A Follow-Up on South Dakota Governor Kristi Noem’s Record

I published a piece on NRO this morning raising doubts about Kristi Noem’s record as governor of South Dakota. As part of my reporting, I spoke with Republican lawmakers, activists, and others in the state — including one policy staffer with firsthand experience working in the governor’s office — who have grown increasingly concerned about the governor’s close relationship to business interests with a long record of advocacy for far-left social policy.

The thrust of my piece is that some of the powerful corporate influences in Noem’s office had business interests that would have been endangered by the passage of HB 1217, a South Dakota law proposing to ban biological males from competing in women’s sports. The biggest of these interests is Sanford Health, which owns some major athletic complexes in the state and profits off of transgender surgery and puberty blockers. Noem surprised many of her conservative fans by killing the women’s sports bill. And many of the South Dakotans I talked to believe Noem has a record of siding with big business over social conservatives in the state legislature.

The other significant revelation is that South Dakota’s resistance to pandemic-lockdown measures — which Noem has made the cornerstone of her claim to the national spotlight — largely occurred despite Noem rather than because of her. She tried to lock down in the state in April, but the staunchly conservative South Dakota House of Representatives shot down her efforts.

Noem’s office is understandably displeased with the piece. Ian Fury, her communications director (with whom I corresponded a bit while writing the article), tweeted a brief response:

There are a couple quick points worth addressing here. 

Noem’s story on HB 1217 is that she was not vetoing the bill, but merely issuing a “style-and-form” revision because of concerns about the legislation’s “overly broad language,” which she argued could open South Dakota up to frivolous lawsuits at the taxpayer’s expense. But when the style-and-form revisions arrived back at South Dakota’s House of Representatives for review, many conservative legislators said the bill was unrecognizable. Unlike a normal style-and-form veto, a tool for minor revisions “typically used to fix typos and clerical errors” according to the Argus Leader, Noem demanded sweeping changes that would have effectively gutted the legislation completely. That move alone outraged many, garnering widespread accusations of unconstitutional abuse of power. “Legislators are the ones who make the laws and the governor signs them,” Representative Rhonda Milstead, a Sioux Falls–based co-sponsor of the bill, told the Argus Leader. “She’s gutting the bill and writing a new law and that’s not her job.”

As a result, the legislature — which had originally passed HB 1217 by 50–17 in the House and 20–15 in the Senate — overwhelmingly rejected Noem’s “style-and-form” revisions, sending it back to the governor’s desk in its original form. Noem promptly sent it back to the legislature with a letter instructing legislators to treat it “as a vetoed bill” — meaning that a two-thirds majority was required to overcome the governor’s proposed reforms — while simultaneously insisting that it was “not a veto.” When the bill inevitably died in the House following a failure to reach the two-thirds threshold, conservatives — both in South Dakota and across the country — were outraged.

In the face of that swift backlash, Noem’s office scrambled to release two executive orders promising to protect women’s sports. But the move was almost entirely symbolic, as the executive orders had no legal-enforcement mechanism. Furthermore, the executive orders mandated that sports participation in K–12 correlate with the gender on one’s birth certificate — but as many frustrated state legislators pointed out at the time, it’s legal to change the gender displayed on an individual’s birth certificate in South Dakota. Even if the executive orders did have the power of law enforcement behind them, they would have likely failed to prohibit transgender women from competing in biological women’s sports, at least at the pre-collegiate level.“It’s all a smoke screen to make people think she’s doing something when she’s really not doing anything. I can’t express my frustration enough,” Representative Taffy Howard, a co-sponsor of HB 1217, said of Noem’s executive orders in an interview with the South Dakota–based Rapid City Journal.

My piece addressed Fury’s second point extensively. It’s true that some high-ranking Sanford executives called on Noem’s office to lock down South Dakota; no, South Dakota did not lock down. That might be a convincing counterpoint to scrutiny of Noem’s friendly relationship with Sanford if Noem had actually been the architect of that anti-lockdown stance, as she now claims. But she wasn’t — in fact, she was a vigorous opponent of the position until the political winds changed in its favor.