an inappropriate vehicle for the seismic changes the governor proposed in HB 1217, the House of Representatives voted 67-2 against making the bill law.

Noem embarked on a week-long campaign, both locally and in the national spotlight, often on conservative media, to win converts to her approach, namely to pass a halved bill and lead a campaign through a website to take on the NCAA. But on Monday in Pierre, lawmakers rejected that strategy in stark terms.

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"What we have before us today is clearly without a doubt not a style-and-form veto," said Rep. Jon Hansen , R-Dell Rapids, who has previously called for the state to fund the legal fees of fighting for the bill against an almost certain legal challenge.

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Rep. Lana Greenfield, R-Doland, listens to debate on Monday, March 29 over an attempted veto override of South Dakota Gov. Kristi Noem's effective veto of a transgender-banning sports bill. (Christopher Vondracek / Forum News Service)

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