• Tag Archives referendum
  • I&R Task Force: 2 Draft Bills to Help Voters, 5 to Limit Direct Democracy

    The Legislature’s interim task force on initiative and referendum meets again next week Wednesday, July 19. According to the I&R task force’s newly posted agenda, the committee will convene at 10 a.m. Central in Pierre (Room 413 in the Capitol, same as the June meetings) to consider bill drafts. The I&R task force will take public testimony (this time limited to five minutes per speaker) from 1:15 p.m. to 3:15 p.m., followed by more committee discussion and planning for future meetings.

    The I&R task force documents webpage includes seven bill drafts in response to requests committee members made after just the first few hours of testimony last month. The best of the first six drafts posted so far are trivial; the majority are anti-voter delay and obstruction:

    1. Draft #1 extends the LRC review period for proposed initiatives from 15 days to 15 week days. Without a commensurate shortening of the Attorney General’s review period or an extension of the petition submission deadline, this measure takes away valuable petitioning time from initiative sponsors.
    2. Draft #2 makes the LRC review period proportionate to the word count of an initiative. Proportionate review time unfairly punishes initiators who may propose simple measures which require striking lots of existing language or inserting one short phrase in two or three otherwise lengthy statutes. Perversely, it also means that sponsors who bring complicated measures that may require more time for public explanation will have less time to petition and make their case to the public.
    3. Draft #3 allows the LRC to delay reviewing any ballot measures until after the end of the Legislative Session, conceivably robbing circulators of three months of their twelve-month circulation period.
    4. Draft #4 is non-harmful, directing LRC to include in its written response to initiative sponsors “assistance regarding the substantive content of the initiated measure or initiated amendment in order to minimize any conflict with existing law and to ensure the measure’s or amendment’s effective administration.” This language seems to codify help that I’ve already seen in some LRC responses.
    5. Draft #5 limits the number of initiatives and referenda we citizens can place on the ballot. Those limited spots would go to the fastest-acting ballot question committees, providing an easy way for wealthy billionaires and PACs to crowd grassroots citizens off the ballot. No, no, no.
    6. Draft #6 spells out in statute the Board of Election’s power to dictate font and paper size for petitions. Given that statute already grants the Board of Elections the power to make rules for the form of petitions, this proposal is at best redundant. At worst, it may be a back-door length limit: if the Board of Elections said a petition had to be a single 8.5″x11″ sheet, printed front and back, and use 12-point, single-spaced font, after adding all of the required instructions, A.G. explanation, signature grid, and circulator and notary oaths, sponsors would have room for maybe 800 words of their own initiative language. In a separate research response, LRC says no state limits the size or length of a ballot measure. South Dakota should not lead that way. Legislators face no restrictions on the size of their bills; neither should citizens.
    7. The final item is not a draft but a copy of the Oregon statute authorizing a Citizens’ Initiative Review Commission. It is the only clear, substantial improvement in the initiative process, creating a citizen panel to conduct public hearings on each initiative and prepare pro/con statements for the voters. It’s a great idea for increased public discussion of ballot measures that puts proponents and opponents on an equal footing. It will also empower voters and cost money (reimbursement for panelists and trained moderators), so the Republican Legislature will kill it.

    So far, the score is one measure (#4) to help initiative sponsors, one measure (#7) to help voters get more information, and five measures to put more limits on voters’ ability to exercise direct democracy.

    But that dismal score could change: with nine days until the initiative and referendum task force convenes, more bill drafts could pop onto the agenda before that July 19 meeting!



  • Sioux Falls Opt-Out Referendum Petition Drive Fails; No Anti-Trans Petition to Follow?

    Several days ago, KELO-TV reported that people were “flocking” to sign a petition to refer the Sioux Falls school board’s $50-million property tax opt-out to a public vote. Evidently the “flock” was a little thin: the Friday deadline for the referendum petition came and went with anti-tax petitioner Lora Hubbel turning in only a few dozen signatures. Dakota War College reports that Hubbel had 314 signatures while SD Learn, a second group irate about spending money to educate Sioux Falls kids, collected “over 3,500 signatures,” still well short of the 5,374 necessary to put the opt-out to a vote.

