• Tag Archives referendum
  • Libertarian Professor Chairs Initiative/Referendum Committee; Rookie Gets Campaign Finance Chair

    Bob Mercer’s report on the Legislative Executive Board’s meeting Monday contains a number of interesting nuggets.

    First, the Legislature’s Initiative and Referendum Task Force will be chaired by a non-legislator:

    Emily Wanless, a faculty member at Augustana University in Sioux Falls, will chair the task force on initiatives, referendums and constitutional amendments. Several Executive Board members recommended a non-legislator. Wanless is a libertarian.

    Mickelson said Wanless is “very impressive” and “has a passion for these issues.”

    Bolin urged support, saying, “I think it would be a very good move on our part.”

    The vote was 13-1, with Partridge opposed [Bob Mercer, “Plan to Study Workforce Housing in Small Communities,” Rapid City Journal, 2017.05.16].

    A Libertarian in charge of a Legislative interim committee—congratulations, Dr. Wanless! That makes you the highest-ranking Libertarian in South Dakota!

    Dr. Wanless did say of the plethora of ballot measures in 2016, “For a time in which people are complaining about the inefficiency of government and the lack of trust with legislators, this is a more direct process.” That line suggests a recognition of the value of initiative and referendum as a popular check on Legislative power. But a true Libertarian might be no more willing to give the people expansive power to make laws than she is to give government such power. Given that the Legislature created this task force with an eye toward curbing our constitutional right to make our own laws, and given that the committee’s vice-chair is Rep. Don Haggar (R-10/Sioux Falls), who wants to hamstring voter power and makes the laughable assertion that putting measures on the ballot is easy, all small-d democrats should pay close attention to this committee’s actions over the summer.

    One would think that a non-legislator would be a good choice to chair the Government Accountability Task Force as well. But no—legislators think they can keep themselves accountable. The Executive Board chose rookie Senator Jordan Youngberg (R-8/Sioux Falls) to head that panel as it discusses changes in campaign finance law. Senator Youngberg is one of two rookie legislators on the task force; the other six are veteran legislators who have more experience with campaign finance and the changes it has undergone not just this year in the wild churn of IM 22 repeal and replacement but in past campaign cycles. Picking a rookie to lead the effort suggests the Republican leadership is more interested in boosting the profile of another Lake County Prostrollo-machine golden boy than in pushing hard for significant changes in their campaign finance rules.

    Finally, the Executive Board drastically narrowed the scope of Speaker Mark Mickelson’s (R-13/Sioux Falls) workforce housing committee by deciding to focus only on housing issues in towns of 5,000 people or fewer… meaning the committee will look at towns where the majority of South Dakotans don’t live. Trust me: if there’s anyplace where we need to study the challenges of finding affordable housing for workers, it’s not in the flat housing and labor markets of our smallest towns; it’s in the bigger towns where demand boosts housing prices faster than wages (oh! there’s that word legislators and business people will try to avoid bringing up during the committee hearings!).



  • LRC Gets Three Drafts of Voter Initiative Protection Amendment

    Here’s a twist: Roxanne Weber and Nicholas Rasmussen of South Dakota Voter Protection did not submit one draft of an initiated constitutional amendment to protect the initiative and referendum process Friday. They submitted three.

    The three drafts are similar, so one may guess that perhaps the sponsors are testing which receive the most favorable response from the Legislative Research Council and, if they do the same at the next review level, the Attorney General.

    Here are the three versions of the Voter Initiative Protection (VIP) Amendment, followed by the initiative and referendum portion of the Voter Protection and Anti-Corruption (VPAC) Amendment proposed last week by Represent South Dakota:

    VIP Draft #1

    Section 1: That Article III, Section 1 of the Constitution of the State of South Dakota be amended to read as follows:

    Ҥ1. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be. A law enacted by the Legislature that is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions may be referred to a vote of the electors of the state within ninety days of the law going into effect. Any such emergency law shall remain in effect until the law is voted upon by the people. If an emergency law is rejected by a majority vote in a general or special election open to the electors of the state, the law is repealed. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

    If a majority of votes cast upon an initiated or a referred measure are affirmative, the measure shall be enacted. An initiated or referred measure which is approved shall become law thirty days after the election. If conflicting measures are approved, the measure receiving the highest number of affirmative votes shall be law. A measure approved by the electors may not be repealed or amended by the Legislature for seven years from its effective date, except by a two-thirds vote of the members elected to each house.

    “This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.”

    Section 2: That Article III of the Constitution of the State of South Dakota be amended by adding a new section to read as follows:

    The Legislature must refer to a vote of the electors of the state any law effectively changing the number of electors required to submit initiated measures, referred laws, or constitutional amendments to a public vote; the time available for electors to circulate initiative, referendum, or constitutional amendment petitions; the number of electors who must vote to pass an initiated measure, referred law, or constitutional amendment; or the enactment date of measures submitted to a vote of the electors of the state. No law changing the criteria enumerated in this section takes effect until after that law has received a majority vote in a general or special election open to the electors of the state.

    Section 3: That Article XXIII, Section 1 of the Constitution of the State of South Dakota be amended to read as follows:

    “§1. Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least not more than ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment.”

