The Legislature’s interim task force on initiative and referendum met yesterday and, taking no further public input, approved nine of its twenty draft proposals for changing how South Dakota conducts direct democracy.
Senator Reynold Nesiba lists the proposals that passed, “some of them in significantly amended form,” as Drafts 77, 81, 82, 83, 84, 96, 97, 99, and 100. As currently listed on the LRC website, those proposals would do the following:
- 77: Take away the ability of petition sponsors to determine their petition size and font size and give that power to the Board of Elections.
- 81: Take away the power of the majority to amend the state constitution and raise the threshold of passage to 55%.
- 82: Take away the exemption of initiatives circulating prior to July 1, 2017, from the fiscal-note requirement.
- 83: Take away linguistic accuracy and the default-No advantage referendum sponsors currently enjoy by changing the ballot to make voting “Yes” mean repeal and voting “No” mean keep a referred law in effect.
- 84: Take away the arbitrary power of the Code Commission to resolve conflicts between approved ballot measures and instead resolve conflicts by enacting the measure that receives the most affirmative votes.
- 96: Take away the option of submitting an initiative proposal for LRC review more than 30 months before the general election.
- 97: Take away up to three months of petition circulation time by allowing LRC to withhold its review of initiative petitions received between December 1 and the adjournment of the regular Legislative Session at the end of March.
- 99: Take away resources and convenience from ballot question sponsors by requiring the printing and distribution of tens of thousands of copies of the full text of each initiated measure and amendment (in return for the smaller and legally questionable convenience of not printing the full text on the petition).
- 100: Take away the requirement that ballot question sponsors request a fiscal note and instead let the LRC director automatically produce the fiscal note if the LRC director can identify a fiscal impact from an initiative.
The only proposal that clearly benefits voters is Draft #84, which puts the resolution of conflicting initiatives entirely in the voters’ hands.
There is some debatable good in Draft #83, flipping the Yes/No effect of votes on referenda. When I campaigned to block by referendum the youth minimum wage and the Incumbent Protection Plan in 2016, some voters found it confusing that doing what we wanted—stopping the Legislature’s assaults on voters—meant voting No. If voters treat “refer” and “repeal” as synonyms, then it may sound more logical to say, “Support the referendum! Vote No!”
While I understand proposer Will Mortenson’s logic, Draft #83 actually introduces linguistic inaccuracy into referendum law and onto the ballot. Saying “Vote ‘Yes’ to repeal the Act of the Legislature” incorrectly assumes the Act is valid and must be repealed when in fact the referendum process stops the law from taking effect. There is no law to repeal when voters go to the polls. Draft #83’s “No” language—”Vote ‘No’ to allow the Act of the Legislature to become law”—recognizes that fact. Draft #83 makes a “No” an affirmative act. For every voter this change may help, Draft #83 may confuse another voter. In 2016, voters seemed to have no problem translating their clear distaste for the Legislature’s attack on our minimum wage initiative and on voter rights into 70%+ No votes; there thus seems to be no pressing need to change this ballot language.
Draft #100 removes a little bureaucracy for ballot sponsors but does nothing to give voters more information or power. Draft #82 provides a one-time change that may actually benefit the sponsors of the recreational marijuana initiative, who would love to present an LRC assessment showing their proposal pumping millions of dollars into South Dakota’s general fund.
Drafts 77, 81, 96, 97, and 99 are on the whole anti-initiative measures meant to frustrate the ability of citizens to change their laws and constitution. The task force also shot down the two best improvements in the initiative process on their docket: giving sponsors more time to submit petitions (Senator Nesiba’s Draft #87) and protecting approved ballot measures from Legislative repeal (Chair Emily Wanless’s Draft #114).
The idea of a citizen panel to review ballot measures has been assigned to a subcommittee for further review. The task force will meet one more time, in October, to review that review. A citizen panel could turn into another hindrance to the initiative process, but even if the task force gets that citizen panel concept right, it won’t be enough to reverse the overall negative results the interim task force on initiative and referendum has produced for people power.