Senator Jim Bolin presented the Initiative and Referendum Task Force’s mostly bad reforms to the Legislature’s Executive Board Monday. Speaker and E-Board chairman G. Mark Mickelson hurried Bolin through the pile of bureaucratic complications designed by Republicans to further restrain citizens from exercising their right to make and repeal laws directly.
Speaker Mickelson did lock his torpedoes on one measure, Draft #99, the proposal to take the actual text of an initiated measure off the petition but explode the paperwork requirement for circulators by forcing them to print out and provide to all signers copies of the initiative:
As a guy that collected a fair amount of signatures—no one takes the handouts, but they will flip over and read the back of what they are signing, and there is so much lying, cheating, and stealing out there that you’re just making it that much easier [my transcription; Rep. G. Mark Mickelson, comments from the chair, Executive Board meeting, Pierre, SD, 2017.11.13].
Speaker Mickelson deemed most of the I&R Task Force’s proposals “excellent work.” Specifically, Mickelson encouraged Bolin “to be even more bold” with his measure raising the vote threshold required to amend the constitution and shoot for an even higher threshold than 55%. Mickelson justified that call with this remarkably twisted, inaccurate, insulting discourse:
We were developed by the railroads. That’s the reasons there [are] two Dakotas. That’s the reason we’re laid out east to west. Our populist farmers were worried that the East Coast railroad money would develop too much influence in Pierre in our state government, so they wanted the ability to bypass state government because of their concerns about the out-of-state money’s influence….
From 1898 to 1972, you could not initiate a constitutional amendment, you could only initiate a statutory change. In 1972 we gave the citizens the right to initiate a constitutional amendment by majority vote subject to the ratification of the Legislature. In 1989 we took away the Legislature’s ratification of initiated constitutional amendments, and we now allow the equivalent of a foreign government to come in and spend unlimited advertising to amend our constitution by popular vote and don’t allow ourselves to spend a nickel against it. New Jersey—it’s part of Italy.
It’s no way to amend a constitution. I would expect there will be some legislation that will either take away the ability of an initiated constitutional amendment completely or, at a minimum, have the legislature ratify that [Mickelson, 2017.11.13].
Mickelson’s view of New Jersey’s ethnicity seems rather narrow and outdated. 16.8% of New Jerseyans claim Italian in their ancestry, but 15.0% claim Irish and 11.4% claim German. 23.6% of New Jersey’s population is foreign-born, but the countries making up the largest portions of that immigrant population are India, the Dominican Republic, Mexico, the Philippines, Ecuador, Colombia, Korea, China, Peru, and Poland. But whatever the statistics, I haven’t encountered many initiative petition circulators or sponsors from New Jersey or Italy, and to claim that Americans from New Jersey are really Italian smells a bit like saying our Catholic Senator Mike Rounds really works for the Pope.
I am complete puzzled by Mickelson’s claim that we “don’t allow ourselves to spend a nickel against” whatever bogeyman infiltrators he imagines are petitioning us into an Italian dominion. Campaign finance law sets almost no limits on spending on ballot questions, and those laws apply equally (per the Fourteenth Amendment) to all Americans, including South Dakotans. Speaker Mickelson can raise and spend all the money he wants on his tobacco tax and out-of-state money ban initiatives; his rich friends in downtown Sioux Falls and at GOP headquarters can raise and spend all the money they want telling us to Vote No on Everything.
Mitch Richter, the very much South Dakotan sponsor of the Voter Protection and Anti-Corruption Amendment that Mickelson would have us believe is a foreign invasion, takes strong exception to Mickelson’s denigration of direct democracy:
The public is appalled that the politicians continue this disrespect of South Dakota voters…. They need to respect our vote and the people’s initiative process and stop trying to take power away from the people. The proposals floated today by the legislature would destroy the people’s initiative process taking away our voice and our choice. South Dakotans want to return power to the people.
That’s why more than 50,000 South Dakota voters signed the Anti- corruption Voter Protection Amendment. The legislature needs to stop the attacks on voters and just let the people vote [Mitch Richter, Represent South Dakota, press release, 2017.11.13].
Richter sees more clearly the intent of Mickelson’s remarks: Mickelson and his Republican colleagues want to take away we the people’s right to amend our own Constitution. Mickelson and the Republicans want to reassert the Legislature’s total control over the laws of our land. Mickelson doesn’t want us, the people for whom he works, spoiling their elitist fun. For Mickelson, Bolin, and other Republicans, government is an exclusive club, and they don’t want us in it.
Increasing numbers of voters are repulsed by the entire political enterprise as it has been conducted of late, and the Democrats have contributed to the growing perception that democracy as it is practiced is not working. People who do politics are perceived as not very nice people–ignorant, irrational, biased, and mean.
There are alternatives to Democrats and Republicans, and informed people are exploring them. Brennan suggests “epistocracy” which means governing by the knowledgeable. American democracy has lost the belief and trust it once had. The election of Trump has proven that Americans are as susceptible to moral and intellectual failure as the Germans of the 1930s. American democracy, as we have come to understand it, is going out of business [David Newquist, “Why You May Not Have Noticed That America Ended,” Northern Valley Beacon, 2017.11.09].
Epistocracy, philosopher kings… I would love to be governed by the best and brightest, as we were just a year ago by the Obama Administration. But how do we establish a fair system in which only knowledgeable people vote and govern? What objective standards could we use to say to any citizen, You’re not smart enough to vote or run for office?