    VIP Draft #2:

    Section 1: That Article III, Section 1 of the Constitution of the State of South Dakota be amended to read as follows:

    Ҥ1. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be. A law enacted by the Legislature that is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions may be referred to a vote of the electors of the state within ninety days of the law going into effect. Any such emergency law shall remain in effect until the law is voted upon by the people. If an emergency law is rejected by a majority vote in a general or special election open to the electors of the state, the law is repealed. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

    If a majority of votes cast upon an initiated or a referred measure are affirmative, the measure shall be enacted. An initiated or referred measure which is approved shall become law thirty days after the election. If conflicting measures are approved, the measure receiving the highest number of affirmative votes shall be law. A measure approved by the electors may not be repealed or amended by the Legislature for seven years from its effective date, except by a two-thirds vote of the members elected to each house.

    This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.”

    VIP Draft #3:

    Section 1: That Article III, Section 1 of the Constitution of the State of South Dakota be amended to read as follows:

    §1. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be. A law enacted by the Legislature that is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions may be referred to a vote of the electors of the state within ninety days of the law going into effect. Any such emergency law shall remain in effect until the law is voted upon by the people. If an emergency law is rejected by a majority vote in a general or special election open to the electors of the state, the law is repealed. If the emergency law repeals or amends an initiated measure, it shall only be enacted by a three-fourths vote of all the members of each house of the Legislature. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

    This section shall not be construed so as to deprive the legislature or any member thereof the right to propose any measure. However, the Legislature may repeal or amend an initiated measure only by a two-thirds vote of all the members of each house of the Legislature; the repeal or amendment of the initiated measure will remain in effect until a vote of the electors of the state at the next general or special election. The veto power of the Executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.

    VPAC I&R Provision (Section 3):

    Section 3. That Article III, Section 1 of the Constitution of South Dakota be amended to read as follows:

    The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and. Such measures, if approved by a simple majority of those voting on the measure, shall become effective sixty days after approval. Legislation or other action that repeals, amends, or otherwise frustrates the effectuation or implementation of any such measure shall not go into effect until submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question.

    The people also expressly reserve the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, for which the Legislature shall state specific facts evidencing such necessity.

    No law substantively changing the rules, requirements, or criteria governing the initiative or referenda process shall take effect until after that law has been submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

    This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measuresan initiated measure approved by the people or a measure referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.

    To summarize the main changes of each:

    VIP Draft #1:

    1. Allow referral of emergency legislation.
    2. If referred, emergency legislation remains in effect until and unless majority votes it down.
    3. Approved initiatives and referred laws become law 30 days after election.
    4. When measures conflict, measure with higher vote total becomes law.
    5. For seven years after enactment, initiatives and referred laws can’t be repealed or amended by Legislature without two-thirds vote.
    6. Legislature must refer to public vote any measure changing number of signatures, time for circulating petitions, votes required for passage at election, or enactment date of initiatives and referred laws.
    7. Change 10% of voters from minimum to maximum signatures required for initiated constitutional amendment petition.

    VIP Draft #2:

    1. Allow referral of emergency legislation.
    2. If referred, emergency legislation remains in effect until majority votes it down.
    3. Approved initiatives and referred laws become law 30 days after election.
    4. When measures conflict, measure with higher vote total becomes law.
    5. For seven years after enactment, initiatives and referred laws can’t be repealed or amended by Legislature without two-thirds vote.

    VIP Draft #3:

    1. Allow referral of emergency legislation.
    2. If referred, emergency legislation remains in effect until majority votes it down.
    3. Emergency law repealing or amending initiative requires three-quarters vote of each chamber of Legislature.
    4. Initiatives can’t be repealed or amended by Legislature without two-thirds vote.

    VPAC I&R Provision:

    1. Approved initiatives become law 60 days after election.
    2. Action that “repeals, amends, or otherwise frustrates” initiated measure must be referred to public vote and win majority at statewide election.
    3. Clarifies that initiative and referendum pass by simple majority vote.
    4. Legislature must give facts justifying use of emergency clause on legislation.
    5. Any substantive change to initiative and referendum process must be referred to public vote and win majority at statewide election.
    6. Clarifies that Governor can’t veto initiatives.

    At the moment, I’d prefer VIP #1 or the VPAC provision. Both do more to check the Legislature’s infringement of our rights to initiate and refer laws. Both address enactment date, and both protect signature counts and other criteria that the Legislature could inflate to make the process harder for us to use.

    I welcome your analysis of the above drafts to determine which would be best for the initiative and referendum process!



  • Second Group Proposes Constitutional Amendment Focusing on Protecting Initiative and Referendum

    A second initiated amendment is afoot!

    A new website, SDVoterProtection.info, which appears to have been published just yesterday, says that Roxanne Weber of Pierre and Nicholas Rasmussen of Sioux Falls are sponsoring the “South Dakota Voter Initiative Protection Amendment” (VIP) to give voters “a simple, clean, and effective way to preserve voter initiative efforts in this state.” The website is branded as “The Only Truly Grassroots Effort meant to protect the South Dakota Initiative Process in 2018.”

    Those two lines appear to critique the Voter Protection and Anti-Corruption Act (VPAC) announced yesterday by Represent South Dakota. VIP deals only with protecting initiative and referendum from Legislative tinkering, while VPAC tackles initiative and referendum, campaign finance lobbying, and a statewide ethics commission.

    Exact amendment text is not available on the VIP website; however, Weber and Rasmussen signal they will offer a half-page amendment.

