South Dakota lawmakers took aim at the state’s century-old initiated measure and referendum process during the 2018 legislative session, passing nearly a dozen bills to tighten citizens’ rights to propose their own laws.
Many of the measures emerged from the interim Initiative and Referendum Task Force, a bipartisan group that met during the spring, summer and fall of 2017. Several others came directly from GOP leaders such as House Speaker Mark Mickelson, who said he’s fed up with out-of-state interests using the process to advance their own interests.
South Dakota in 1898 became the first state to allow citizens to initiate their own proposed laws out of fear that the state’s legislators and governor could succumb to the influence of East Coast railroad money, but Mickelson said the process is “being cluttered and crowded out by folks that don’t live here.”
“So now, we get used as a testing ground because we’ve got cheap media markets and low ballot signature requirements to get on,” Mickelson said.
Grassroots groups such as Dakota Rural Action opposed the vast majority of the bills, saying they’re part of a chilling process that has been chipping away at citizens’ constitutional rights.
“We did not ask for the plethora of bills coming out of that task force, many of which, in our opinion, undermine the process,” said Rebecca Turk, Dakota Rural Action’s lobbyist.
The 2017 Legislature created the interim task force after voters in November 2016 passed a sweeping campaign finance reform bill (later repealed by legislators) and a victims’ rights bill backed by out-of-state interests.
One measure put forward by the task force, Senate Joint Resolution 1, aims to raise the passage threshold for initiated constitutional amendments from a simple majority to a 55-percent margin. The resolution passed both chambers, putting the issue on the November ballot.
Task force chairman Sen. Jim Bolin, R-Canton, said the change is necessary to protect the state’s constitution.
Sen. Reynold Nesiba, D-Sioux Falls, one of two task force members to oppose the idea, sees no sense in raising the vote threshold to an arbitrary number, but his opposition centers much on timing. Voters are still fuming over the Legislature’s 2017 repeal of Initiated Measure 22, the 2016 ballot initiative that sought to reform state campaign finance and ethics laws, he said.
“Bringing this up right now a year after we had that contentious conversation is really horrible timing and is disrespecting the peoples’ voice in South Dakota,” Nesiba said.
Lawmakers during the 2018 session also considered 16 bills on initiated measures and referendums during the 37-day session, passing 11 and defeating five.
House Bill 1177, a non-task-force bill sponsored by Rep. Drew Dennert, R-Aberdeen, and Sen. Jeff Monroe, R-Pierre, requires that circulated petitions include the name, phone number and email address of the circulator and a statement about whether that person is a volunteer or is being paid. Paid circulators must also reveal how much they are being paid.
The original version required petition circulators to provide a residential address, but that was removed by amendment out of safety and privacy concerns.
Mickelson, R-Sioux Falls, said the signature-collection process in South Dakota has become anonymous, with the job often performed by folks who don’t reside in the state. He said the goal is to shed some light on who is doing the work.
Senate Minority Leader Billie Sutton unsuccessfully urged colleagues to vote down the bill, saying it strips power from grassroots organizations and residents.
“I think it could have a chilling effect on volunteers having to go through a little bit of an onerous process,” said Sutton, D-Burke.
House Bill 1196, a non-task-force bill sponsored by Mickelson, further raises the stakes against out-of-state-circulators.
It requires each circulator to file a sworn affidavit with the secretary of state providing seven personal details, including the current state in which the petition circulator is licensed to drive, a driver license number, the current state of voter registration, the length of time at the current street address and two previous addresses.
Turk noted the ludicrous nature of two of the bill’s additional disclosure demands:
• One requires that circulators provide the current physical street address of their immediate family. “People don’t necessarily live in the same state as their immediate family,” she said.
• Another requires that circulators sign a sworn statement indicating they plan to stay in the state of South Dakota after gathering signatures. “What if they don’t?” Turk asked.
Rep. David Lust, R-Rapid City, said he understands HB 1196’s intent but called the expansive legislation a “terrible overreach” and “a litigator’s dream.”
“This has gotten way off the rails,” Lust told his fellow House State Affairs Committee members.
Few heeded Lust’s warning, as the committee approved the measure by an 8-4 margin. It passed the House and Senate and awaits the signature of Gov. Dennis Daugaard.
House Bill 1007, which was advanced by the task force, requires that no initiated measure embrace more than one subject. Rep. Tona Rozum, R-Mitchell, said the bill is in response to voters’ 2016 passage of IM 22, which dealt with at least five subjects: campaign limits, campaign finance, task force creation, democracy credits and a legislative appropriation.
Voters approved IM 22 on a 52 percent to 48 percent vote, prompting state legislators to file suit and secure an injunction to block the law from taking effect. Calling IM-22 “unworkable,” Mickelson convinced legislators to repeal the measure and replace it with several weakened provisions. Voters in November will make another attempt at campaign finance and ethics reform with Constitutional Amendment W.
House Bill 1304, a non-task-force bill sponsored by Mickelson and Sen. Blake Curd, R-Sioux Falls, makes two changes to the challenge process for ballot initiatives and referendums. It allows challengers to use the secretary of state’s signature verification results in court and it would require that the sponsor, not the attorney general, to defend against any challenge.
Other less controversial bills tweaking the process, all introduced by the task force, won passage during the session:
• House Bill 1004 ensures that the Board of Elections has the ability to determine the size of the petition and the font size.
• House Bill 1005 simplifies the language regarding the effect of a vote on certain ballot measures.
• House Bill 1006 expands the role of the Legislative Research Council in commenting on submitted ballot initiative and referendum language, allowing the director to make substantive comments in addition to making style and form corrections. The bill also limits the time the LRC must respond, essentially blacking out the dates from Dec. 1 through the end of the legislative session in March.
• Senate bills 9 and 13 require that sponsors of initiated measures and amendments include fiscal notes when the proposed legislation could affect the state budget.
• Senate Bill 10 determines that if two or more passed initiated measures or amendments to the Constitution contradict each other, the one earning the most votes wins.
• Senate Bill 11 requires that sponsors of initiatives or initiated constitutional amendments submit a copy of the measure to the Legislative Research Council for review and comment not more than six months before it may be circulated for signatures.
Legislators did reject five measures related to the initiated measure and constitutional amendment process:
• Mickelson’s House Bill 1201 sought to require petition sponsors to disclose the total amount of compensation, consideration or other remuneration received for their efforts. It was killed on the House floor 34-32.
• House Bill 1275, sponsored by Speaker Pro Tempore Rep. Steven Haugaard, R-Sioux Falls, would have expanded the signature requirements for ballot initiatives by requiring that signatures be gathered from qualified electors from a majority of the senate districts. House members rejected the measure on a 20-45 vote.
• House Bill 1302, sponsored by Rep. Chip Campbell, R-Rapid City and Sen. Lance Russell, R-Hot Springs, sought to prohibit initiated measure or constitutional amendment ballot groups from paying petition circulators. It was unanimously killed in the House State Affairs Committee.
• Senate Bill 12, put forth by the task force but defeated on the Senate floor 16-17, would have required petition circulators make available the full text of a ballot measure to petition signers instead of requiring that the full text be placed on the petition.
• Senate Bill 124, sponsored by several members of the task force but not endorsed by the full group, would have provided a felony penalty for certain violations of petition circulation laws. The Senate Judiciary Committee killed the bill on a 6-1 vote.