    In my quest for morning lemonade, perhaps we can take this petition failure in Sioux Falls as a good political sign. Opt-out opposition was led by prominent figures of the hard right. Once again, the hard right failed to mount a successful public campaign. Perhaps this failure signals that if Jack Heyd pulls the trigger and starts circulating the anti-transgender initiative petition that he’s been sitting on since April, he won’t find as many eager conservative signers as he might think are out there willing to flog the culture war on the 2018 ballot.



  • I&R Task Force Already Requests Seven Draft Bills

    After just a day and a half of hearings, the Initiative and Referendum Task Force has already asked the Legislative Research Council to draft at least seven bills. This list of bill draft requests, posted on the committee website, may not be all of the draft requests; at Wednesday’s meeting, LRC attorney Wenzel Cummings said he would keep legislator requests for bill drafts confidential if they wished.

    First, I want to note that the fact that we already have seven proposals for changes indicates that the task force is jumping its gun. Its enacting legislation, House Bill 1141, gives the committee this mandate:

    The task force established pursuant to this Act shall study and evaluate the voter constitutional amendment, initiative and referendum process, legislation proposed during the Ninety-second Legislative Session of the South Dakota Legislature relating to the voter constitutional amendment, initiative and referendum process, and other proposals as they relate to the voter constitutional amendment, initiative and referendum process in South Dakota [2017 HB 1141, Section 2].

    Committee chair Dr. Emily Wanless reads that passage as a mandate to conduct “a thorough review of the policies, procedures and regulations surrounding the uses of initiatives and referendums and where needed, suggest any changes that might be warranted.” We can’t get to “where needed” until we conduct that “thorough review” of the status quo. Task force members appear to have laid the following proposals for changes on Day One, before any “thorough review” of current law and practice could be completed. If we do not fully understand how well the state enforces existing safeguards in ballot measure petitioning and campaign finance, we cannot responsibly gauge how well the state would implement any new proposals.

    Under that general critique, let us race ahead with the task force and evaluate each of the seven published bill draft requests:

    1. Allow for fifteen working days on LRC Review & Comment for submitted ballot measures.

    I’m fine with this measure, under one condition: every additional day LRC gets must come out of the 60 days the Attorney General gets to review initiatives. We should not accept any provision that further delays the ability of ballot question sponsors to hit the streets with their petitions.

    2. Number of days for LRC Review & Comment based on number of words in the ballot measure.

    No. Equating word count with complexity misses many possibilities. For instance, an initiative to assign all regulatory authority over septic tanks and other rural wastewater systems not currently governed by municipal governments would be relatively straightforward. However, the text of such a measure would have to include several pages of text striking the 62 sections of SDCL Chapter 34A-5.

    Conversely, one could offer a one-sentence initiative like last year’s IM23—”Notwithstanding any other provisions of law, an organization, corporate or nonprofit, has the right to charge a fee for any service provided by the organization”—which triggers all sorts of complexity as LRC may need to check all the other provisions of law that would not withstand this terse change.

    We make no such provision for wordier bills in the Legislature. Committees, chambers, and the Governor all get the same amount of time to clear each bill, long or short. We should not impose this nitpickery on ballot measures, either.

    3. Exemption from fifteen-day requirement for LRC for ballot measures submitted during Legislative Session.

    I understand the time crunch this proposal seeks to solve. Session is a bad time for a citizen to drop by the Capitol and ask an LRC staffer to add another task to his or her plate. But welcome to public service. The Legislature does not get to give itself precedence over the general public in accessing public resources. After all, the Legislative Research Council exists to serve all citizen legislators, including the vast majority of us citizens who do not get per diems and cushy desks in the Capitol but who nonetheless constitutionally reserve to ourselves the right to legislate by initiative and referendum. Elected legislators can ask LRC for service at any time; all citizens deserve the same service.

    If there is a practical crunch on LRC staff availability to review citizen proposals, we should resolve that crunch in ways that do not further restrict the ability of citizens to exercise their constitutional rights. Instead of further delaying initiatives, I recommend the following practical solutions:

    1. Increase funding for LRC to hire more staff during Session and/or create a special division dedicated to initiatives and service for the general public.
    2. Move the deadline for submitting initiative petitions from November of the year before the election to July 1 of the year of the election. That gives petitioners eight more months to collect signatures, thus easing the time crunch for both LRC and petitioners.

    4. LRC to provide, in addition to style and form, guidance for “efficacy” of the ballot measure’s policy objective.

    LRC should provide the same service to all citizen legislators, be they elected or be they initiators. If this advice to elected legislators includes guidance on policy “efficacy,” then yes, by all means, provide that advice to initiative sponsors as well.

    5. Limit on number of ballot measures that may appear on a ballot.

    Bonk. We do not limit the number of bills legislators can propose. The Governor does not limit the number of bills the Legislature can send to his desk. The state does not limit the number of political parties or independent candidates who can access the ballot. If citizens want to vote on zero, five, ten, or a hundred measures, that’s citizens’ business. Limiting the number of measures on the ballot turns initiative and referendum into a race of the richest players to crowd the ballot and box out low-budget grassroots activists.

    6. Provide statutory authority for state Board of Elections to determine size of ballot.

    The Board of Elections already has statutory authority to determine the “form and color of ballots” [SDCL 12-1-9(2)]. If this proposal recognizes a need to accommodate more measures or more information about each measure, let’s consider it. But if this measure envisions restricting ballot space and thus ballot measures, forget it.

    7. Independent Citizen Review panels for ballot measures. 

    Rob Timm of the Chiesman Center for Democracy told the I&R Task Force about this idea in his testimony Wednesday among his recommendations for giving the public more unbiased information about ballot measures:

    • Holding numerous facilitated town hall discussions throughout the state to review one or more key ballot initiatives, or maybe just constitutional measures – allowing not only sponsors and opponents to provide arguments but also creating opportunities for the general public to ask questions.
    • Take this one step further, and implement a process that is used in Oregon, Arizona, Massachusetts, Colorado and California. These states utilize an independent Citizens Initiative Review® (https://healthydemocracy.org/cir/) that engages a randomly selected, demographically balanced “jury” of citizens who take testimony and then deliberate for 2-3 days, drafting a statement highlighting the most fact-based pro and con findings about a measure (usually a constitutional amendment). Which is then placed in the voter guide [Rob Timm, Chiesman Center for Democracy, testimony as prepared for Initiative and Referendum Task Force, 2017.06.22].

    Placing ballot measure sponsors and opponents on an equal footing in a formal public process designed to give all voters more information is a splendid idea. But as I cautioned Dana Ferguson, we need to make sure the process is impartial:

    Cory Allen Heidelberger, a progressive blogger and referendum and initiative sponsor, said he generally supported the idea of allowing more public input on the proposals, but warned that constraints would be needed to prevent abuse of the public hearings.

    “Garbage in, garbage out: the process is only going to be as good as the information put into it,” he said. “We need to make sure it’s not a slanted or manipulatable process” [Dana Ferguson, “Is There a Better Way to Educate Voters on Ballot Measures?that Sioux Falls paper, 2017.06.21].

    We also need to make sure that any citizen review/public hearing process does not further delay the petition process or otherwise restrict the ability of citizens to put measures to a vote. Finally, I hesitate to write into public policy anything with a registered trademark. But overall, engaging more citizens in the political process is good…

    …and that’s the principle that should guide the Initiative and Referendum Task Force’s review of existing ballot measure statutes as well as their premature rush to propose new laws. Of the above draft bill requests, #3, and #5 raise hurdles to participation. #1, #4, #7, and my counterproposals under #3, if implemented properly, invite more citizen participation.



  • Episode 016: Spencer and Joe Check out the Fearmongers!

    Hot off the Mac—it’s the latest Dakota Free Press Podcast! In Episode #16, friend of the blog Joe Berns joins co-host Spencer Dobson to sit in on Aberdeen’s latest fearfest, the June 16 anti-Muslim slideshow featuring “Understanding the Threat” book peddlers John Guandolo and Chris Gaubatz. Joe and Spencer survived with their logic and mortality intact!

    But first, Spencer and I talk about…

    • whether Randy Bryce has what Democrats need to win,
    • how campaign finance law in South Dakota remains far too friendly to big money,
    • what good the latest ruling against Trump and Dakota Access does, and
    • Cory’s field trip to Pierre to speak up for direct democracy!

    If you like what you hear, share this podcast through your network and donate through the Blog Tip Jar!

    Here are some resources for this week’s podcast topics:

    Randy Bryce for Congress in Wisconsin [2:20]:

    Campaign Finance—Senate Bill 54 vs. Initiated Measure 22 [9:15]:

    Dakota Access Pipeline Ruling [13:40]:

    Initiated and Referendum Task Force [18:40]:

    Spencer and Joe report on the anti-Muslim “Understanding the Threat” event [28:05]

    Again, if you’d like to support good podcasting, share with your friends and donate through the Blog Tip Jar!

    Hey! Want to take Spencer up on his suggestion to turn the next anti-Muslim sideshow into a great Rocky Horror Picture Show event? Give us a shout through the Dakota Free Press Contact form, and let’s see what we can come up with!

    p.s.: Here’s that view of the Capitol from LaFramboise Island that I mentioned in our opening:

    View of the Capitol during my midday run on La Framboise Island, Pierre, South Dakota, 2017.06.21.
    View of the Capitol during my midday run on La Framboise Island, Pierre, South Dakota, 2017.06.21.


  • Citizens, Lobbyists Speak to Initiative and Referendum Task Force

    Citizens awaiting public testimony before Initiative and Referendum Task Force, State Capitol, Pierre, SD, 2017.06.21.
    Citizens awaiting public testimony before Initiative and Referendum Task Force, State Capitol, Pierre, SD, 2017.06.21.

    What can we learn from yesterday’s public testimony before the Legislature’s Initiative and Referendum Task Force?

    1. Most interested parties think initiative and referendum is good the way it is.
    2. The parties who want to rein in I&R are mainly South Dakota’s business interests and Republican legislators.
    3. Dr. Emily Wanless is a good chairperson.
    4. Senator Jim Bolin is determined to keep regular citizens from intruding on his arrogant power.

    To illustrate, permit me to summarize the testimony offered by citizens and questions and comments from task force members yesterday in Pierre. The full three hours of audio is available via SDPB.

    *     *     *

    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.

    *     *     *

    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.

    Rob Timm and task force member Will Mortenson discuss the tension between big-money advertising and the need to inform the voters about ballot measures.
    Rob Timm and task force member Will Mortenson discuss the tension between big-money advertising and the need to inform the voters about ballot measures.

    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, marijuana deregulation petition sponsor
    John Dale, marijuana deregulation petition sponsor

    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).

    *     *     *

    Curt Pochardt fields a question from the task force.
    Curt Pochardt fields a question from the task force.

    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”

    Pochardt expressed concern about the new 95% confidence random sampling method for statewide petitions. He asked that petitioners whose petitions are rejected by one such sampling be given an opportunity to administratively appeal for a second sample to check for error.

    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 rejected proposed restrictions on the number of measures allowed on the ballot. He said that limiting citizens to five ballot measures could mean that initiative sponsors could suck up all five available ballot slots in 2017, thus making it impossible to refer any laws from the 2018 Session.

    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.

    *     *     *

    Voter Initiative Protection Amendment sponsor Roxanne Weber addresses the task force.
    Voter Initiative Protection Amendment sponsor Roxanne Weber addresses the task force.

    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.

    *     *     *
    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:

    1. 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.
    2. 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
    3. Only a very small number of voters—”less than a handful” appeared to vote only for candidates and skip the ballot measures. Hall observed those few voters who did not turn their ballots over and work on the back.

    People may not love to have a long ballot, said Hall, but the voters of South Dakota will do the work. She implored the task force, don’t take away voter rights.

    Senator Bolin asked Hall if it bothered her when she lived in Minnesota that she didn’t have input through initiative and referendum. Hall said back then she was not as involved in politics, since working for the Kochs meany working 80 hours a week. Bolin asked Hall if she had moved to Rapid City because of initiative and referendum. Hall said she returned to Rapid City because she is a proud graduate of the School of Mines.

    *     *     *
    John Schmidt of Woonsocket spoke, as he does to everyone in every venue, about Arctic methane release. At the end of his testimony, which Chair Wanless hastened, Schmidt expressed surprise that the members of the Initiative and Referendum Task Force had no questions about Arctic methane release.

    *     *     *

    David Owen and task force member Will Mortenson discuss ballot measures.
    David Owen and task force member Will Mortenson discuss the peril of dinking with ballot measures.

    David Owen, speaking for the South Dakota Chamber of Commerce and Industry, said his people are “more skeptical” about I&R and find it “annoying.”

    “We do have respect for the process” and South Dakota’s historical role in I&R, said Owen. The Chamber firmly believes that South Dakota voters take this seriously, and “We would dink with this at our peril.” Owen acknowledged that we don’t have a lot of voter fall-off and even see some higher votes for I&R than some constitutional offices.

    However, the Chamber is skeptical of the notion that tinkering with I&R is somehow a violation of the sacred will of the voters. Signatures on a petition don’t always represent voters’ will; half of those signers, said Owen, “just wanted to get their mail” or were willing to vote on something they disagree with.

    The Chamber’s irritation is that they know how elections run: “You’re not seeking to inform the public; you’re seeking to incite the people to vote your way.” He said we don’t let any crowd take away our rights by popular vote. Owen invoked lynching as an example, saying that’s 23 votes Yes on the ground, one vote No in the tree.

    For the apparent antipathy toward I&R, Owen put only two relatively benign proposals on the record. He said the Attorney General should have a public comment period on ballot measures (problematic in my mind only if it creates further delay in sponsors’ ability to hit the streets with petitions). Owen also said we “dearly need” a PAC-like structure that would allow a group to address multiple ballot questions and maintain continuity over time to tackle ballot measures from election to election. Such long-term ballot question committees used to be possible; Owen noted that we only recently outlawed ongoing ballot question committees (see 2016 HB 1036).

    Responding to a question from fellow lobbyist Mortenson, Owen personally warned the Legislature that any changes to I&R must be “defendable as the changes themselves. Where we will get in trouble is where we make changes that are really designed to inhibit this process without just admitting we want to make it harder.”

    Owen said the constitution deserves a higher threshold for amendments. He said he is “personally skeptical that 60% is too high.”

    *     *     *

    Shawn Lyons, speaking for the 4,000 members of the South Dakota Retailers Association, noted that his group was founded around the same time as initiative and referendum, in 1897, to advocate for small merchants. Lyons said the Retailers aren’t “special interests”; they are the businesses that collect the sales tax that funds this very process.

    Lyons seconded Lee’s call for “preventative maintenance.” The Retailers “do not oppose the initiative and referendum process,” but they note that I&R lack the opportunity for review and amendment that normal legislation gets as it passes through committees and the House and Senate. Lyons said voters are frustrated with that lack of input and amendment in ballot questions and said “legislative review” of initiatives “should not be out of the question. The Retailers support a public comment period on initiatives. Lyons agreed that democracy is messy but said that when we amend law and even more importantly our constitution, we should be looking at the far-reaching impacts of those changes.

    Lyons expressed support for geographical quotas, saying small communities and businesses should also “have a voice.” He said he’d like to see more petition gatherers in his neck of the woods in “Metro Reva.”

    *     *     *

    Rebecca Terk, representing Dakota Rural Action, spoke last. She said DRA, as an organization representing primarily rural South Dakotans, does not think that not having petitioners come to town denies rural folks a voice in I&R. Everyone has the opportunity to weigh in at the ballot box if an initiative or referendum receives enough support to get there.

    Terk sees no need to limit the number of measures on the ballot. Then on our ballot last year were not historically unusual, and multiple measures increase voter engagement and turnout. Terk said initiative and referendum are the people’s process. The Legislature should “tread very carefully” in changing the rules for I&R. “The greatest task of this committee,” said Terk, “is to preserve… and in some ways to regain the public trust when it comes to the protection of initiative and referendum.”

    *     *     *

    Dr. Emily Wanless gets kudos so far for fairly chairing yesterday’s meeting. Public testimony was scheduled to run from 9:10 to 11:00, with an hour of committee discussion to follow; Dr. Wanless allowed public testimony to run the full three hours and was generally liberal with time limits as long as speakers were on topic. Her few statements from the chair showed no agenda like Bolin’s and no brittle institutional defensiveness like Bolin’s and Otten’s. Dr. Wanless appeared interested only adding a fact or two and listening to the public.



