Veto Day in South Dakota

Governor Kristi Noem still has a shot at political redemption.

Tomorrow (Monday) is a big day for Governor Kristi Noem.

It’s Veto Day in South Dakota, the last scheduled day of the 2021 legislative session. And there’s only one bill to discuss: House Bill 1217, a bill which would prevent biological males from participating in sports designated for females within the state.

Last weekend, I wrote about Gov. Noem’s “style and form” veto of House Bill 1217. Since then, the governor has come under significant fire from conservatives nationally and legislators within the state. Agree or disagree with her decision, dozens of hostile interviews later, she’s still sticking to her guns and committing to the same “style and form” veto.

On Monday, Gov. Noem held a press conference explaining her “style and form” veto. She argued that South Dakota couldn’t take on the NCAA on its own and needed to build a coalition prior to passing legislation. (The coalition already exists — four states have now signed legislation into law defending women’s sports.) Noem also announced a brand new “initiative” her team claims they had been planning all along: DefendTitleIXNow.com, a petition website her team created last Sunday according to WHOIS records. None of this went over very well.

Gov. Noem went on Tucker Carlson on Monday night to explain. That didn’t go over very well, either:

There’s plenty to discuss in regard to Noem’s response this week — “conservative cancel culture” being a case study in what not to do in crisis PR — but for the purposes of this newsletter, let’s leave the past in the past. Let’s talk about tomorrow.

What’s Going to Happen on Monday?

Gov. Noem’s “style and form” veto of House Bill 1217 was controversial among South Dakota legislators for two reasons. First, she gutted the bill to the point of rendering it almost meaningless. This on its own is probably enough for her style and form “changes” to fail in the House. But second, she exceeded her constitutional authority by using the “style and form” veto to make sweeping changes to legislation. It’s pretty clear from the South Dakota Constitution that the intent of this power was to fix typos and grammatical mistakes, not redline entire sections.

So here’s what’s going to happen on Monday:

The House and Senate will convene. Gov. Noem’s “style and form” vetoes of House Bill 1217 will be reported to the House. The House will have the opportunity to vote on whether to accept Gov. Noem’s changes, with a simple majority needed to pass them into law. If the House accepts the changes, the Senate would need to do the same with a simple majority.

But that’s not going to happen. Based on what my organization is hearing, these “style and form” changes are going to die a very quick death in the House.

At that point, House Bill 1217 returns to Gov. Noem’s desk in its original form. She will have a decision: sign, or veto.

Is There a Path to Political Redemption for Gov. Noem?

Many believe that Gov. Noem will veto the bill again, which will send it back to the legislature needing a two thirds majority from both House and Senate to become law. (The House likely has the votes. The Senate would need 4 Senators to flip.)

But I’m still hopeful that the governor will sign. In her many interviews this week, Gov. Noem has insisted repeatedly that this wasn’t a veto. Some examples:

Tucker Carlson: “But you vetoed the bill.”
Gov. Noem: I did not veto the bill. I did a style and form revision and asked the legislature to change it so that I can win.”

Steve Doocy: “So you’re taking some heat because, you know, you had previously said you’re going to sign that thing. Now you’ve backed away from it. Explain what’s going on.”
Gov. Noem: “No… I did not veto the bill, Steve. What I did was ask for some changes, and I’m asking the legislature then to sign it.”

Gov. Noem to Glenn Beck: “Now, the lies about what’s going on in South Dakota right now are rampant across the country. I did not veto a bill. I did not veto the bill that the legislature sent me. What I gave them was a style and form revision that they can accept… I did not veto a bill, that’s a complete lie that’s out there.

There are plenty of examples of this. Noem has relied on the talking point that a “style and form veto” is not a veto. Noem’s communications director, Ian Fury, used similar language in an angry missive to conservative reporters last week:

“Governor Noem faced tremendous pressure from corporate bigwigs and the radical left alike to veto the bill. But she didn’t do that. Instead, she returned it to the legislature…”

Okay. Got it. Not a veto. So, what’s going to happen on Monday? If the legislature rejects the changes, which they are likely to do, will Gov. Noem really veto House Bill 1217 after spending the last week telling conservatives that it wasn’t a veto? What a wild ride that would be — from “excited to sign this bill very soon” to “asking the legislature to change it” to a total veto.

If Gov. Noem signs the bill, and makes South Dakota the fifth state in the Union to protect women’s sports, she can survive this controversy. She could even ask for changes later from the legislature, and nobody would notice. But if she vetos the bill? Well, she can kiss those presidential aspirations goodbye.

EDIT (9:15AM EST): Adding this tweet from a well-known South Dakota legislator. I think we can all agree: