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.
As a constitutional amendment, Bolin’s Draft #110 would overcome the existing Article 3 Section 1 provision that says we cannot “deprive the Legislature or any member thereof of the right to propose any measure.” But if three legislators can think up three useful changes to our constitution, there is no good reason to arbitrarily tell one of them to sit down and shut up.
Likewise for citizens: if three separate citizens or groups of citizens can identify important changes that we should make to our constitution to deal with new economic or political conditions, how do we decide which two ideas should go to a public vote now and which one should have to wait for two more years?
Even if there is such a thing as too many constitutional amendments at once, citizen initiative does not appear to be the source of that “problem.” Since we voted to allow amendment by initiative in 1972, citizens have placed more than two amendments on the ballot only once, in 2016. From 1974 to 2016, the Legislature has put more than four times as many amendments to a vote than citizens have:
Over four decades, citizens have shown far greater restraint in proposing amendments than the Legislature. Even in our big 2016, we still only approved one of our four amendments.
Historically, the greatest number of amendments on any ballot have come from the Legislature: nine in 1970, twelve in 1918, 224 since 1890.
Ballot measure caps at least insult if not directly violate the First Amendment. The Legislature has no compelling interest in restricting the number of constitutional topics on which voters may have meaningful discussions during an election year. The most amendments we’ve had to deal with on one ballot in the initiated-amendment era is eight, in 1998. We don’t need Senator Bolin or any other elitist official telling us that we’re too dumb to think about eight things at once. If citizens and legislators want to discuss eight or more amendments on the ballot, I say, bring them on! We the people are up to the task of reading, evaluating, and voting on our constitution.
Now on the interim task force on initiative and referendum, Senator Bolin has offered two simpler proposals, leaving the threshold for placing measures on the ballot alone but proposing either a 55% or 60% threshold for approving amendments in the general election.
During the debate on Bolin’s SJR 2, I noted that his 60% requirement would have reduced the number of amendments passed by voters since 2000 from fourteen to five.
Revising the LRC table, I find that since 1970, voters have approved 45 of 97 proposed constitutional amendments. Raise the threshold to 55%, and only 31 measures would have passed. Raise it to 60%, and only 14 would have passed.
For the parliamentarians among us, if we considered the traditional parliamentary rule-changing threshold of two-thirds, only eight amendments out of the 97 over the last 46 years would have passed.
Senator Bolin’s fundamental motivation here is sound: amending a constitution should be harder than changing laws. But as I noted in our discussion of SJR 2 last winter, we already make amending the constitution harder than changing our laws. Laws can pass by Legislative vote or by citizen initiative. The Legislature cannot pass amendments by itself; any amendments the Legislature seeks must also win the approval of the voters. Citizens can pass amendments without the Legislature, but placing an initiated amendment on the ballot requires twice as many petition signatures as an initiated law.
I was going to add that citizens are probably more wary of changing their constitution than they are of changing their laws. However, since 1970, we have passed 46% of the amendments that have come our way and only 37% of the laws placed on the ballot by initiative or referendum. Since 1890, that difference is even greater: we’ve passed 49% of proposed amendments but only 29% of proposed laws.
We’re also more likely to pass amendments proposed by the Legislature than those initiated by our fellow citizens. Of 222 amendments placed on the ballot by the Legislature, we’ve approved 112—that’s one more than 50%! Of the 16 we have initiated, we have approved 6—that’s 38%, about the same as the rate at which we’ve approved initiated laws (10 out of 26).
Those numbers suggest that we the people hold our state constitution less sacrosanct than our statutes. Or maybe South Dakotans are just pragmatists who won’t let abstractions from political philosophers like Senator Bolin and me stand in the way of fixing problems.
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.”
* * *
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 publci 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.)
* * *
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.
* * *
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.
* * *
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).
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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.
* * *
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.
* * *
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.
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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.”
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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.”
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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.
However, no student is required to take any assessment administered pursuant to this section if the student’s parent or guardian, or, if the student is emancipated, the student submits a request for an exemption from the assessments on forms provided by the Department of Education to the superintendent of the school district within one hundred eighty days of the start of any school fiscal year. The request for an exemption shall be dated and signed by the parent or guardian, or the emancipated student, and the request shall be notarized. No school district or school district employee may take any punitive action against a student, including preventing the student from participating in any extracurricular activity, due to the student’s exemption from the testing requirements established in this section [2017 SB 85].