I have difficulty coming up with any such objective standard to exclude citizens from government. Smart people can govern well, but they can also come up with smarter corruption scams. Purportedly intelligent graduates of good universities can govern chaotically and selfishly. I know darn well some people are too stupid to pick a President, a governor, or a mayor, let alone be one, but I dread trying to write that personal assessment into law, or opening the door for other ill-intentioned lawmakers to write their intelligence standards into law in ways that would unfairly discriminate against immigrants, poor people, Indians, senior citizens, people with disabilities, manual laborers, people who work the night shift, or other groups whom certain political interests might want to ban from voting and serving in government.
I can’t take away the voting rights of 63,000,000 Americans just because I think their votes for Donald Trump prove they lack the intellect necessary to run a democracy. The results of the 2016 election may call into question the reliability of democracy to produce good government, but what practical and moral alternative do we have?
Unless someone can provide me with a fair literacy test, education standard, or other rule that would reliably identify intelligent, reliable decision-makers without allowing unjust discrimination, I have to hold to democracy as the only just political system. We are all sinners; we are all prone to error. But what little dignity we fallible humans may have, each of us has equally. Each of us deserves an equal say in our fate. Even if the fate to which that equality leads us undoes us all, we cannot surrender our equal say or take that equal say away from our moral equals.
Senator Jim Bolin keeps crying that we need to protect our state constitution, and yesterday the interim task force on initiative and referendum mostly agreed with him, approving his proposed 55% vote threshold to pass constitutional amendments.
But I keep asking: protect our state constitution from what?
“Our constitution needs protection against a wide range of efforts to change it and to reform it and to alter it in ways that I think the general public is not really appreciative of,” Bolin said during yesterday’s task force meeting. But what “wide range of efforts” are we talking about? What harmful amendments have been piled onto our constitution?
Out of five amendments proposed last year, only two passed. One, the relatively innocuous clarification that allowed Bolin and his fellow legislators to move vo-tech governance from the Regents to a separate board, passed by only 50.6%. With his 55% threshold, does he mean to say that the vo-tech board that he prime-sponsored was a bad idea?
The other amendment that passed last year was the crime victims bill of rights. That measure, branded as “Marsy’s Law,” was backed by one rich California billionaire who hired Kelsey Grammer to pitch it in TV ads. It won 59.6% of the vote. With his 55% threshold, does Bolin mean to say that this clear writing of one Californian’s vanity bill into our constitution is not an ill from which we need protection?
As I wrote in my July 25 analysis, South Dakotans since 1972 have been more willing to use their voting power to change their constitution than to change their laws. Is Bolin saying we need to protect South Dakotans from themselves? If so, how does a conservative Republican like Bolin justify such nanny-statism by anything other than an elitist disregard for the wisdom and rights of the people who vote to put him in office?
Amending our constitution is hard enough. We don’t need to impose any additional patronizing hurdles to the people’s right to govern themselves.
After just a day and a half of hearings, the Initiative and Referendum Task Force has already asked the Legislative Research Council to draft at least seven bills. This list of bill draft requests, posted on the committee website, may not be all of the draft requests; at Wednesday’s meeting, LRC attorney Wenzel Cummings said he would keep legislator requests for bill drafts confidential if they wished.
First, I want to note that the fact that we already have seven proposals for changes indicates that the task force is jumping its gun. Its enacting legislation, House Bill 1141, gives the committee this mandate:
The task force established pursuant to this Act shall study and evaluate the voter constitutional amendment, initiative and referendum process, legislation proposed during the Ninety-second Legislative Session of the South Dakota Legislature relating to the voter constitutional amendment, initiative and referendum process, and other proposals as they relate to the voter constitutional amendment, initiative and referendum process in South Dakota [2017 HB 1141, Section 2].
Committee chair Dr. Emily Wanless reads that passage as a mandate to conduct “a thorough review of the policies, procedures and regulations surrounding the uses of initiatives and referendums and where needed, suggest any changes that might be warranted.” We can’t get to “where needed” until we conduct that “thorough review” of the status quo. Task force members appear to have laid the following proposals for changes on Day One, before any “thorough review” of current law and practice could be completed. If we do not fully understand how well the state enforces existing safeguards in ballot measure petitioning and campaign finance, we cannot responsibly gauge how well the state would implement any new proposals.
1. Allow for fifteen working days on LRC Review & Comment for submitted ballot measures.
I’m fine with this measure, under one condition: every additional day LRC gets must come out of the 60 days the Attorney General gets to review initiatives. We should not accept any provision that further delays the ability of ballot question sponsors to hit the streets with their petitions.
2. Number of days for LRC Review & Comment based on number of words in the ballot measure.
No. Equating word count with complexity misses many possibilities. For instance, an initiative to assign all regulatory authority over septic tanks and other rural wastewater systems not currently governed by municipal governments would be relatively straightforward. However, the text of such a measure would have to include several pages of text striking the 62 sections of SDCL Chapter 34A-5.
Conversely, one could offer a one-sentence initiative like last year’s IM23—”Notwithstanding any other provisions of law, an organization, corporate or nonprofit, has the right to charge a fee for any service provided by the organization”—which triggers all sorts of complexity as LRC may need to check all the other provisions of law that would not withstand this terse change.
We make no such provision for wordier bills in the Legislature. Committees, chambers, and the Governor all get the same amount of time to clear each bill, long or short. We should not impose this nitpickery on ballot measures, either.
3. Exemption from fifteen-day requirement for LRC for ballot measures submitted during Legislative Session.
I understand the time crunch this proposal seeks to solve. Session is a bad time for a citizen to drop by the Capitol and ask an LRC staffer to add another task to his or her plate. But welcome to public service. The Legislature does not get to give itself precedence over the general public in accessing public resources. After all, the Legislative Research Council exists to serve all citizen legislators, including the vast majority of us citizens who do not get per diems and cushy desks in the Capitol but who nonetheless constitutionally reserve to ourselves the right to legislate by initiative and referendum. Elected legislators can ask LRC for service at any time; all citizens deserve the same service.
If there is a practical crunch on LRC staff availability to review citizen proposals, we should resolve that crunch in ways that do not further restrict the ability of citizens to exercise their constitutional rights. Instead of further delaying initiatives, I recommend the following practical solutions:
Increase funding for LRC to hire more staff during Session and/or create a special division dedicated to initiatives and service for the general public.
Move the deadline for submitting initiative petitions from November of the year before the election to July 1 of the year of the election. That gives petitioners eight more months to collect signatures, thus easing the time crunch for both LRC and petitioners.
4. LRC to provide, in addition to style and form, guidance for “efficacy” of the ballot measure’s policy objective.
LRC should provide the same service to all citizen legislators, be they elected or be they initiators. If this advice to elected legislators includes guidance on policy “efficacy,” then yes, by all means, provide that advice to initiative sponsors as well.
5. Limit on number of ballot measures that may appear on a ballot.
Bonk. We do not limit the number of bills legislators can propose. The Governor does not limit the number of bills the Legislature can send to his desk. The state does not limit the number of political parties or independent candidates who can access the ballot. If citizens want to vote on zero, five, ten, or a hundred measures, that’s citizens’ business. Limiting the number of measures on the ballot turns initiative and referendum into a race of the richest players to crowd the ballot and box out low-budget grassroots activists.
6. Provide statutory authority for state Board of Elections to determine size of ballot.
The Board of Elections already has statutory authority to determine the “form and color of ballots” [SDCL 12-1-9(2)]. If this proposal recognizes a need to accommodate more measures or more information about each measure, let’s consider it. But if this measure envisions restricting ballot space and thus ballot measures, forget it.
7. Independent Citizen Review panels for ballot measures.
Rob Timm of the Chiesman Center for Democracy told the I&R Task Force about this idea in his testimony Wednesday among his recommendations for giving the public more unbiased information about ballot measures:
Holding numerous facilitated town hall discussions throughout the state to review one or more key ballot initiatives, or maybe just constitutional measures – allowing not only sponsors and opponents to provide arguments but also creating opportunities for the general public to ask questions.
Take this one step further, and implement a process that is used in Oregon, Arizona, Massachusetts, Colorado and California. These states utilize an independent Citizens Initiative Review® (https://healthydemocracy.org/cir/) that engages a randomly selected, demographically balanced “jury” of citizens who take testimony and then deliberate for 2-3 days, drafting a statement highlighting the most fact-based pro and con findings about a measure (usually a constitutional amendment). Which is then placed in the voter guide [Rob Timm, Chiesman Center for Democracy, testimony as prepared for Initiative and Referendum Task Force, 2017.06.22].
Placing ballot measure sponsors and opponents on an equal footing in a formal public process designed to give all voters more information is a splendid idea. But as I cautioned Dana Ferguson, we need to make sure the process is impartial:
Cory Allen Heidelberger, a progressive blogger and referendum and initiative sponsor, said he generally supported the idea of allowing more public input on the proposals, but warned that constraints would be needed to prevent abuse of the public hearings.
We also need to make sure that any citizen review/public hearing process does not further delay the petition process or otherwise restrict the ability of citizens to put measures to a vote. Finally, I hesitate to write into public policy anything with a registered trademark. But overall, engaging more citizens in the political process is good…
…and that’s the principle that should guide the Initiative and Referendum Task Force’s review of existing ballot measure statutes as well as their premature rush to propose new laws. Of the above draft bill requests, #3, and #5 raise hurdles to participation. #1, #4, #7, and my counterproposals under #3, if implemented properly, invite more citizen participation.
Leading off was Karla Hofhenke, representing South Dakota Farmers Union’s 19,000 members, who said simply, “If it’s not broke, don’t fix it.” Hofhenke, who is familiar with the I&R petition process from her work on Farmers Union’s independent redistricting initiative in the last election cycle, expressed opposition to two major “reforms” Republicans have recently proposed for the petition process, requiring more signatures and requiring signatures from more counties. Hofhenke says raising signature requirements would make it harder for regular citizens to sponsor ballot measures and make the process “a rich man’s game” and encourage the use of out-of-state circulators. Geographical restrictions (like Rep. Spencer Gosch’s onerous and fortunately defeated House Bill 1153, which would have required half of a petition’s signatures to come from 33 different counties) would make the process unworkable. “All South Dakotans have equal merit” in supporting ballot measures, said Hofhenke; requiring geographical quotas is simply “an attempt to gut the process” of initiative and referendum.
Senator Jim Bolin (R-16/Canton) expressed his surprise that Farmers Union is not interested in seeing rural people have more ability to be involved in process of signing petitions. He said he represents a primarily rural area and finds it rare to see petitions in Alcester, Beresford, or Elk Point. Why not, asked Senator Bolin, get signatures from a more diverse geographical area? Hofhenke replied simply that Farmers Union supports the process as it is.
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Tom Harmon, who said he had worked on South Dakota initiatives dealing with radiation, invoked the “Republic Not a Democracy” mantra to cast skepticism on ballot measures. He suggested the task force need take no action on initiated laws, since any legislator can draft measures to get around them. For the “very solmen matter” of constitutional amendments, Harmon suggested allowing opponents to respond to filed amendment petitions by circulating their own petitions against placing the amendment on the ballot and allowing opponent signatures to cancel out proponent signatures. Asked by panelist and Board of Elections member Linda Lea Viken if such a process would allow the easy defeat of any amendment filing, Harmon shrugged, “That’s getting into the mechanics of the matter.”
Harmon also said the press loves ballot measures “because there is a lot of advertising that is put in on both sides.”
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Rob Timm of Chiesman Center for Democracy said his organization is founded on the principle that “Democracy does matter.” He said that initiative and referendum arose in South Dakota in the late 19th century because average Americans felt excluded by a “plutocracy… controlled by the wealthy and corporate elite.” Timm argued that the positive effects of direct democracy outweigh the “messy” problems.
Timm didn’t just assert the merits of direct democracy; he brought empirical evidence. Timm cited research showing that direct democracy has positive psychological effects on voters, making them feel they have an impact on policy. Allowing people to be the government helps them develop higher levels of “political efficacy,” their faith and trust in government. Timm also cited research showing that ballot questions increase voter turnout. States with initiative see 3% to 4.5% higher turnout in presidential elections and 7% to 9% higher turnout in midterm elections. Finally, Timm said research shows states with initiative waste fewer government resources and have better GDP growth. Barriers to placing measures on the ballot may thus reduce voter turnout and civic engagement… and maybe South Dakota’s economy!
Rather than restricting the process and risking those harms, Timm stressed the need to push education, host events, and publish information and good voter guides. Timm said research shows voters want accurate information, not less democracy. He said South Dakota voters were “pretty darn smart” when they created initiative and referendum in the 1890s and when they added constitutional amendment to their direct-democracy bailiwick in 1972; they remain smart enough today to use I&R wisely.
Panelist Will Mortenson asked Timm if he found irony in the fact that big money is now coming full circle and using “big money from the coasts” to control a process created to fight big money. Timm said the public sector and media must do their job to provide unbiased information.
Prompted by panelist Rep. Karen Soli (D-15/Sioux Falls), Timm explained a method five states (Arizona, Massachusetts, Colorado, California, and Oregon) have adopted to inform citizens about ballot measures. Those states select demographically balanced but otherwise random juries of citizens to review ballot measures. These juries take public testimony and draft a statement on the pros and cons of each measure for a voters guide.
Panelist Rep. Don Haggar (R-10/Sioux Falls) said by phone that he’s less concerned about where ad money comes from and more about getting information about ballot measures. He asked about reheating something like Haggar’s House Bill 1130, a proposal canned by the Senate last March that would have imposed hearings by the Legislature’s Executive Board on the ballot initiative process. Timm said citizens are leery of a process that comes from the Legislature; however, he feels the premise is exactly right that the public needs more information about ballot measures.
Senator Reynold Nesiba (D-15/Sioux Falls) gently resisted Mortenson’s assertion that 80% of the money for ballot questions is coming from out of state by asking if more outside money is involved in our ballot question campaigns than pours into our U.S. Senate candidates’ coffers. Senator Nesiba then endorsed the citizen jury idea and asked the Legislative Research Council to look into it.
* * *
Sharon Gray of Vermillion testified about her heartburn over the Legislature’s use of emergency clauses to box citizens out of the chance to refer those laws to a public vote. She recommended (as I and her son Doug Kronaizl and ballot measure sponsor Roxanne Weber all have proposed) allowing voters to refer emergency legislation. Gray noted that North Dakota has allowed such referrals for a century with no apparent trouble.
Gray noted that South Dakota voters have never supported giving away their I&R power. She said the Legislature’s repeal of Initiated Measure 22 this year expanded the “chasm” voters perceive between themselves and a Legislature that ignores them or includes them at most in a cursory role. Gray said the changes she suggests would help “close that rift.”
Gray responded to Bolin’s earlier question about geographical requirements for I&R petitioners. She said having separate petitions for each county’s voters would be a “mind-boggling” and “onerous” problem that would make petitioning unworkable.
Senator Bolin replied that he has never actually been in favor of requiring signatures from every county. (He did not mention that last December he said he likes a Colorado bill that requires initiated amendment sponsors to get signatures from 2% of voters in every Senate District). Senator Bolin said Montana requires a geographical distribution of amendment petition signatures. Bolin said he objects to notion that almost all of the signatures on South Dakota I&R petitions come from three or four counties—”that is a weakness of the process.” (If we used the Montana rule, which requires signatures for amendment petitions from at least two fifths of the state’s 100 legislative districts, then in South Dakota, we could still complete a petition by getting signatures from three counties—Minnehaha, Pennington, and Brown, which include seventeen counties, more than two-fifths of our 35 legislative districts.)
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John Dale of Spearfish, sponsor of an initiative to legalize marijuana, said he sees an “attack on South Dakota culture” and urged the panel not to “throw my good idea out with the bathwater.” He said that he’d be happy to receive a bunch of out-of-state money for his initiative, then recited his marijuana agenda.
Getting back on topic, Dale responded cautiously to Bolin’s call for geographical quotas. Dale said he doesn’t want South Dakota’s big population centers controlling life for the whole state, but the rules he has heard so far seem designed not allow participation but create de facto veto power and disproportionate value of rural votes over city votes.
Dale said engaging and educating voters is a better way to beat bad measures than raising barriers to citizen participation. Dale said South Dakota needs a “non-Facebook, non-Internet-ghetto means” of discussing ballot measures and offered his tech skills to help state set up non-Facebook system.
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Jim Ackerman of Pierre said he has circulated I&R petitions since 1984, and maybe earlier. He said he came to Wednesday’s hearing in part because of IM22, which he granted was complicated but represented an “honest” sentiment of the electorate, and the people’s attempt to guide the political process is “always legitimate.” Ackerman said IM22 was not an assault on the Legislature specifically but a culmination of voter frustration at years of attempts at public input being ignored by state government.
Ackerman said he wants signature counts to remain where they are—5% of voters for laws, 10% for constitutional amendments. Ackerman said there may be too much out-of-state influence in I&R campaigns, but he noted that the most vocal complainers of that influence have said nothing about the Koch Brothers’ hefty investment in fighting IM22. Ackerman said he could live with efforts to ban out-of-state money (but remember, Jim: the courts won’t!) if we also capped in-state groups’ spending at $100K per side on each ballot question.
Apparently piqued by any impugning of the Legislature, Senator Bolin queried Ackerman about what he meant by his statement about the Legislature ignoring ideas. Ackerman said he meant state government in general. Bolin replied that he doesn’t ignore people. He listens to people who come to issues, but that doesn’t mean he’ll agree with them. He said it’s not accurate to say the Legislature ignores citizens. he then explained his interpretation of his personal Legislative power:
One of the reasons I ran for the Legislature is I didn’t want to have to call anybody up and ask them to please support my idea any longer…. Ultimately by running and winning, I will assume the responsibility of making those decisions that hopefully represent my district in the best possible way [Senator Jim Bolin, statement, Initiative and Referendum Task Force, 2017.06.21, timestamp 01:02:03].
* * *
Jay Davis, attorney from Rapid City, offered a list of the 55 initiatives and referenda on which South Dakotans have voted since 2000. He said only two of those measures—the 2006 JAIL for Judges amendment from California interlopers and the 2016 Amendment U fake payday loan rate cap from out-of-state payday lenders—were “truly malicious” measures that shouldn’t have made the ballot. South Dakotans voted both measures down by unusually large margins. Davis distinguished those malicious measures from other measures like IM22, which, regardless of where their big donors came from, arose from legitimate grassroots concerns and warranted South Dakota voters’ attention.
“The voters know what they are doing,” said Davis, as demonstrated by their ability to distinguish the two competing payday loan measures on the 2016 ballot and by their consistent votes on measures like abortion, medical marijuana, and the five-cent-per-mile reimbursement for legislators that have appeared on our ballots in different years.
Davis said there is not a crisis justifying major changes to I&R. He says minor tinkering is o.k., like more actively publishing campaign finance information and producing a better voter guide.
Davis rebuffed Bolin’s geographical quota. Davis said seeking signatures from residents of as many counties as possible is smart politics for ballot question sponsors: counting on Sioux Falls and Rapid City alone for support at the polls is a losing strategy. But petitioners already get many signatures from residents of many counties visiting Sioux Falls and Rapid City. Demanding an arbitrary percentage of signatures from an arbitrary number of counties introduces too many technicalities into the process. Such quotas would also severely referendum petitioners, who have only 90 days to collect their signatures.
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Next I offered my comments, which I have summarized in a separate post. Chair Wanless then called a potty break (no, really, after we reconvened, she told the next speaker he bladder thanked him for waiting).
* * *
Curt Pochardt of Rapid City said South Dakota was the first to implement initiative and referendum; he hopes we’re not the first to go back on it.
Pochardt said the changes adopted this Session need a chance to work for at least one election cycle before we tinker any further. He said he respects Senator Bolin’s effort to protect the state constitution but he wishes the Legislature felt that way about all provisions in the constitution, like our commitment to education. He called on the Legislature to live up the state motto, “Under God the People Rule” and not place itself above the people.
Pochardt agreed with previous speakers that putting measures on the ballot is hard. He said he and fellow circulators work hard to explain to people what they are signing and to uphold their responsibilities faithfully because we want valid signatures. Pochardt asked the panel, “Don’t make it any harder.”
Pochardt said he also works at Rapid City polling places, and he doesn’t see much of the “voter fatigue” that the panel has discussed. Last year at the polls, he saw some voters take longer than statutory ten minutes allowed. Many brought in the Secretary of State’s voting guide, and many had clearly studied. The voters “took their job seriously.”
The process is not broken, said Pochardt. He said it was “reckless on the part of the Legislature to so quickly disregard the decision made by the voters” on IM22. He asked that in the future the Legislature “try to be more respectful of the people that voted by a majority to enact… IM22”
Senator Ernie Otten (R/6-Tea) roused himself from silence to challenge Pochardt’s use of the word “reckless” to describe his Legislature. Pochardt said his use of that word itself may have been reckless [no, Curt! Stick by your well-chosen vocabulary! reckless—without reck, i.e., without care, concern, or regard… in this case for the voters], but repealing IM22 before the courts could fully process the legal challenge against it was not a good decision. Pochardt said voters passed IM22 in response to the corruption and death they witnessed in the EB-5 and GEAR UP scandals, but “the Legislature decided to substitute its judgment for that of the people.”
Senator Bolin asked Pochardt if he would be opposed to what Bolin called the “cosmetic” change of changing LRC review of proposed initiatives and referenda from 15 days to 15 working days? Pochardt recognized that change as “de minimis” and “probably… necessary.” [I can live with it, too, but only if every extra day LRC gets is taken off the number of days the Attorney General gets.]
Discussion of petition challenges and the new 95%-confidence sampling procedure induced Senator Nesiba, who teachers economics at Augustana, to note researchers “run the regression 25 times.” He asked Secretary of State Shantel Krebs, a non-voting member of the task force—how many times her office will run random samples of each petition. Secretary Krebs said once.
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Mark Lee, speaking for the Sioux Falls Chamber of Commerce, said his group does not subscribe to “if it ain’t broke, don’t fix it.” Sometimes we need “preventive maintenance.” The Chamber says stable laws and constitution are important.
The Sioux Falls Chamber does not advocate elimination of direct access to the ballot and has less concern about initiated laws. “I do not consider it easy to get something on the ballot,” but Lee said it is relatively easier in South Dakota than in other states, some of which don’t even allow I&R.
Lee expressed sympathy for Senator Bolin’s geographical quotas. Minnehaha and Pennington counties can drive the political agenda, said Lee, but he’s not sure that’s good public policy.
Lee said that many conversations with Bolin have led him to agree that the requirements for amending the Constitution need some review. What if it took a 50%+1 vote to amend the federal constitution, Lee asked. Changing our constitution is supposed to be difficult; toward that end, said Lee, we need a higher vote total to pass constitutional amendments similar to Bolin’s 2017 SJR 2.
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Doug Kronaizl of Vermillion, activist for Represent South Dakota, and supporter of an upcoming initiated amendment to write much of IM22 into the constitution, said initiative and referendum are citizens’ recourse when the Legislature doesn’t do what we want. He said that increasing signature requirements, reducing petition circulation time, imposing geographic quotas, and lessening public information all run counter to the process.
Kronaizl said geographical quotas are one more logistical hurdle for grassroots organizations. For example, the previously mentioned HB 1153 would have required putting the name of the county of all signers at top of each petition sheet. Kronaizl said that county labeling might make it easier for the Secretary of State to check petitions, but circulators would have to have 66 sheets available for any one visitor, which creates hassle and cost, especially for volunteers printing their own sheets.
Kronaizl said no ballot question committee is opposed to folks from rural towns getting involved. In fact, he encourages interested rural folks to work their own towns rather than inviting petition sponsors to come circulate, since, Kronaizl has found, out-of-towners are often met with an air of “distance.”
Kronaizl noted that a 2006 Florida measure that raised the vote threshold for constitutional amendments to 60% itself received only 57% of the vote. Kronaizl suggested that any such attempt to raise that bar in South Dakota should have to meet its own standard.
Kronaizl also opposes the Minnesota rule that counts non-votes on constitutional amendments as No votes. He says we have no business assuming the intent of voters who don’t show up.
Senator Bolin noted that in 1978, 53% of South Dakota voters said the Legislature must get a 2/3 vote to raise taxes. He asked Kronaizl if that was an illegitimate vote. Kronaizl evaded the question, saying we can learn from the past.
Mortenson grilled his “old friend… at least by our standards” (the old hands in the room chuckled at 20-something Mortenson’s use of the word “old) about why Represent South Dakota presented four drafts of its amendment to LRC and the Attorney General. Mortenson said Represent South Dakota was using state staff time to do work it should have done on its own, before submission. Kronaizl replied the differences in the drafts were relatively minor and did not thus require four times the work. Mortenson maintained that submitting four drafts abuses the process, that figuring out such details should be incumbent on initiators, and the task force should look at ways to protect LRC and AG staff.
Senator Nesiba challenged Mortenson on this point, noting that months ago, legislators angling to repeal IM22 were complaining in the Capitol about initiators not being careful enough. Do legislators now want to complain about an initiator being careful by submitting multiple drafts for review? Senator Nesiba suggested that perhaps the Legislature should make the LRC more available to public.
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Roxanne Weber of Pierre said Senator Bolin will be thrilled about her one-page petition to amend the constitution. (“How do you know?” Senator Bolin interrrupted.) Saying, “We are the government,” Weber said she got great service from the LRC. She said her group submitted three drafts to LRC because her group really didn’t know whether various provisions and wording would be acceptable or “way off.” She said submitting multiple drafts allowed her group to get feedback sooner on all three and decide which draft to proceed with.
Weber challenged Bolin’s geographical quota, saying that trying to get to Bolin’s district to collect signatures on a shoestring volunteer budget would be a difficult feat. For participation, said Weber, it’s more important that everyone gets to vote.
Weber asserted that people she’s talked to throughout the state are less upset with the repeal of IM22 than they are with the Legislature’s use of the emergency clause to shut of the possibility of referring that repeal to a public vote.
Panelist Viken question Weber about the use of the terms “qualified voters” and “qualified electors” side by side in Section 3 of Weber’s amendment. “I think you have a conflict there,” said Viken. Weber said the two terms are essentially the same but result from using existing language in the constitution.
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Karen Hall, member of the Pennington County Democrats from Rapid City who said she used to work as an engineer at a Koch Brothers refinery in Minnesota, opposes limiting the number of measures on the ballot. She said initiative and referendum are “a good check on the Legislature by the voters,” allowing us to undo bad things the Legislature does or do things the Legislature won’t. Hall cited payday loans as a good example: after the Legislature rejected efforts to regulate predatory lending in multiple sessions, the people finally took action with teh 36% rate cap.