  • Don’t Make Me Run for Governor: Ballot Measures Hard Enough!

    I joined sixteen other South Dakotans who testified to the Legislature’s Initiative and Referendum Task Force yesterday. You can hear my comments at 74:00 in the SDPB audio.

    My local paper edits Bob Mercer’s coverage to move my testimony up a few paragraphs but adds the odd identifier, “who ran unsuccessfully for Legislature as Democrat.” For a story on initiative and referendum, AAN could have more relevantly identified me with, “who sponsored two successful referendum petitions in the 2016 election cycle.” But that’s a minor editorial choice; let’s focus on what I said about our initiative and referendum process.

    I focused on disabusing the task force of the assumption on which Republican legislators predicated it, the claim that it is too easy to put initiatives and referenda on the ballot. Anyone who thinks ballot measures are easy either hasn’t circulated a ballot measure petition or has a billion dollars of mad money in his pocket.

    We impose some justifiable hurdles between citizens and the ballot. We don’t want any old wild idea ending up on the ballot, not without some nominal demonstration of public support. But we say the same about candidates: rather than letting individuals place unilaterally place themselves on the ballot, we expect them to solicit the support of some neighbors and pass the basic civics quiz of following petition rules. These hurdles are a reasonable response to the reasonable notion that some iconoclastic proposals and candidates could be so harmful, so “malicious” (the word Jay Davis used in testimony preceding mine) that they don’t even deserve a vote, let alone popular approval.

    But if ballot measures and candidates can both do harm, which can do more? To put it concretely, suppose I want to change South Dakota. How do I have a greater impact (or, from my opponents’ perspective, do more damage): by creating or changing one law with a ballot measure, or by becoming Governor?

    “Governor Cory Heidelberger,” I proposed to the committee. The laughter in the room suggested my point was taken. So does the focus of the political establishment: political parties and PACs work much harder to win the Governor’s office and other elected positions than they do to win ballot measures.

    So if we erect barriers to the ballot to prevent bad things from going to a vote, we would expect to see higher barriers to higher risks. Yet in South Dakota, the barriers to bad ballot measures are far higher than the barriers to bad candidates. If I want to run for Governor, I need to collect about 700 signatures. I could do that on a busy weekend with some volunteers in a weekend in Aberdeen.

    If I want to put a new law on the ballot, I need to collect about 14,000 signatures. If I want to put a constitutional amendment to a vote, I need about 28,000 signatures. Just by signature count, it is 20 to 40 times harder to put a bad idea on the ballot than to put a bad candidate on the ballot.

    But ballot measures face even more barriers than inordinately large signature counts. If I run for Governor, I can take out my petition on January 1 and start collecting signatures immediately. If I decide to float a ballot measure, I have to wait up to 75 days to start circulating my petition while it undergoes review by two state government offices. The Legislative Research Council gets 15 days to analyze and provide feedback on my ballot measure. Then the Attorney General gets 60 days to study and compose a a public explanation of my measure. Only after those two reviews can I take my proposal to the people.

    Even then, when I circulate my petition, I have to give every potential signer a copy of the Attorney General’s explanation. Imagine if we made a similar demand of candidates: “Hi, I’m Democrat Cory Heidelberger, and I’m running for Governor, but before you sign my petition, here’s what Republican Attorney General Marty Jackley, who also happens to be running for Governor, thinks of my qualifications and political agenda.”

    My contention is not that we should subject candidates to background checks by an elected rival or that we should increase the number of signatures candidates have to get. My contention is that, relative to the reasonable requirements placed on candidates to make the ballot, we have already imposed more than enough burdens on ballot measure sponsors to win access to the ballot. The Legislature should leave initiative and referendum alone and let the voters evaluate ballot measures for themselves.

    Related Comedy: Following my testimony, Mark Lee, my old Lake Herman neighbor testifying on behalf of the Sioux Falls Chamber of Commerce, urged the committee “based on very recent testimony and a newly developed deep and abiding fear that I would encourage you to raise the number of signatures required to run for Governor… significantly.” We all laughed.



  • Podcast #15: Roxanne Weber, Beef for Chicken, Another Nonmeandered Meander, and More!