That 180-day deadline is a bit tricky: under SB 85, I wouldn’t be able to get my daughter out of this year’s standardized tests, but I have roughly from January 1 to July 1 of this year to submit my request (ahem—demand!) that she not be subjected to next year’s round of answering a computer’s mostly irrelevant questions. I don’t see a problem with walking in the month of the standardized test and saying, “Nope, not my child. Just give her some math practice and time to read To Kill a Mockingbird.”
Right now, South Dakota voters retain the exclusive authority to amend the state constitution. Whether amendments are proposed by citizen petition or Legislative vote, all amendments appear on the statewide ballot, and all amendments must receive a simple majority vote to become part of the state constitution.
Republican Senator Jim Bolin, a opponent of direct democracy, proposes to raise the bar for passing an amendment from 50%+1 to 60% of the votes cast. Senator Bolin’s SJR 2 would also require the Legislature to muster a two-thirds vote to put amendments to a public vote. SJR 2 does not affect the initiative process citizens may use to put amendments on the ballot, but Bolin has signed on to SB 67 to immediately change the method of calculating the signatures necessary to put amendments on the ballot and effectively raise the signature count by 88%.
SJR 2 reduces the power of the people. On principle, as with so many other bills that Republicans are promoting this year to undermine past initiatives and raise more hurdles to initiating new measures, reducing the power of the people is wrong.
However, in SJR 2, we are talking about the state constitution. Existing law recognizes the idea that amending the constitution should be harder than changing law. South Dakota doesn’t allow the Legislature to change the state constitution, just as Congress and the President cannot change the U.S. Constitution. South Dakota requires twice as many petition signatures to put constitutional amendments to a vote as it takes to put laws to a vote.
We already make passing amendments harder than passing laws. The question we must resolve on SJR 2 is whether that difference in difficulty needs to be greater.
Vote Thresholds for Amending Other State Constitutions
Across the U.S., thirteen states (including us!) allow the Legislature to submit amendments to a popular vote by simple majority votes of both chambers. Eight states require 60%; seventeen states require 2/3. Eleven states require votes of various sizes in two consecutive legislative sessions.
Delaware requires one 2/3 vote from each chamber, but that’s it—no public vote necessary to amend the Delaware Constitution (to which I say no flippin’ way!).
Once amendments make the ballot, only ten states require anything greater than a simple majority vote of the electorate to amend their state constitutions. Utah, Tennessee, Nebraska, Illinois, and Hawaii condition that simple majority with a vote threshold based on total voter turnout. Colorado requires a simple majority to strike constitutional language but a 55% total to amend or add constitutional language. Minnesota requires 60% to approve amendments from constitutional conventions. Nevada requires a citizen-initiated amendment to win simple majorities at two consecutive elections. New Hampshire requires a 2/3 vote.
So for what it’s worth, compared to other states, South Dakota makes it easier than “normal” for Legislatures to put amendments on the ballot, but we share the simple-majority requirement for passage at the general election with forty states. SJR 2 would make South Dakota’s constitution one of the hardest to amend, comparable in difficulty only to New Hampshire, which flips the SJR 2 numbers and requires a 60% vote of each Legislative chamber and a 2/3 vote of the electorate.
Well, they won’t say that in so many words. But under the guise of fighting big money and out-of-state influences, they propose a variety of measures to make it harder to put measures to a statewide vote, such as…
Raising the number of votes necessary for the Legislature to place a constitutional amendment on the ballot;
Requiring signatures from 2% of voters in every Senate district;
Increasing the signature threshold from 5% of votes cast for Governor in the last election to 5% of voters registered.
Raising the signature requirements for initiative and referendum petitions will do nothing to stop outside money from hijacking our ballot. Bolin and Haggar’s proposed limitations will actually give big money more dominance over our ballot:
…Michael Card, a political science professor and associate provost at the University of South Dakota, said requiring more signatures or signatures from a geographically broader group of South Dakotans wouldn’t solve the problem.
The answer to Ferguson’s headline question is NO. Bolin’s and Haggar’s proposals will only shut grassroots South Dakotans further out of the political process… which, of course, is the long-standing intent of the Republican Party, which hates voters’ willingness to overrule SDGOP priorities.