Hall said South Dakota voters take their constitutional responsibility to vote very seriously. In response to a complaint about voter intimidation at a north Rapid City polling station last year, Hall went to the polls as an observer. She was really impressed with voters, working class folks in “jeans and workboots,” bringing their kids along, taking the time to do the work of democracy. Hall said she saw three kinds of voters:
Some voters had cheat sheets. They’d done their homework ahead of time. They worked through every line, and Hall saw them turn the ballots over, indicating they took time to address the ballot issues along with the candidates.
Some voters sat and read every word. Some who were at the polls at the legal 7 p.m. closing time stayed until 7:25 to finish. Hall said the Legislature should consider lengthening that statutory limit of
Only a very small number of voters—”less than a handful” appeared to vote only for candidates and skip the ballot measures. Hall observed those few voters who did not turn their ballots over and work on the back.
People may not love to have a long ballot, said Hall, but the voters of South Dakota will do the work. She implored the task force, don’t take away voter rights.
Senator Bolin asked Hall if it bothered her when she lived in Minnesota that she didn’t have input through initiative and referendum. Hall said back then she was not as involved in politics, since working for the Kochs meany working 80 hours a week. Bolin asked Hall if she had moved to Rapid City because of initiative and referendum. Hall said she returned to Rapid City because she is a proud graduate of the School of Mines.
* * * John Schmidt of Woonsocket spoke, as he does to everyone in every venue, about Arctic methane release. At the end of his testimony, which Chair Wanless hastened, Schmidt expressed surprise that the members of the Initiative and Referendum Task Force had no questions about Arctic methane release.
* * *
David Owen, speaking for the South Dakota Chamber of Commerce and Industry, said his people are “more skeptical” about I&R and find it “annoying.”
“We do have respect for the process” and South Dakota’s historical role in I&R, said Owen. The Chamber firmly believes that South Dakota voters take this seriously, and “We would dink with this at our peril.” Owen acknowledged that we don’t have a lot of voter fall-off and even see some higher votes for I&R than some constitutional offices.
However, the Chamber is skeptical of the notion that tinkering with I&R is somehow a violation of the sacred will of the voters. Signatures on a petition don’t always represent voters’ will; half of those signers, said Owen, “just wanted to get their mail” or were willing to vote on something they disagree with.
The Chamber’s irritation is that they know how elections run: “You’re not seeking to inform the public; you’re seeking to incite the people to vote your way.” He said we don’t let any crowd take away our rights by popular vote. Owen invoked lynching as an example, saying that’s 23 votes Yes on the ground, one vote No in the tree.
For the apparent antipathy toward I&R, Owen put only two relatively benign proposals on the record. He said the Attorney General should have a public comment period on ballot measures (problematic in my mind only if it creates further delay in sponsors’ ability to hit the streets with petitions). Owen also said we “dearly need” a PAC-like structure that would allow a group to address multiple ballot questions and maintain continuity over time to tackle ballot measures from election to election. Such long-term ballot question committees used to be possible; Owen noted that we only recently outlawed ongoing ballot question committees (see 2016 HB 1036).
Responding to a question from fellow lobbyist Mortenson, Owen personally warned the Legislature that any changes to I&R must be “defendable as the changes themselves. Where we will get in trouble is where we make changes that are really designed to inhibit this process without just admitting we want to make it harder.”
Owen said the constitution deserves a higher threshold for amendments. He said he is “personally skeptical that 60% is too high.”
* * *
Shawn Lyons, speaking for the 4,000 members of the South Dakota Retailers Association, noted that his group was founded around the same time as initiative and referendum, in 1897, to advocate for small merchants. Lyons said the Retailers aren’t “special interests”; they are the businesses that collect the sales tax that funds this very process.
Lyons seconded Lee’s call for “preventative maintenance.” The Retailers “do not oppose the initiative and referendum process,” but they note that I&R lack the opportunity for review and amendment that normal legislation gets as it passes through committees and the House and Senate. Lyons said voters are frustrated with that lack of input and amendment in ballot questions and said “legislative review” of initiatives “should not be out of the question. The Retailers support a public comment period on initiatives. Lyons agreed that democracy is messy but said that when we amend law and even more importantly our constitution, we should be looking at the far-reaching impacts of those changes.
Lyons expressed support for geographical quotas, saying small communities and businesses should also “have a voice.” He said he’d like to see more petition gatherers in his neck of the woods in “Metro Reva.”
* * *
Rebecca Terk, representing Dakota Rural Action, spoke last. She said DRA, as an organization representing primarily rural South Dakotans, does not think that not having petitioners come to town denies rural folks a voice in I&R. Everyone has the opportunity to weigh in at the ballot box if an initiative or referendum receives enough support to get there.
Terk sees no need to limit the number of measures on the ballot. Then on our ballot last year were not historically unusual, and multiple measures increase voter engagement and turnout. Terk said initiative and referendum are the people’s process. The Legislature should “tread very carefully” in changing the rules for I&R. “The greatest task of this committee,” said Terk, “is to preserve… and in some ways to regain the public trust when it comes to the protection of initiative and referendum.”
