The South Dakota Board of Elections is poised to give more love to third parties and less love to Russian hackers and electronic voting machines.
At its September 27 meeting in Pierre, the Board of Elections will consider draft legislation to make it a little easier for third parties to maintain official recognition. Draft Bill #1 makes this change to the definition of political party in SDCL 12-1-3:
(10) “Political party,” commencing with the 2014 general election and every general election thereafter, a party whose candidate for any statewide office at the last preceding general election received at least two and one-half percent of the total votes cast for that statewide office shall remain a political party for the next two general election cycles; [South Dakota Board of Elections, 2018 Proposed Draft Legislation, Draft #1, posted September 2017]
Recall that the 2017 Legislature already cut third parties some slack with House Bill 1034, which expanded the criteria for keeping party status from fielding a gubernatorial candidate who wins at least 2.5% of the vote to fielding any statewide candidate who wins at least that many votes. By the intent of HB 1034, Libertarians would have kept their party status through the 2018 election thanks to the strong showings of their 2014 candidates for attorney general, state auditor, state treasurer, and commissioner of school and public lands, and Constitutionists would have kept their status thanks to 2.5%+ showings by their candidates for secretary of state and public utilities commissioner.
However, by dropping the reference to Governor, HB 1034 made the party recognition criterion reset with every general election. The Libertarians and Constitutionists did place statewide candidates for Presidential Electors on the 2016 ballot, but only the Libs’ Johnson Electors won more than 2.5% (Johnson polled 5.63%; Cons’ man Castle drew only 1.10%). Under HB 1034, the Constitutionists thus lost party status after the 2016 election and would have to petition their way back to status with 6,936 signatures again in 2018.
Draft Bill #1 cuts the Constitutionists a break and lets their strong (3.97% for Lori Stacey for SOS; 4.95% for Wayne Schmidt for PUC) 2014 vote tallies keep their brand on the ballot through the 2018 election.
If the Board of Elections approves these proposals on September 27, the Secretary of State will forward them to the Legislature for consideration and passage as emergency bills (i.e., to be enacted immediately, before the 2018 primary) in the 2018 Session.
The Libertarian and Constitution parties of South Dakota are still suing South Dakota over its burdensome ballot access laws for new political parties. Former Libertarian leader Bob Newland sends his observations on a deposition taken Wednesday of the enforcer of those objectionable ballot access laws, Secretary of State Shantel Krebs:
Yesterday, May 3, I had the distinctly unpleasant experience of sitting through a deposition of SoDak Secretary of State Shantel Krebs taken by ACLU Board Member Steven Pevar. On behalf of the SoDak Libertarian and Constitution Parties and me as a private citizen, the ACLU sued AG Marty Jackleg and SOS Krebs, alleging onerous enforcement of requirements for alternative political parties to attain ballot status in South Dakota.
Krebs described one of the mandates of the SOS as “to ensure fairness in all aspects of the election process.” When asked, for example, how shortening the period during which candidates for office may circulate a nominating petition (a change she endorsed in the legislature), she refused to answer, saying “I have no opinion.”
When asked why it was “fair” to have a candidate for lieutenant-governor or the secretary of state or the attorney general nominated in party conventions, while the gubernatorial candidate must submit to a primary election contest, she again demurred to answer.
For more than five hours, we sat in a room which she insisted had to be 80 degrees (“I am so cold.”) while she exhibited hostility and anger at the imposition of having to defend her politics and actions.
Expect to see Federal Judge Karen Schreier issue a ruling without a trial that will force the legislature to change the laws, which she has already characterized as “onerously restrictive” regarding requirements to put people on the ballot [Bob Newland, e-mail to Dakota Free Press, 2017.05.04].
Newland certainly has a dog in this fight, so I would like to read the deposition itself before passing any judgment on Krebs’s performance Wednesday before a lawyer pressing a lawsuit against her office. I will say, however, that in general, a Secretary of State (or any smart Democrat planning to campaign for the job of chief election officer that Krebs wants to leave so she can go to Congress) should support laws and policies that make it easier, not harder, for citizens to organize parties and run for office. Requiring a new party to organize by the last Tuesday in March, before the dust has even settled from the Legislative Session, before the major parties have made clear what candidates they are nominating for major office, is an unnecessarily oppressive and unconstitutional restriction on the right of minor parties to challenge the failures of dominant parties.