…they would ban South Dakota legislators (including Don’s own daughter Jenna) from traveling to ALEC meetings to be indoctrinated by corporate raiders and peddle their Putin-oligarch deregulatory model legislation in Pierre;
If Reps. Haggar and Bolin are really concerned about out-of-state big money in our politics, they should not only embrace but augment the requirements of Initiated Measure 22, the Anti-Corruption Act that their party fought with Koch Brothers’ money but which the people of South Dakota saw fit to enact. The Anti-Corruption Act doesn’t lay much new law on ballot question committees—no new caps on contributions to ballot question committees as are imposed on statewide, legislative, and county candidates. It does, however, require (see Section 23) that ballot question committees (along with candidate committees, party committees, and PACs) file “timely contribution disclosure statements” within five days of receiving $500 or more from any one donor. Each TCDS must include an individual donor’s name, residence address, occupation, and name of employer or, in the case of party or PAC donors, name and registered street address. That won’t stop money from coming in from out of state (and constitutionally, can you, Don? Jim?), but it will allow us to track that money as it comes in from the high rollers more immediately, in time for all the ad-donorem attacks that Don and Jim and the rest of us may want to use when arguing the merits of the ballot measures just isn’t enough.
Assuming, of course, that Don and Jim the rest of their caucus really care about protecting the integrity of South Dakota’s initiative and referendum and aren’t just getting ready to attack to the people’s check on the Legislature’s arrogant one-party rule.
“I feel like the process has been hijacked by people not from South Dakota,” Republican Rep. Don Haggar said. “I think in light of what’s happened here this past campaign season, in particular, it’s a reason to look at it.”
Haggar said the Legislature will likely examine the issue during the next legislative session, which begins in January. He would support “raising the bar” for South Dakota citizens to propose a change to state law, but said it’s unclear what a bill might look like.
One idea would be to require that signatures are gathered from a wider geographic area of the state, he said.
…Incoming GOP Sen. Jim Bolin, who currently serves in the state House, wants to see more stringent requirements specifically for constitutional amendments. “We have to reform our system — not abolish it — but reform it,” he said [James Nord, “Ease of Ballot-Initiative Placement a Source of Concern for SD Voters,” AP via Pierre Capital Journal, 2016.11.14].
Ah, geographic distribution—Rep. Bolin floated that idea in the 2016 Legislature. That plan and other higher bars to placing measures on the ballot will do nothing to prevent out-of-state money from dominating our initiative and referendum process. Tougher petition requirements will only increase the dominance of big money, which can hire lawyers and professional circulators to overcome any strictures, while crowding out the grassroots South Dakotans who already struggle enough to meet the signature requirements and other rules on ballot measures. (The headline of Nord’s article is misleading: there is no “ease” in placing measures on the ballot, and it’s Republican legislators, not “SD Voters”, who are mislaying these concerns.)
Rep. Haggar’s fears of big-money hijackers are not borne out by the results of this year’s election. Of the five citizen-initiated measures on which sponsors succeeded, only one, Amendment R, the crime victims bill of rights, was a clear hijacking of the initiative process by a California billionaire with no regard for existing statutes… and that hijacking was facilitated by one of the SDGOP’s own consultants. If the Republicans wanted to shut down that big money, they could have.
The other four successful citizen measures all had South Dakota roots. Both referred laws went on the ballot because Aberdeen blogger and Democratic activist Cory Allen Heidelberger (yes, little old me!) took out petitions, got the South Dakota Democratic Party to help, and simply spoke the truth about two bad laws the 2015 Legislature passed. I had almost no budget, and I still got more than 70% of South Dakotans to agree with me and vote down those two bills (which Haggar and Bolin supported—ah! so that’s why they want to squeeze us out of ballot measures!).
Initiated Measure 21, the 36% rate cap on payday loans, came from South Dakota activists Steve Hildebrand, Steve Hickey, and Reynold Nesiba. They had a piddly budget and faced multi-million-dollar opposition from out-of-state payday lenders on 21, but they still won and beat back the payday lenders’ attempt to hijack the constitution with their fake Amendment U.
Initiated Measure 22, the Anti-Corruption Act, had lots of out-of-state money for and against it. But it came from Rick Weiland, a South Dakota guy through and through, and South Dakotans decided by a narrow margin to try out a state ethics commission, lobbying restrictions, and tighter campaign finance limits, and voluntary campaign financing. That’s hardly a hijacking by outsiders.
There’s the point our elitist Republican legislators keep missing. Big money interests don’t get to simply buy an election. Ultimately, South Dakotans decide whether ballot measures become law or not. This year and in past year’s South Dakotans have done a pretty good job of separating good locally grown wheat from outside big-money chaff. I don’t see the need to make it harder to put measures on the ballot, because I trust South Dakotans to read ballot measures and make good decisions. Republicans do not trust South Dakotans, especially when so many of our decisions on ballot measures break against what those Republican power-grabbers want.
Don, Jim, leave initiative and referendum alone. Your party already has far more than its fair share of power; why not let the people have this one, already difficult check on your Legislative overreach, and trust the people to decide for themselves what laws they want to write?
I’ve spoken several times (a few thousand times, if you count my door-to-door and sidewalk pitches while circulating the referral petition last year!) on Referred Law 19. This debate with Rep. Bolin, even with the trash talk he slipped into his arguments on camera and after the show, was easily the most challenging and enjoyable, simply because there was an articulate and crafty opponent right there beside me.
This great television almost didn’t happen. Like other media outlets, KELO TV struggled to find one out of the dozens of Republican legislators who voted for RL 19 when it was mere Senate Bill 69 in the 2015 Session. Rep. Bolin at first didn’t want to do this show, either. He changed his mind when they told him I would be on the show. As you can see, Rep. Bolin clearly enjoyed the chance to debate me.
Our main policy argument is over the intent and practical impact of the bill. Rep. Bolin says RL 19 addresses the problem of illegal petition activity by giving citizens more time to review and challenge petitions. I contend that the only measure of RL 19 does that, the earlier petition deadline, is not worth the cost to candidates, who lose the warmer, sunnier, longer days of March to collect signatures to get on the ballot. The other main provisions of RL 19—increasing signature requirements for Republicans and Democrats while taking away party members’ right to sign petitions for independents—do nothing to prevent or catch bogus signatures and only make it harder to get on the ballot.
Rep. Bolin tells independent candidates to “man up” (I invite your feminist critique—I think I also used the phrase “cowboy up”) and get signatures from “their own people.” I respond that independents’ “own people” are all voters, regardless of party label.
Rep. Bolin’s arguments only get worse as the debate goes on. He pivots from a question about constituent reponses to RL 19 (note that while we agree that not a lot of people are talking about or know about RL 19, I note that when I explain the bill, I get universally negative responses; I suspect that absence of public support is why Rep. Bolin pivots here) to his prepared point about RL 19 being “bipartisan.” Rep. Bolin here tries to abandon his majority leader Rep. Brian Gosch’s baldly partisan pitch for RL 19—”Republicans drafted this bill, Republican Legislators passed it, and a Republican Governor signed it.” But Rep. Bolin exaggerates: there was exactly one Democrat, Senator Jim Bradford from Pine Ridge, who voted changed from a Nay in the first Senate vote on RL 19 to an Aye on the voting on the conference committee bill over a month later. Every other Democrat in Pierre resisted this bill.
I’ll simply say that Senator Bradford’s wrong vote doesn’t make this bill truly bipartisan or useful.
I know Mr. Heidelberger he claims all of these legal things and stuff like that…. For his claim that this is obviously unconstitutional, from my political science classes, Mr. Heidelberger, one thing I learned is that any law that is passed by a legislature and signed by a governor is inherently considered constitutional until challenged. So this bill, this law that is now before the public, if the public approves it, it will be considered constitutional unless a federal court would strike it down [Rep. Jim Bolin, on Inside KELOLand, 2016.10.30].
Rep. Bolin here argues a technicality to avoid talking about the real principles involved. His dodge here is like saying the Legislature could pass and the Governor could sign a law putting journalists in jail for criticizing elected officials. Everybody but Donald Trump recognizes that such a law would be unconstitutional under the First Amendment. The fact that we have to wait for a court to enjoin such tyranny does not change the fact that such a law is unconstitutional tyranny. I won’t call RL 19 tyranny, but I will note that neither Rep. Bolin nor any other Republican has explained why taking away party members’ right to sign petitions for independent candidates does not raise an unconstitutional barrier to independent ballot access.
Thus beaten down, Rep. Bolin ultimately has to appeal to authority. He asks viewers to “confirm the decision of the South Dakota Legislature and Governor Daugaard who signed this law.” Again, he’s not talking the merits of the law; he’s just saying that legislators and the Governor know what they’re doing, so don’t question them—just do what they say.
The Legislature has veto power because sometimes the Governor screws up. We the people have referendum power because sometimes the Governor and the Legislature screw up. Rep. Bolin’s inability to stick to the merits of the law itself and his resort to stretched definitions of “bipartisan” and “constitutional” show that Referred Law 19 is one of those screw-ups.