The Kristi Noem Veto, Explained

A victim of bad advice, the South Dakota governor is inexplicably destroying her own political career.

On Friday, South Dakota Governor Kristi Noem announced via a 23 tweet thread on Twitter that she would be issuing a “style and form” veto of House Bill 1217, a bill which would prevent biological males from participating in sports designated for females within the state. This came after Noem tweeted that she was “excited to sign this bill very soon” on March 8th:

So what happened during the last two weeks to change her mind? I’ll do my best to explain everything in this post.

The story of House Bill 1217

As of this writing, 29 state legislatures across the country have introduced legislation to protect women’s sports. Two states have signed that legislation into law — Idaho Governor Brad Little signed the “Fairness in Women’s Sports Act” in March 2020, and Mississippi Governor Tate Reeves signed a similar bill earlier this month.

House Bill 1217, called “An Act to promote continued fairness in women's sports,” was introduced by South Dakota Rep. Rhonda Milstead last month. The bill advanced out of committee in short order on February 22nd, 11-2, and passed the full House on February 24th, 50-17. Many speculated that the bill would ultimately die in the Senate, and there’s a reason for that.

South Dakota is a one-party red state, but it’s a state where the Chamber of Commerce and other socially left-wing factions, such as financial and health sector corporate interests, enjoy a great deal of power. The Senate is controlled by Republicans 32-3, but conservative bills that pass the House easily often fail to escape committee. Last year, the House passed legislation, 46-23, banning puberty blockers, cross-sex hormones, and surgeries for the purpose of sex changes for children under the age of 16, but the bill died in committee. While Governor Noem managed to avoid publicly endorsing or condemning the bill, she did tell one media outlet that she had “concerns.” (Sources within the state have told my organization that she effectively killed it.)

But protecting women’s sports isn’t exactly a radical idea. Not only have 28 other states introduced similar legislation, but 25 Members of Congress and 18 U.S. Senators have signed on to a federal version. Would this really be a difficult lift in a state President Trump won by 26 points? Unfortunately, yes. On March 3rd, like so many good bills before it, House Bill 1217 was killed in a Senate committee.

But something strange happened. Using a rarely used legislature procedure colloquially referred to as a “smoke out,” the Senate voted to revive the bill out of committee, 18-17. The bill then passed the Senate on March 8th, 20-15. My organization celebrated the bill making it to Governor Noem’s desk:

Noem responded the next day by quote tweeting us and promising to sign House Bill 1217 “very soon.”

So, what happened?

The following is based entirely on what we’ve been able to ascertain from our sources within the state, which include several state legislators and others familiar with South Dakota politics.

For two weeks, Governor Noem effectively went dark. In the first week, her office told supporters of House Bill 1217 that a decision would be coming shortly. In the second week, when rumors began to fly that she might change her mind about the bill, her office ignored requests for meetings with the bill’s sponsors and even with Republican House and Senate leadership.

Meanwhile, she and her team were actively engaging critics of the legislation, which included the South Dakota Chamber of Commerce, the Sioux Falls Chamber of Commerce (arguably more powerful than the state chamber), the South Dakota Board of Regents, the Sioux Falls Sports Authority (presumably representing the interests of the NCAA), left-wing advocacy organizations, and, not surprisingly, Amazon, the censorious Big Tech behemoth, which is planning to bring more than 1,000 jobs to the state by building a fulfillment center in Sioux Falls.

By the end of the second week, it was widely known that Noem had listened to the advice of the bill’s critics and was preparing to veto, and sure enough, she dropped a “style and form veto” at 4:30 P.M. on a Friday. In the politics business, we call that a “news dump,” a strategic decision to release bad news at an odd hour with the hope that no one notices. Don’t worry. At American Principles Project, we don’t mind working weekends.

What is a “style and form veto”?

Let’s find out from the South Dakota Constitution:

Bills with errors in style or form may be returned to the Legislature by the Governor with specific recommendations for change. Bills returned shall be treated in the same manner as vetoed bills except that specific recommendations for change as to style or form may be approved by a majority vote of all the members of each house. If the Governor certifies that the bill conforms with the Governor's specific recommendations, the bill shall become law. If the Governor fails to certify the bill, it shall be returned to the Legislature as a vetoed bill.

In other words, it’s largely used to correct sentence fragments and typos.

What “errors in style or form” did Governor Noem recommend for change?

You can read all of Noem’s recommendations for change here, but let me summarize her changes to the four sections of the bill:

  • Weakens Section 1 dramatically by changing the operative language of the bill. Previously the bill stated: “A team or sport designated as being female is available only to participants who are female, based on their biological sex…”

    Noem’s edit: “A team or sport designated as being female is available only to participants who are female, based on their biological sex, as reflected on the birth certificate or affidavit provided upon initial enrollment…”

    According to South Dakota administrative law, any individual can make amendments to vital records (which would include changing an individual’s sex on a birth certificate) as long as the individual presents an “affidavit of correction.” The National Center for Transgender Equality verifies as much on their website.

    In other words, under Noem’s proposed changes, a biological male would easily be able to participate in women’s sports in South Dakota (even in K-12) as long as he files the proper paperwork.

  • Scraps Section 2 entirely. Section 2 would require student athletes to submit a written statement including their age, sex, and an assurance that they haven’t taken performance enhancing drugs in the last year. This is the mechanism which makes the bill remotely enforceable — a false statement would provide cause for removal from athletic activities.

  • Scraps Section 4 entirely. Section 4 provided a cause of action to women who were unfairly deprived of athletic opportunities due to being displaced by a biological male.

Additionally, Noem argues that the bill shouldn’t apply to collegiate athletics at all because South Dakota shouldn’t want to upset the NCAA:

I am also concerned that the approach House Bill 1217 takes is unrealistic in the context of collegiate athletics… South Dakota has shown that our student athletes can compete with anyone in the country, but competing on the national stage means compliance with the national governing bodies that oversee collegiate athletics. While I certainly do not always agree with the actions these sanctioning bodies take, I understand that collegiate athletics requires such a system – a fifty-state patchwork is not workable.

In other words, despite her claims to the contrary, Noem is attempting to gut this bill to the point of rendering it meaningless. Kristen Waggoner, General Counsel at Alliance Defending Freedom, put it succinctly:

Is this a constitutional use of the “style and form veto”?

Not even close. My organization has spoken to several people on the ground who have told us that dozens of legislators are hopping mad at her for a clear “abuse of executive power.” Meanwhile, left-of-center interests are mad she didn’t veto the bill outright. It will be fascinating to see what happens in the coming days. From what we’ve heard, the bill sponsors will not be consenting to these changes — and there may even be a legal challenge as to whether this was a legitimate use of the “style and form veto” or not. (I hear Kristen Waggoner is a lawyer. I don’t know. We’ll see what happens.)

As we tweeted on Saturday after Noem attempted to backtrack amidst unprecedented criticism from the Right, she has three options: sign the bill, let the bill become law without her signature, or veto the bill. If she wants to amend it, she should make her case through the legislative process after the bill becomes law.

It’s still possible — if she changes course quickly — that Noem could move past this and salvage her political career. Own the legislation. Show Amazon that South Dakota won’t be bullied. Tell the NCAA to shove it. But I’m not optimistic that’s going to happen, which is a real shame.

It’s well known that Noem had hopes of building a national profile and perhaps even running for president in 2024. People really liked her. She handled COVID-19 beautifully. Her speech at Mount Rushmore with President Trump was exceptional. And now she loses everything she built, and for what? To please the Chamber of Commerce? To keep a few college presidents happy? Whoever advised her on this issue did her a great disservice.