    If both measures circulate, voters will need to review the details of both measures closely and ask these questions:

    1. Does each measure offer positive, practical changes?
    2. Does having both measures on the ballot create confusion that could harm each measure’s chance of passage?
    3. If the measures conflict, which would be better to have on the ballot, the narrower or the broader?
    4. If both get on the ballot, and if both pass, and if they conflicting provisions, which one takes precedence?

    Stay tuned—I’m working on getting text of the amendments so we can dig in to see what may be coming to petitions on your favorite street corner!



  • Exclusive: Text of Proposed Voter Protection and Anti-Corruption Amendment!

    Yesterday Represent South Dakota submitted a constitutional amendment to the Legislative Research Council for review. Here’s the full text of that amendment for our review. I intersperse my explanations and commentary:

    Section 1. This amendment shall be known as the South Dakota Voter Protection and Anti-Corruption Amendment.

    Section 2. That Article XXX of the Constitution of South Dakota be created by adding new sections to read as follows:

    §1 Whereas the motto of the state of South Dakota is “Under God the People Rule” and whereas the Legislature inherently derives its power from the consent of the people, the people of South Dakota hereby find and declare that in order to protect the public trust:

    1. Public officials, candidates, and lobbyists must be subject to robust ethics, conflict-of-interest, and anti-corruption laws;
    2. A strong and independent citizen ethics commission is necessary to oversee and enforce those laws in the name of the people of South Dakota; and
    3. The will of the people, especially when voiced to ensure the integrity, honesty, and accountability of their government, must be respected.

    §2 The offenses of bribery and corrupt solicitation described in Article III, Section 28 shall be Class 4 felonies.

    §3 A lobbyist may not knowingly give or offer a gift to an individual who they know or should know is a senior public servant. This prohibition does not apply if the lobbyist is the spouse, fiancée, or fiancé, or is, whether by blood or by marriage, a child, parent, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew of the senior public servant. Any person who violates this section shall be guilty of a Class 1 misdemeanor.

    The latter item seeks to toughen up the lobbyist gift ban passed in House Bill 1073. But I wonder: would this language prevent the Legislature from continuing to exempt food and drink from the definition of “gift”?

    §4 No public official may knowingly use state resources for improper personal gain. Any public official who violates this section shall be guilty of a Class 1 misdemeanor, but a public official who knowingly uses state resources for improper personal gain in a way that is significantly exploitative of the state shall be guilty of a Class 2 felony.

    This item cranks up Marty Jackley’s Senate Bill 27, which would define such misuse of state resources as theft and subject misusers to penalties ranging from Class 6 felony only up to Class 3 felony. This item’s Class 2 felony punishment is up to 25 years and $50,000.

    §5 A foreign government, foreign corporation, foreign political party, or foreign national may not make a contribution or expenditure in connection with any state or local candidate or ballot-issue election.

    §6 A candidate or person holding elected office may not knowingly use a campaign contribution for personal use. Any person who violates this section shall be guilty of a Class 5 felony.

    This item amps up Bille Sutton’s amendment to Senate Bill 54, Section 41, which bans conversion of campaign funds to personal use but specifies no penalty.

    §7 A labor union or corporation may not, directly or through an intermediary, make a campaign contribution to a candidate or political party.

    There’s the undoing of the big, sneaky, yucky part of SB 54 that lets more big money into state politics. Yay, Item #7!

    §8 A candidate may not knowingly solicit, accept, or receive a campaign contribution within the South Dakota capitol building. Any person who violates this section shall be guilty of a Class 1 misdemeanor.

    §9 A senior public servant may not become a lobbyist, other than a public lobbyist for state or local government, while they are a senior public servant and for a period of two years after they cease to be a senior public servant. Any person who violates this section shall be guilty of a Class 1 misdemeanor.

    The two-year revolving-door provision was in Initiated Measure 22; the Legislature enacted it in Senate Bill 131. This item thus represents the main thesis of this amendment that we can’t trust the Legislature to leave in statute the protections against corruption that we want and that to make those protections stick, we must write them into the state constitution, which only the people can change.

    §10 A lobbyist may not knowingly deliver a campaign contribution made by another individual or entity. Any person who violates this section shall be guilty of a Class 1 misdemeanor.

    As used in this section, “deliver” means to transport, carry, transfer, or otherwise transmit, either physically or electronically. The prohibition in this section does not apply when a person delivers a campaign contribution to his or her own campaign, or to the campaign of his or her immediate family member, and shall not be interpreted to prohibit any person from making a campaign contribution or from encouraging others to make campaign contributions or otherwise support or oppose a candidate.

    §11 A judge shall avoid the appearance of bias, and shall disqualify himself or herself in any proceeding where monetary or in-kind support related to the judge’s election or retention creates an appearance of bias to a reasonable person.

    Judges! That’s a new item compared to the provisions of IM 22. I wonder if Judge Mark Barnett, who helped his Republican pals throw out IM 22, raised Represent South Dakota’s hackles.

    §12 A candidate may not accept campaign contributions from a single source that, in total and per election cycle for the office sought, exceed:

    1. $500 for the office of member of the South Dakota house of representatives, or for any other local, non-statewide elected office other than member of the South Dakota senate, including, but not limited to, county, municipal, and school board office;
    2. $750 for the office of member of the South Dakota senate;
    3. $1,500 for the office of attorney general, lieutenant governor, commissioner of school and public lands, auditor, treasurer, and secretary of state, or for any other statewide elected office other than Governor; and
    4. $4,000 for the office of Governor.

