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The sponsor of a proposed initiated measure that seeks to repeal video gambling is running radio and television ads that criticize Secretary of State Chris Nelson for refusing to put the measure on the fall ballot.
"Who's pulling the secretary's strings? Is this another favor to protect special interests, or has our state video lottery addiction become so strong that our current administration will steal our right to vote," say the ads being run by Forward South Dakota, the group promoting the repeal of video lottery.
The ads say somebody is trying to manipulate the secretary of state, and the television version shows hands pulling the strings of a puppet that resembles Nelson.
Nelson said Wednesday he is surprised by the ads because the issue is before the South Dakota Supreme Court, which will decide whether the video lottery measure should be on the fall ballot.
"It has absolutely nothing to do with special interests. It has everything to do with the law," Nelson told The Associated Press.
Nelson and Attorney General Larry Long announced on May 30 that initiated measures seeking to repeal the video lottery and a tax on cellular telephone companies could not be placed on the ballot because of a 1995 state Supreme Court opinion. That ruling said an initiated measure could not be used to repeal an existing law.
Forward South Dakota has asked the high court to take another look at the issue and order Nelson to put the measure on the November ballot.
Daniel K. Brendtro, a Sioux Falls lawyer who is treasurer of Forward South Dakota, said he believes no law gives Nelson the discretion to interpret the South Dakota Constitution and decide what goes on the ballot.
Brendtro said he understands that a video lottery supporter called the secretary of state to raise the question of whether the 1995 ruling should be used to keep the measure off the ballot.
"It's this bigger issue behind the scenes we're trying to get at," Brendtro told the AP.
Nelson has said he sought the attorney general's opinion after someone contacted him about whether the 1995 decision would apply to the video lottery and cellular telephone measures.
"What I take that to mean is a video lottery attorney or a video lottery proponent called and said let's get this thing fixed with a technicality rather than actually letting the people have a say," Brendtro said.
Nelson said Wednesday he doesn't disclose the details of conversations, but he felt he had to get the attorney general's advice after the question was raised. He said he wants the Supreme Court to clarify how constitutional language applies to such measures.
"That's the thing I find strange about this whole advertising campaign," Nelson said. "We're dealing with legal issues here. The legal issues are squarely before the South Dakota Supreme Court and they're going to decide what in fact is proper and how this thing needs to be handled."
Nelson said he "wasn't a fan" of the 1995 Supreme Court decision. "It's forcing me to do something this year that I certainly don't like to do."
However, Nelson said he also believes the attorney general's analysis is sound.
Long based his opinion on a 1995 case involving an initiated measure in Wessington Springs. The Supreme Court said an initiative could not be used to repeal a city ordinance, and Long said that ruling likely applies to initiatives on the state level.
The attorney general said he reads the ruling to mean that initiated measures cannot be used in cases where the appropriate remedy would have been to refer a newly passed law to a public vote. Such referrals must be done within 90 days of the end of the legislative session in which a law was passed, and laws necessary to the support of state government cannot be referred to a public vote.
State officials have said the video lottery is necessary to support state government because it generates about $109 million a year to help provide state financial aid to school districts.
The Supreme Court will hear arguments July 27 in Pierre. The attorney general and Forward South Dakota will file written arguments before the hearing.
In its initial written arguments, Forward South Dakota says the secretary of state can refuse to put a measure on the ballot only if it contains insufficient signatures, is submitted in a flawed form or is submitted late.
The state constitution places no limit on the people's power to propose laws by initiated measure, so such ballot measures can be used to repeal laws, the group contends. An identical attempt to repeal video lottery was placed on the ballot in 1992, and a measure to repeal the sales tax on food appeared on the ballot in 2004, it argues.
In addition, the 1995 Supreme Court ruling on a city issue should not be extended to apply to initiated measures such as the proposed video lottery repeal, the measure's supporters said.
Brendtro said Nelson should place all measures that meet procedural requirements on the ballot. Someone opposed to the measure could then go to court, rather than forcing supporters to file a lawsuit to get on the ballot, he said.
"As far as the discretion, the more I look at this, the more concerned I am. There's nothing in that law that lets Chris Nelson pick and choose what goes on the ballot," Brendtro said. "No secretary of state before has ever claimed they had such authority to decide what they thought was constitutional and what they thought wasn't."
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