* * *
Dr. Emily Wanless gets kudos so far for fairly chairing yesterday’s meeting. Public testimony was scheduled to run from 9:10 to 11:00, with an hour of committee discussion to follow; Dr. Wanless allowed public testimony to run the full three hours and was generally liberal with time limits as long as speakers were on topic. Her few statements from the chair showed no agenda like Bolin’s and no brittle institutional defensiveness like Bolin’s and Otten’s. Dr. Wanless appeared interested only adding a fact or two and listening to the public.
I say this same thing every time Dr. David Newquist puts up a new blog post: he doesn’t write much, but when he does, his words are powerful. This weekend, Dr. Newquist explains how Donald Trump’s lies are destroying our democracy as surely as our government’s lies demoralized the American Indians.
As usual, it is hard to excerpt Newquist. Every paragraph is powerful, but every paragraph gains even more power in concert with the whole. Here’s just one passage, which should inspire every reader to read everything Newquist says about the lies of the “village idiot” in the White House:
The most serious damage lying inflicts is on the language. When words are used to deceive, they become untrustworthy. An environment of lies makes the language useless in conducting any kind of human transactions. And when people cannot trust words, they cannot trust anything or anybody. The misuse and consequent mistrust of language spreads into documents and the laws that govern us. People realize that laws are construed to oppress some people and exempt others from any kind of responsibility [David Newquist, “Pathological Lying Destroys Human Possibilities,” Northern Valley Beacon, 2017.06.10].
Read and share Newquist’s full critique. Forward these words to our elected officials. And fight the cynical linguistic nihilism that Trump is using to destroy our democratic institutions as he raids the national cookie jar.
On the first day, Tuesday, June 20, the panel of legislators, election officials, and other appointees (but no independent advocates of the initiative and referendum process) will meet to listen to their chosen experts and each other first. Only on the second day, Wednesday, June 21, at 9:10 a.m., will they turn to the public and say, “Gee, citizens, who actually use initiative and referendum to check the power of us legislators, what changes do you think we legislators should make to the process?”
I’ll tell you what changes the Legislature should make: none. Keep your hands off the people’s legislative process. You’ve done enough damage, and some of you (Rep. Don Haggar, Sen. Jim Bolin, Sen. Ernie Otten, all on this task force) want to do more. Initiative and referendum, Father Robert Haire‘s gift to democracy, need more protection from your Legislative meddling. If you can bear it in your grasping arrogance, leave initiative and referendum alone, and let the people come up with their own solutions…
To review, the VIP Amendment would strengthen voter power through initiative and referendum process by adding these provisions to our state constitution:
Allow citizens to refer any law, except for the general appropriations bill.
Allow citizens to refer laws enacted with an emergency clause, but leave those laws in effect until voters get to vote on them.
Require a two-thirds vote of both chambers of the Legislature to amend or repeal any voter-approved law for seven years after enactment.
Clarify that if conflicting ballot measures pass, the measure with the higher vote total takes precedence.
Set the enactment date for approved ballot questions at 30 days after the election.
Prohibit the Legislature from changing the number of voters who must sign petitions to get measures on the ballot, the time available for circulating petitions, or the vote totals required to pass ballot measures.
Prohibit the Legislature from requiring more than 10% of qualified electors to sign petitions to place constitutional amendments on the ballot.
So the assault on fair play isn’t a new idea. Nevertheless, it seems clear to most observers that something new is going on. Maybe it’s a difference in kind, or maybe there really is more openness about bending the rules to suit partisan purposes. Legislators have often been known, for example, to challenge ballot measures in court, or redirect or withhold funds that voters have approved. That still happens. But South Dakota took this tactic one step further this year. The state legislature kicked off its session by overturning a law (an ethics package, no less) that voters had just enacted at the ballot box in November. “Now legislators are picking and choosing what part of the voters’ will they’re going to accept,” says Justine Sarver, executive director of the Ballot Initiative Strategy Center, “and that’s just not how democracy works” [Alan Greenblatt, “Democratic Norms Are Under Attack, and Not Just by Trump,” Governing, 2017.05.18].
Hmm… can “Great Faces, Great Places” and “Low Taxes!” work alongside “Low Respect for Democracy”?
“It’s a real stick in the eye of the people of South Dakota,” said Liz Kennedy, director of the democracy and government reform program at the liberal Center for American Progress. “It’s one thing when it’s a policy change like minimum wage, but this is the voters saying ‘our government is not working for us right now,’ and the government is saying ‘we reject the rules that you have imposed on us.'”
…”It’s pretty blatant, this attempt to shut down citizens’ voices and their role in direct democracy,” said Kellie Dupree, communications director for the Ballot Initiative Strategy Center, a progressive group that sponsors ballot measures. “You don’t get to decide which election results you’re going to accept. I would go so far as to say it’s lawlessness” [Alan Greenblatt, “Don’t Like the Ballot Measure Voters Approved? Just Ignore It, Some Lawmakers Say,” Governing, 2017.01.31].
It’s not just South Dakota getting bad press for legislative overreach. Apparently legislators in Maine and Arizona are also trying to nullify the will of their voters. That trend just isn’t cool:
…Catie Kelley, an attorney with the Campaign Legal Center, called the trend of overturning the will of the voters “disturbing” and suggested that lawmakers must think they’re safe for re-election and unaccountable to voters.
“The whole idea of having ballot initiatives is that there’s some vehicle for voters to move a policy if lawmakers are unwilling to move it themselves,” said Kelley. “If lawmakers are going to repeal it, or undermine it through the administrative process, it’s really a lost tool for voters” [Greenblatt, 2017.01.31].
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.