The Legislature’s interm task force on initiative and referendum convenes again tomorrow (Wednesday) at 10 a.m. Central in Pierre. At the same time, Donald Trump’s fake election fraud commission holds its first meeting in Washington D.C. Both meetings will be streamed online (SD I&R task force on SDPB; Trump/Kobach commission via White House Live). Election nerds like me will need two sets of headphones….
The I&R task force now has eleven draft bills on its desk. When I reviewed the first seven several days ago, I found only two that don’t directly reduce the people’s power to initiative and refer laws. The four that have since popped into the hopper aren’t quite as generally inimical to direct democracy.
Bill Draft #7 is my absolute favorite initiative reform yet. It would change the due date for initiative petitions from one year before the general election to June 30 of the election year. If I only got one bill on I&R passed in 2018, this would be the bill. A June 30 election-year due date for initiative petitions rocks for numerous reasons:
- It gives citizens nearly eight more months to collect signatures for initiative petitions.
- It allows initiators an opportunity to place on the ballot an issue that the election-year Legislature fails to act on. (Yes, that’s a narrow window, but it’s doable.)
- It allows initiators to promote their petitions during the election year, making it easier (i.e., cheaper!) for them to advertise and get their issue into voters’ top-of-mind awareness.
- More time to collect signatures means less need to hire petition circulators, meaning more opportunity for genuine grassroots, low-budget campaigners to get their measures on the ballot.
There are two hitches in Bill Draft #7. First, it applies only to initiated laws, not constitutional amendments. Constitutional amendment petitions require twice as many signatures as initiated law petitions, so it wouldn’t make sense to leave amendment backers with less time to collect signatures than initiated law backers. Let’s expand Bill Draft #7 to amend SDCL 2-1-1.1 to set the same later date for initiated constitutional amendments.
The second complication is that June 30 for initiative petitions would differ slightly, in most years, from the deadline for referred measures, which is 90 days after the Legislature adjourns. That deadline usually falls in the last week of June but not on June 30 exactly. The differing dates could cause minor confusion; just to keep things neat, I would suggest expanding Bill Draft #7 to amend SDCL 2-1-3.1 to change the referendum petition due date to June 30 as well or changing the due date for initiatives to 90 days after the Legislature adjourns in an election year. (“June 30” is easier to explain—go with the fixed date!)
Bill Drafts #8 and #9 don’t mess with petitioning (thank you!), but they do mess with passage of constitutional amendments. Currently, South Dakota Constitution Article 23 Section 3 requires a simple majority vote to pass an amendment. Bill Draft #8, lifted from part of Senator Jim Bolin’s 2017 Senate Joint Resolution 2*, would require “at least sixty percent” of votes cast at the general election to pass an amendment. Bill Draft #9 would set that passage threshold at “fifty-five percent.” Requiring more votes to change the constitution than to change the law has precedent in other states and may be reasonable; however, it would make it harder for citizens to make changes.
Bill Draft #10 is a one-off proposal to correct a quirk in a new law on the initiative process. This year the Legislature passed a law (SDCL 2-9-30) requiring the Legislative Research Council to issue fiscal impact statements—not just prison/cost statements, but any revenues, expenditures, or liabilities that an initiative could trigger for state or local governments—for all initiated measures. But that law didn’t take effect until July 1, and the LRC said that it does not apply to initiators who started circulating their petitions prior to July 1. Bill Draft #10 fixes that gap by retroactively applying the fiscal impact statements to the six initiative petitions that were certified for circulation before July 1. As long as the 2018 Legislature doesn’t try to amend this measure to somehow invalidate any petitions that started circulating before July 1 this year, Bill Draft #10 doesn’t really pose a threat to these measures or the initiative process. Heck, the petitioners seeking to decriminalize and tax marijuana might be thrilled to have LRC issue a fiscal impact statement saying their measure would generate $19.6 million in new revenue for the state.
Bill Draft #7 gives citizens more time to circulate petitions. That’s good.
Bill Draft #10 gives voters more information about a few measures that may make the 2018 ballot. That’s fine.
Bill Drafts #8 and #9 would make it harder to amend the state constitution. That’s debatable.
None of these newly posted measures are direct attacks on the initiative and referendum process like five of the first seven bill drafts released.
Wednesday morning, we’ll hear what legislators and other I&R task force members think of these proposals. And in the afternoon, from 1:15 to 3:15, we’ll hear what regular citizens have to say about them during the public comment period. If you didn’t make the June meetings, consider heading to Pierre tomorrow afternoon to tell the task force what you think of initiative and referendum and the task force’s efforts to fiddle with that sacred process.
*Update/Correction 2017.07.25 08:07 CDT: SJR 2 would have raised the threshold of passage at the general election from simple majority to 60%. SJR 2 also would have raised the threshold required for the Legislature to put an amendment to a public vote from a simple majority to two thirds of each chamber. My original article omitted the latter element of SJR 2. I regret that omission!