    Roxanne Weber speaks with Dakota Free Press, June 2017.
    Roxanne Weber speaks with Dakota Free Press, June 2017.

    The latest Dakota Free Press Podcast is ready for your earbuds! In Episode #15, we talk Pierre political activist Roxanne Weber, organizer of protests, a ballot measure, and a couple of fall forums to promote civil discourse.

    But first, co-host Spencer Dobson and I talk about how the richer and poorer perceive their sickness and health (and how the ACA is helping and Trumpublicans are not), the great China–U.S. chicken for beef trade (I think the Chinese are getting the better deal), the Aberdeen library’s effort to help new Americans, and, so we can practice our new favorite word, the big nonmeandered waters bill passed by the Legislature on Monday.

    If you like what you hear, share with your friends and donate through the Blog Tip Jar!

    Here are this week’s notes and links to our topics:

    Health Care Perceptions and the Rich/Poor Gap [1:20]:

    China Buys Our Beef, We Buy Their Chicken [6:45]:

    New Aberdeen Library Helping New Americans [12:30]:

    Legislature Sort of Resolves Nonmeandered Waters Conflict [16:10]:

    Interview: Roxanne Weber [28:35]:

    See why we say Guten tag! by reading Spencer’s chat with Porter in last week’s podcast comment section.  Then show your love by contributing via the Dakota Free Press Blog Tip Jar!



  • Legislative Initiative & Referendum Panel Takes Public Testimony June 21

    The Legislature’s Initiative and Referendum Task Force will meet for two days week after next. Friends of democracy, clear your calendars for Day Two.

    On the first day, Tuesday, June 20, the panel of legislators, election officials, and other appointees (but no independent advocates of the initiative and referendum process) will meet to listen to their chosen experts and each other first. Only on the second day, Wednesday, June 21, at 9:10 a.m., will they turn to the public and say, “Gee, citizens, who actually use initiative and referendum to check the power of us legislators, what changes do you think we legislators should make to the process?”

    Rev. Robert Haire, father of initiative and referendum.
    Rev. Robert Haire, father of initiative and referendum.

    I’ll tell you what changes the Legislature should make: none. Keep your hands off the people’s legislative process. You’ve done enough damage, and some of you (Rep. Don Haggar, Sen. Jim Bolin, Sen. Ernie Otten, all on this task force) want to do more. Initiative and referendum, Father Robert Haire‘s gift to democracy, need more protection from your Legislative meddling. If you can bear it in your grasping arrogance, leave initiative and referendum alone, and let the people come up with their own solutions…

    …like the Voter Initiative Protection Amendment, which Attorney General Marty Jackley slid off his desk yesterday with his official explanation, a full three weeks sooner than the law required him to complete his analysis. (Thanks, Marty!) The sponsors are getting petitions ready for circulation this month and could well have them ready for people to sign at the June 20–21 hearings in Pierre.

    To review, the VIP Amendment would strengthen voter power through initiative and referendum process by adding these provisions to our state constitution:

    1. Allow citizens to refer any law, except for the general appropriations bill.
    2. Allow citizens to refer laws enacted with an emergency clause, but leave those laws in effect until voters get to vote on them.
    3. Require a two-thirds vote of both chambers of the Legislature to amend or repeal any voter-approved law for seven years after enactment.
    4. Clarify that if conflicting ballot measures pass, the measure with the higher vote total takes precedence.
    5. Set the enactment date for approved ballot questions at 30 days after the election.
    6. Prohibit the Legislature from changing the number of voters who must sign petitions to get measures on the ballot, the time available for circulating petitions, or the vote totals required to pass ballot measures.
    7. Prohibit the Legislature from requiring more than 10% of qualified electors to sign petitions to place constitutional amendments on the ballot.

    Those are the changes we should make to the initiative and referendum process. I can think of more, but they all move toward more power for the voters and less power for the Legislature… which is the kind of transfer of power back to the people that I thought we were promised—lo! those many months ago—on a rainy January day by a President that 61.5% of South Dakotans voted for.

    Legislators, just sit back and chill. Let the voters do the talking.

    The interim I&R committee takes public testimony on Wednesday, June 21, from 9:10 a.m. to 11:00 a.m., in Room 413 of the Capitol in Pierre.



  • 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!