Related: We may need Judge Schreier to make it easier for new parties to get on the ballot, but at least the 2017 Legislature made it easier for new parties to stay on the ballot. Remember that House Bill 1034, signed by Governor Dennis Daugaard in March, included in its many election-related minutiae Section 7, which changes the standard for keeping political party status from the party’s gubernatorial candidate winning 2.5% of the popular vote in the general election to any statewide candidate from that party achieving the same percentage of the vote.
*Update 2017.08.15 18:44 CDT: I have edited this columnist’s text at his request.
But the South Dakota Legislature’s effort to strip voters of their constitutional right to legislate and make Pierre the sole lawmaking authority is not limited to fast-tracked House Bill 1069. Here is the list of bills filed so far that either tinker with voter-approved laws or revise petition and election law to weaken voter power. I mark in red the worst bills, those that definitely deserve a NO vote.
Tinkering with Voter-Approved Laws:
HB 1069: An Act to repeal and revise certain provisions related to campaign finance and to declare an emergency.
Intent: Repeal IM22’s $100 limit on gifts from lobbyists to lawmakers and immediate family and replace it with a soft $100 cap on gifts riddled with exceptions (including all those free meals on the Legislative Social Calendar).
HB 1175: “An Act to revise the method of establishing certain interest rates.”
Originally a carcass bill, HB 1175’s title suggested possible tinkering with the 36% rate cap on payday lending. An amendment offered Monday, Feb. 13, showed the bill targets the interest rates used to figure damages in court cases. No harm, no foul.
SB 131: An Act to revise certain provisions concerning the period of time elected officials are prohibited from lobbying after leaving office.
Intent: now nearly replicates IM 22 Section 65 lobbyist revolving-door limits; originally offered a significantly weaker replacement. Forbids any “No elected officer, department or agency head, or division director, or the highest paid employee reporting to such person” from lobbying for two years after leaving government service.
HB 1034: An Act to establish certain fees for receiving electronic files of petitions, to revise certain provisions concerning filing petitions and other documents, and to revise certain provisions concerning elections and voting.
Intent: mixed bag!
On the bad side, HB 1034 strikes the Secretary of State’s obligation to include Pro and Con statements from interested parties on the official state ballot question pamphlet. While these Pro/Con statements can include utter bushwah, they are also one opportunity for honest, low-budget grassroots campaigns to reach every voter in the state with a few paragraphs explaining their measure.
On the good side, HB 1034 improves openness by establishing fixed, affordable fees for obtaining copies of petitions that citizens can review for fraud and grounds for challenges.
HB 1074: An Act to provide for limits on certain out-of-state contributions to ballot question committees.
Attacking: funding for ballot measure campaigns.
Intent: Amended to cap contributions from out-of-state residents to ballot question committees to $100,000; originally imposed an unworkable and unconstitutional limit on out-of-state contributions to ballot question committees.
SB 77: An Act to provide for a fiscal note for any initiated measure or initiated amendment to the Constitution that would have a fiscal impact on the state.
Attacking: initiative process.
Further delay circulation of initiative petitions by making sponsors wait for Legislative Research Council to complete a fiscal analysis;
Make it harder to circulate initiative petitions by requiring circulators to “provide notice to any person who signs the petition that the initiated measure or initiated amendment to the Constitution may have an impact on revenues, expenditures, or fiscal liability of the state or its agencies and subdivisions”;
Deter voters by cluttering ballot with fiscal impact statement; committee amendment limits statement to 50 words.
SJR 2: A Joint Resolution proposing and submitting to the electors at the next general election amendments to Article XXIII, of the Constitution of the State of South Dakota, relating to amendments to the Constitution.
Attacking: process of passing constitutional amendments.
Raise the vote required for the Legislature to put a constitutional amendment to a public vote from simple majority to two thirds of each chamber;
Raise the vote required by the public to amend the constitution from simple majority to 60%.
There a couple faintly pro-democracy measures in the hopper. One such exception to the Legislature’s anti-democratic rampage: Senator Stace Nelson has proposed a constitutional amendment that may increase voter power a smidgeon. Senate Joint Resolution 1 would put on the 2018 ballot an amendment to make the Secretary of Veterans Affairs an elected office instead of a gubernatorial appointment.
SB 171 would create a task force to study “government, campaign finance, lobbyist restrictions, and ethics,” the subjects of IM 22. (Status: passed Senate, referred to House State Affairs.)
I’m no fan of task forces, but I would prefer to see killed all of the above proposals on I&R and perhaps all of the “replacement” bills offered to compensate for the Legislature’s hasty repeal of IM 22 in favor of empaneling these task forces and conducting public hearings statewide to give voters another chance to tell legislators what they really want.