    The limits prescribed in this section do not apply to contributions made by a political party, or to contributions made by the candidate or the candidate’s spouse to the candidate’s own campaign. The dollar amounts in this section shall be adjusted for inflation by the secretary of state after each general election.

    §13 A political party may not accept campaign contributions from a single source that, in total and per calendar year, exceed $5,000. For the purposes of this section, a state party and its affiliated local committees and/or subdivisions shall be treated as a single political party recipient. The dollar amounts in this section shall be adjusted for inflation by the secretary of state after each general election.

    Specific dollar limits seem like policy nitty gritty better left to statute… but again, this amendment’s point appears to be that if we leave campaign finance limits in the hands of campaigners, we’ll never get good limits. Notice that the above two items relieve us of the burden of amending the constitution every decade or two to adjust to economic realities by directing the Secretary of State to adjust these amounts by inflation after every election.

    §14 The Legislature shall regulate persons who are employed or otherwise gainfully compensated to act as a lobbyist to influence in any manner legislative, executive, or administrative action, and shall ensure that such persons promptly register with the state as lobbyists and disclose information pertinent to the public interest.

    §15 (1) The people of South Dakota find and declare that the Legislature’s State Government Accountability Board did not fully respond to the people’s demand for strong and accountable ethics oversight, in that:

    1. The Legislature exempted itself from oversight by that board; and
    2. The oversight authority of that board was inadequate to protect the public trust.

    Therefore, the people of South Dakota find and declare that they are best suited to create an ethics commission that can adequately protect the public trust, and hereby nullify the State Government Accountability Board created by the Legislature in 2017 in House Bill 1076 and in its place create a new State Government Accountability Board to serve as an independent citizen ethics commission.

    Repeal and replace the Legislature’s GAB? There’s some sweet revenge there. Let’s hope the Democratic sponsors of HB 1076 don’t take this measure personally.

    The State Government Accountability Board shall serve as an independent entity, notwithstanding any other provision of the Constitution of South Dakota, including Article II, and shall conduct itself in a nonpartisan manner with integrity, honesty, and fairness. All rules adopted, investigations conducted, and sanctions imposed by the board are subject to judicial review consistent with the Constitution.

    (2) All South Dakota registered voters are eligible to apply for membership on the board. Only registered voters may be members. The board shall be directed by seven members appointed from those who have applied as follows:

    1. Two members appointed by the South Dakota Supreme Court, each of whom shall be a former or retired judge, and each of whom shall be registered with a different major political party;
    2. One member appointed by the Governor from a list of at least three registered voters provided by the speaker of the house of representatives;
    3. One member appointed by the Governor from a list of at least three registered voters provided by the minority leader of the house of representatives; and
    4. Three members, at least two of whom shall be nonlawyers, each appointed by majority vote of the four other members.

    I’m a bit uneasy that this item gives members of the two major political parties (see definition below in §16) places of privilege on the committee. But one could argue that this provision avoids the partisan gambit Al Novstrup used to argue against Amendment T last year, the notion that Republicans could still capture an independent board by appointing the maximum number of Republicans, friendly Independents and Libertarians, and no Democrats. Checking one major political party may require ensuring that they are balanced by members of the other major political party.

    No member may be registered as a lobbyist or may hold other local, state, or federal public office or political party office while a member. Each member shall have been continuously registered with the same political party, or continuously registered as unaffiliated with any political party, for the two years immediately preceding appointment. Each member shall serve for a period of four years, except that after the initial appointments are made, the secretary of state shall select, in a random public drawing, one member to serve a one-year term and two members each to serve two-year, three-year, and four-year terms, respectively, for their first term only, to achieve staggered ending dates. Members shall not serve more than two terms. Service of a term means service of more than two years of a term. Any vacancy shall be filled within seventy-five days in the manner in which that position was originally filled. If a vacancy is not filled within seventy-five days, the Supreme Court shall fill the vacancy within an additional sixty days. Initial members shall be appointed by September 1, 2019. If all seven initial members are not appointed by this date, the Supreme Court shall appoint the remaining members by November 1, 2019. The secretary of state shall impartially facilitate the member appointment process.

    Members may be removed by the Governor, with the concurrence of the senate, only for substantial neglect of duty, gross misconduct, or inability to discharge the powers and duties of office, after written notice and an opportunity for response.

    (3) The board shall have the power, notwithstanding any other provision of the Constitution, to:

    1. Investigate allegations of bribery, theft, or embezzlement of public funds, or any other violations of this Article, ethics rules, or state law related to government ethics, campaign finance, lobbying, government contracts, or corruption by any elected or appointed official, judge, or employee of any state or local government, and to issue subpoenas requiring the attendance of witnesses or the production of books, records, documents, or other evidence relevant to an investigation;
    2. Adopt ethics rules, subject to rulemaking procedures as defined by law, including, but not limited to, provisions on campaign finance, conflicts of interest, confidential information, use of position, contracts with government agencies, legislative recusal, and financial interest disclosure, to which all elected or appointed officials, judges, and employees of state or local government shall be subject. The process for adopting ethics rules shall include opportunities for public input and public participation. Nothing in this Article shall prohibit the Legislature from enacting laws that are not inconsistent with, or contradictory to, the ethics rules adopted by the board;
    3. Issue advisory opinions, which may be relied upon by any person involved in the specific transaction or activity with respect to which such advisory opinion is rendered, and by any person involved in any specific transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which such advisory opinion is rendered. Notwithstanding any other provisions of law, any person who relies upon any provision or finding of an advisory opinion in this regard and who acts in good faith in accordance with the provisions and findings of such advisory opinion shall not, as a result of any such act, be subject to any sanction provided by this Article;
    4. Adopt rules of procedure for the board, including rules to prevent the abuse or overuse of the submission of complaints;
    5. Hire and supervise staff, including such legal, investigative, and administrative and clerical employees as are necessary to support the functions of the board;
    6. Conduct specific or random audits of disclosures required by state campaign finance, ethics, lobbying, and government contracting law;
    7. Impose sanctions on any elected or appointed officials, judges, or employees of state or local government, including the power to issue orders, impose fines, and commence administrative actions. The board shall issue written explanations justifying such sanctions;
    8. Refer information or complaints alleging violations of this Article, the board’s ethics rules, or state laws related to ethics, campaign finance, or corruption to the appropriate prosecutorial authority or to internal or outside counsel hired or selected by the board, before, during, or after an investigation;
    9. Conduct educational programs for the benefit of the public and those subject to this Article; and
    10. Exercise additional powers not inconsistent with this Article as may be conferred by law.

    (4) The board shall convene at least once every quarter. The assent of four members shall be required for the consideration and resolution of matters that involve the exercise of the board’s duties and powers under this Article, including the adoption or approval of all motions, procedures, provisions, and appeals, the hiring of staff, the issuance of advisory opinions, the referral to the appropriate prosecutorial authority of complaints alleging potential violations, and the imposition of sanctions, except that the assent of three members shall be required for the convening of meetings, the initiation and carrying out of investigations, including the issuance of subpoenas, the approval of public education materials, the approval of minutes of previous meetings, and actions related to board contracts.

    (5) Unless otherwise prohibited by federal or state law, any person acting in good faith may furnish information, or file a complaint, which may be anonymous, alleging a suspected, anticipated, or completed violation, and may request a status update to which the board shall respond in writing within sixty days. Any public employee may file a grievance with the Civil Service Commission, or other appropriate agency or entity, if the employee believes that there has been retaliation from his or her employer because of his or her reporting of a suspected, anticipated, or completed violation through the chain of command of the employee’s department, or to the board.

    (6) All final reports and findings shall be made available to the public within ten days of completion. The board shall annually report to the people on its activities. The report shall include comprehensive information concerning the board’s activities, including the number of complaints received, complaints filed by separate persons, investigations conducted, hearings held, sanctions imposed, and advisory opinions issued.

    (7) On an annual basis beginning in 2020, the board shall issue to the Legislature written recommendations for legislation that seeks to increase public trust, transparency, and accountability in government and elections and decrease the risk of corruption and conflicts of interest.

    (8) Members shall complete financial interest disclosure statements.  Any member who has a personal, private interest in a matter before the board, or with a direct and substantially related interest in a matter, must disclose the fact of such interest and must recuse himself or herself from working on the matter, unless their vote would be necessary to resolve the matter.

    (9) All provisions of this section shall be enforceable by any circuit court. The board may intervene as a matter of right in any civil action involving any government entity, agency, or instrumentality alleged to be in violation of any mandate or prohibition of this Article, and in any civil action relating to its powers or to the sufficiency of resources provided for the board’s implementation and operation.

    (10) On July 1, 2019, and on every July 1 thereafter, the state treasurer shall transfer from the state general fund three hundred and eighty-nine thousand dollars, indexed to inflation, to a separate constitutional Ethics Law Enforcement Fund to be administered solely by the board. This transfer shall occur notwithstanding any other provision of the Constitution. The Legislature shall ensure that this amount of money is available in the state general fund for the state treasurer to make such transfer. Only the board may authorize the spending or transfer of moneys from the Ethics Law Enforcement Fund. The Legislature may appropriate additional funds to the Ethics Law Enforcement Fund or another fund for use by the board for its various expenses. While serving on business of the board, members shall receive reasonable travel expenses and per diem compensation. This provision shall be self-executing.

    Recall that Judge Barnett said voters can’t appropriate money. The amendment here directs the Legislature to make money available. Constitutional scholars, is there a difference between appropriation by initiated law and appropriation by constitutional amendment?

    §16 Terms used in this Article have the following meanings:

    1. “Corporation,” any corporation, nonprofit corporation, company, limited liability company, limited partnership, business trust, business association, or other similar entity;
    2. “Elected office,” a non-federal office elected by South Dakota voters;
    3. “Gift,” any item, service, or thing of value not given for fair market consideration, but “gift” does not mean purely informational materials or campaign contributions;
    4. “Local,” any subdivision of the state for governmental, political, or related purposes, including, but not limited to, a county, municipal, town, local, or school board subdivision;
    5. “Major political party,” the two parties which polled for their respective candidates for the office of President of the United States the highest and the next highest number of votes at the last general election for such office;
    6. “Personal use,” to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign;
    7. “Senior public servant,” any person holding a non-federal office elected by South Dakota voters, or a non-elected individual who is an appointed officer, director, commissioner, head, or other executive or co-executive of a state agency, board, division, institution, or principal department, including, but not limited to, a member of the State Government Accountability Board and a gubernatorial cabinet member.

    §17 Each provision of this Article is intended to be independent and severable, and if any provision is held to be invalid, either on its face or as applied to any person, entity, or circumstance, the remaining provisions, and the application thereof to any person, entity, or circumstance other than those to which it is held invalid, shall not be affected thereby.

    LRC will say this severability clause is unnecessary. Judge Barnett said otherwise on IM 22, so Represent SD is using this clause to cover its bases.

    In any case of a conflict between any provision of this Article and any other provision contained in this Constitution, the provisions of this Article shall control.

    §18 This Article is self-executing and shall take effect sixty days after approval. Each provision shall be justiciable and enforceable by any circuit court. Laws may be enacted to facilitate, safeguard, or expand, but not to hamper, restrict, or impair, the powers this Article grants and the protections it establishes.

    This enactment trumps Senate Bill 59, which sets the enactment date of initiated measures as July 1 after the general election.

    Section 3. That Article III, Section 1 of the Constitution of South Dakota be amended to read as follows:

    The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and. Such measures, if approved by a simple majority of those voting on the measure, shall become effective sixty days after approval. Legislation or other action that repeals, amends, or otherwise frustrates the effectuation or implementation of any such measure shall not go into effect until submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question.

    The people also expressly reserve the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, for which the Legislature shall state specific facts evidencing such necessity.

    No law substantively changing the rules, requirements, or criteria governing the initiative or referenda process shall take effect until after that law has been submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

    This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measuresan initiated measure approved by the people or a measure referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.

    There’s our protection of initiative and referendum. Instead of being able to flat-out repeal a measure we voters have approved, legislators must kick their repeals and tinkerings and “otherwise frustrations” back to us for our approval.

    Section 4. Each provision of this Amendment is intended to be independent and severable, and if any provision is held to be invalid, either on its face or as applied to any person, entity, or circumstance, the remaining provisions, and the application thereof to any person, entity, or circumstance other than those to which it is held invalid, shall not be affected thereby.

    LRC will review this proposal and offer its recommendations on style, form, and substantive matters by April 21.



  • Represent South Dakota Rallies Against Legislative Arrogance: Shall We Refer?

    Citizens rally against corruption in Pierre, South Dakota. Photo by Roxanne Weber, Facebook, 2017.03.25.
    Citizens rally against corruption in Pierre, South Dakota. Photo by Roxanne Weber, Facebook, 2017.03.25.

    Represent South Dakota is still beating the drum over the Legislature’s arrogant reversal of the voter-approved Initiated Measure 22. The organization assembled a few dozen activists to march in downtown Sioux Falls and Pierre to protest the failure of our elected officials to respect the will of the people. Represent South Dakota co-founder Mark Winegar sends this note about why he’s still in the streets:

    A group of thirty concerned citizens gathered together in Sioux Falls on a cold Saturday morning  on March 25 to rally for a State Government worthy of their trust. That’s what IM 22 was all about.

    We chanted as we walked along Phillips Avenue, “Under God, the People Rule” and chatted with passersby. One women suggested South Dakota is a canary in a mine. This is a place where ideas can be floated to see if they register in a red state.

    Legislators in Pierre had a fit about the South Dakota Accountability and Anti-Corruption Act originating in Massachusetts. So did the idea of “no taxation without representation” and independence from Great Britain. Being the canary in the mine can be a good thing.

    We are the people of South Dakota and we aren’t going anywhere Mr. Mickelson. We are still waiting for legislation that honors the spirit of IM 22. You can choose to work with us or not. We will be here working toward a government worthy of trust. We were thirty today but there will be more tomorrow [Mark Winegar, letter to the editor, 2017.03.25].

    Massachusetts as birthplace of the Tea Party and one of the American Revolution’s best slogans—thanks for that reminder, Mark!

    With the Legislature wrapping up its dispiriting 2017 Session with Veto Day today, referendum season begins. Anyone wanting to refer any of the Legislature’s boneheaded bills to a public vote in 2018 can start circulating petitions after Speaker Mickelson and Lt. Governor Michels have both given their gavels the final bang.

    Will we see those Represent South Dakota ralliers trading their signs for clipboards and petitions? If so, what 2017 bills are odious enough to warrant the effort of a referendum drive?



  • Dakota Free Press Podcast 002: Trumpcare, Petitions, Adoption, and Stand-Up Comedy!

    The newest Dakota Free Press Podcast is ready for your earbuds!

    In this week’s show…:

    • Co-host Spencer Dobson and I express our love for snowplow drivers.
    • [3:30] Spencer follows up on questions from Episode 001 on marijuana finance and science.
    • [7:00] I explain how the GOP health care plan could damage South Dakota’s budget and economy.
    • [12:45] Spencer and I talk about protesting bad laws with online petitions and actually repealing bad laws with referendum petitions.
    • [19:05] We go deeper on Senate Bill 149, South Dakota’s attempt to stop same-sex couples from adopting children.
    • [32:25] Finally, I get Spencer to tell us about his career as a stand-up comic.

    Podcast Links:



  • Can Online Petitioners Turn SB 149 Protest into Real Repeal Drive?

    South Dakota took the first full legislative swing of 2017 at homosexuals, atheists, gun owners, folks who sleep in on Sunday morning, and other sinners with passage of Senate Bill 149, the “if you don’t go to our church, you’re a bad parent” discrimination-in-adoption bill.

    As a parent who could be deemed unworthy by the religious beliefs of most licensed child placement agencies in South Dakota, I find SB 149 particularly odious. I was thus thrilled to see the KELO-TV headline, “Woman Starts Petition to Repeal Adoption Bill.”

    But she’s not, really:

    [Sara DeSmet] just recently started a petition to repeal SB 149, and is hoping to rack up enough signatures to get the Governor’s attention.  DeSmet is a supporter of the LGBT community and believes the new law is discriminatory.

    “That’s not fair. It’s preventing them from moving forward, especially as far as they’ve come already,” Sara DeSmet said.

    Along with dozens of supporters online, Laurie DeSmet and her husband are planning to join the fight.

    “The state of South Dakota could come into the 21st century. They’re capable of loving children, of providing them good homes, and education, safety, things that they don’t have for whatever reason they’re in the foster care system,” Laurie DeSmet said [Calah Kelley, “Woman Starts Petition to Repeal Adoption Bill,” KELO-TV, 2017.03.12].

    I agree wholeheartedly with the DeSmets’ sentiments. I am pleased to see that, thanks to press coverage, the Change.org protest has drawn (as of 07:07 CDT) 1,722 supporters.

    But we understand that an online petition has no force of law. The people to whom this Change.org protest is addressed—Governor Dennis Daugaard, who signed SB 149 last Friday, and Senator John Thune and Representative Kristi Noem, who had nothing to do with the passage of this state law—have no power to repeal this law (not to mention little desire and no formal obligation to respond to this online protest).

    If you really want to repeal this unnecessary and spiteful law, here’s how:

    1. Keep collecting names and addresses via Change.org.
    2. Prepare a referendum petition according to this format.
    3. Prepare a form that petition circulators can hand out to signers “containing the title of the referred law; the name, phone number, and email address of each petition sponsor; and a statement whether the petition circulator is a volunteer or paid petition circulator and, if a paid circulator, the amount the circulator is being paid” (this is a new onerous requirement foisted upon petitioners by the Legislature last year).
    4. Get the petition and handout approved by the Secretary of State.
    5. Get copies of that petition, the handout, and the rules for circulating in the hands of all of the adult South Dakota residents on your list.
    6. On Monday, March 27, after the Legislature adjourns, tell every one of those circulators to walk down the street and get 20 signatures from South Dakota registered voters.
    7. Once those circulators get all the signatures they can, tell them to take their signed sheets to a notary public (go to the courthouse or your favorite bank) and get the notary’s seal on each sheet.
    8. Collect all of those sheets and submit them to Secretary of State by Monday, June 26, 5 p.m. CDT with at least 13,871 valid signatures (if you get 1,000 volunteers from your Change.org protest, and if each one collects 20 signatures, you should have a safe 20,000 signatures, a good cushion target for any referendum drive this year).

    Online petitions are good organizing tools, but if we want to repeal SB 149, we need to break out the pens and paper.



  • HB 1141 Initiative & Referendum Task Force Still Stacked with I&R Opponents

    When House Bill 1141 hit the hopper, I complained that prime sponsor Representative David Lust was picking too many insiders who view ballot measure as a threat to their power to serve on his initiative and referendum task force.

    Recognizing that the initiative and referendum process “affects all of us,” Rep. Lust amended HB 1141 to include more people on his I&R task force. His amendment, approved Wednesday in House State Affairs, expands the I&R task force from seven to fifteen. It keeps four Republican legislators and adds two Democrats. It keeps the Secretary of State and Attorney General but removes their voting power. It keeps a seat for the Chamber of Commerce and adds a seat for the Municipal League and the county commissioners’ association. The Speaker of the House now gets to pick a poli-sci prof. The Governor picks one member; the Board of Elections picks two.

    So out of thirteen voting members, we have at least eight members—six legislators, one city official, one county official—whose power is inherently challenged by initiative and referendum. We have the Chamber, which has opposed more ballot measures than it supports. Of the four remaining seats, two spots will be filled by Governor Dennis Daugaard and Speaker G. Mark Mickelson, who have dismissed the validity of initiative votes and sought to weaken voter power. Only the Board of Elections offers a reasonable hope of appointing two people who might work hard just to protect initiative and referendum from further Legislative restriction, never mind actually try to expand the people’s power to legislate.

    That’s about as bad as the 2015 Blue Ribbon teacher pay panel, which included lots of legislators but only two teachers. What is Pierre’s aversion to loading task forces with people who most directly know whereof they speak?

    Recognizing this anti-I&R slant, Representative Spencer Hawley cast the only dissenting vote on HB 1141 Wednesday. He lamented that the task force does not include anyone who has brought forth ballot measures. Rep. Don Haggar, who has openly attacked the initiative process as too easy, poo-pooed Hawley’s concerns, saying that the I&R task force will take public testimony and take all input into “due consideration.”

    Rep. Haggar, please understand if I do not share the smug complacency of your comfortable majoritarianism. A task for dealing with direct democracy needs to consist of a majority of people who practice that direct democracy, not more of you legislators who think you know better than us voters.

    I still want this task force to happen. I’d love to see a full summer spent holding public discussions around the state about the merits and problems of initiative and referendum. Heck, I’d love to be on this task force, since I bring experience as a ballot measure sponsor, petitioner, advocate, and challenger.

    So here’s my amendment for a better, more people-centric task force:

    1. Two Senators, one from each party.
    2. Secretary of State, with voting power. She has to deal with the petitions, so she has to be in the room. Plus, Secretary Krebs has dealt fairly with me in every ballot measure question, so I value her input on this task force.
    3. One county commission member (initiative and referendum do affect local government!).
    4. One city council member.
    5. Six members of ballot question committees (at least three having been direct sponsors of ballot measure petitions) over the last three election cycles.
    6. Six registered voters who, over the last three election cycles, have neither held elected office nor had any organizational or financial association with any ballot question committee.

    Seventeen people, a majority consisting of voters and petitioners, with input from elected officials affected by initiative and referendum—that’s the group we need leading the conversation on direct democracy.

    Related Constitutional Complication: Rep. Lust might at least want to remove his explicit favoritism to the Chamber of Commerce. Arguably, reserving a task force seat for the Chamber violates Article 3, Section 23, the South Dakota Constitution’s prohibition of “private and special laws”:

    The Legislature is prohibited from enacting any private or special laws in the following cases:.. 9. Granting to an individual, association or corporation any special or exclusive privilege, immunity or franchise whatever [SD Const. Art. 3 Sec. 23].

    The Chamber is an association. Sitting on the I&R task force is a special privilege. I’d contend HB 1141 thus cannot explicitly give that privilege to that organization or any other.



  • Don’t Mess with Us—A Proposal to Protect Initiative and Referendum from the Legislature

    A key part protecting voters and progressive values from corruption in Pierre (not to mention fascism in the White House) is ballot initiatives.

    Our Republican legislators sense that voter power and are doing everything they can to quash it with a multitude of bills weakening our power to make laws ourselves.

    Thus I suggest a state constitutional amendment, the “Don’t Mess with Us!” Amendment, to protect initiative and referendum from the predations of our overreaching Legislature.

    My proposal adds four major protections to initiative and referendum, the first two borrowed from Doug Kronaizl’s 2015 proposal:

    1. Allow citizens to refer bills passed with emergency clauses.
    2. Require a two-thirds vote by both chambers to repeal or amend a voter-approved initiated law.
    3. Require all statutory changes to initiative and referendum process (petition/signature requirements, enactment date, etc.) to be referred to a public vote and approved by a majority of the electors of the state.
    4. Change the Article 23 Section 1 signature requirement for amendment petitions from “at least ten percent” of the last gubernatorial vote to “no more than ten percent….”

    I invite your input on this pro-democracy, anti-Legislative-overreach proposal.



  • Legislators Promise to Honor Voters; Two Task Forces Signal Delay

    On my front step this morning:

    Aberdeen American News, 2017.02.04, page 1A.
    Aberdeen American News, 2017.02.04, page 1A.

    We’ll honor you voters, say our Republican legislators, after overturning a law we voted on and approved less than three months ago.

    I love you—I’ll never do it again, says the abusive husband after giving his wife the back of his hand.

    The implication of this headline promise may not be realized this Session. Opposite a whole bunch of replacement bills is Senate Bill 171, a proposal with bipartisan sponsors to create a “Government Accountability Task Force to study government, campaign finance, lobbyist restrictions, and ethics” and propose legislation for the next Session.

    In the past, task forces have been used to delay action… in this case, action that a majority of voters demanded be taken yesterday. SB 171 could be a failsafe—if all else fails, we at least get a task force—but it could also signal that even in the face of a popular vote and big protests in Pierre, legislators still haven’t found the political will to take action that could curb their perks and power.

    They also haven’t found the will to listen to and empower the voters. The GATF would have thirteen members: four Republican legislators, two Democratic legislators, two picks by the Governor, two by the Secretary of State, two by the Attorney General, and one by the auditor general.

    Hmmm… twelve members chosen by the foxes, one chosen by an office more generally concerned with guarding the henhouse.

    Shall we talk about peopling a task force on domestic abuse with a majority of wifebeaters?

    House Bill 1141 proposes another task force to study revisions to the initiative and referendum process. I wouldn’t mind if that task force delayed every bill proposed this Session revising initiative and referendum, because so far, every bill proposed this Session revising initiative and referendum attacks and weakens the power of the people to propose and vote on legislation directly. Honoring the voters would mean killing every I&R measure except for this task force…

    …but watch out: HB 1141 thinks the people on that task force should be the Secretary of State, the Attorney General, two House members picked by the Speaker, two Senate members picked by the Senate Pro-Tem—all Republicans!—and one representative of the Chamber of Commerce.

    The Chamber?!? Are you kidding me?!? You (you! prime sponsors Lust and Curd!) pick just one non-Capitol critter to sit with six insiders to discuss what’s good for the power of the people, and you pick one special interest lobbyist from a group that has fought numerous initiatives and referenda? Noooooooo way! I’ll spot you the Secretary, the A.G., and one member of each chamber, each of opposite parties, but then you need to place nine regular citizens not holding elected office who have petitioned for ballot measures in the last three election cycles. The I&R task force should have a majority of members whom the I&R process is meant to serve, not a majority of those whom the process rankles.

    I might take the HB 1141 I&R task force over passage of any of the anti-I&R bills in the hopper right now, but if the I&R task force is to promote honest reform (if any reform is needed), we’re going to need a different bunch of people on that task force.

    Honor voters? How about putting us on your task forces to tell you what we know, instead of packing the task forces with your pals from the top?