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Board of Elections Responds to SB 69 Referral, Errs in Ballot Question Committee Termination Proposal

When South Dakotans successfully suspended Senate Bill 69 last summer and put it to a vote in 2016 as Referred Law 19, they created a kink in the election calendar. Another measure, Senate Bill 67, set the deadline for challenging nominating petitions as the third Tuesday in March. That deadline depended on SB 69’s petition submission deadline of the first Tuesday in March. Our successful referal of SB 69 means the petition submission deadline remains the last Tuesday in March, which means that SB 67, now SDCL 12-1-3, makes it impossible to challenge 2016 petitions submitted between March 16 and March 29.

Governor Dennis Daugaard could have avoided this problem by vetoing both bills. He chose not to listen to me.

Secretary of State Shantel Krebs is listening. As Bob Mercer points out, Secretary Krebs and the Board of Elections are proposing that the Legislature repeal the challenge deadline set by SB 67. That’s a simple, positive step for the Legislature to take; let’s hope that Senator Ernie Otten (R-6/Tea) and the other Republicans who tried to make mischief with SB 69 this year don’t view this sensible repeal as a hoghouse vehicle to resurrect the anti-democratic ideas that South Dakota voters froze this summer.

That’s just one (#7) out of seventeen proposals that the Board of Elections drafted Monday. The board is also resurrecting one of SB 69’s provisions. Repeating the language of Section 22 of SB 69, Proposal #6 innocuously defines “Independent,” which apparently has slipped by undefined in South Dakota election law for 126 years. “Independent (IND)” and “no party affiliation (NPA)” will apply synonymously to “any voter who writes Independent, I, Ind, the field is blank, no party affiliation, no party, no choice, nonpartisan, or line crossed off in the Choice of Party field on the voter registration form.” Proposal #6 also clarifies that an “independent candidate” must not be “registered as a member of a recognized political party.”

Proposal #11 would strike SDCL 12-18-41, which allows the Secretary of State to conduct a local election when the local election chief and governing board declare that an emergency exists and the election cannot be conducted. The Legislature passed this law in 2011. Whether this change affects anything in practice is hard to say: local officials still must have the authority to declare that it’s too snowy to ask everyone to come to the polls, and the Secretary must still have the authority and obligation to help local districts conduct their elections.

Proposal #12 eliminates the requirement that individuals forming a political committee include the name of their committee’s bank on their statement of organization. I’d have found that helpful back in March when I filed the paperwork to start the referendum drives against SB 69 and against SB 177, the youth minimum wage. I didn’t even have money for those petition drives, let alone a bank account in which to put it.

However, Proposal #13 adds some paperwork for ballot question committees. The Board of Elections would require termination reports be filed by the first Monday in February (in the even year if the committee fails to get its measure on the ballot; in the odd year, right after the election, if they do make the ballot). This proposal is unusual—no other political committee is required to pull its own plug. It is also problematic: the proposal assumes that ballot question committees will have completed all of their business by that February deadline. A ballot question committee may still be taking donations to pay off debts three months after the election. Current statute on termination statements (SDCL 12-27-25, which would conflict with the change Proposal #13 would make to SDCL 12-27-22) recognizes this possibility and does not require committees to file termination statements until “thirty days following disposition of all funds and property and the payment of all obligations.”

Proposal #13 also fails to recognize the possibility that a ballot question committee might want to take another shot at a ballot measure in the next election. Suppose South Dakotans Against Prohibition fails to place its marijuana decriminalization initiative on the 2016 ballot. Or suppose New Approach South Dakota places its medical marijuana initiative on the 2016 ballot but fails to win the vote. Both organizations might want to try again in 2018. Why require them to terminate and re-register?

Likewise my own ballot question committees. Suppose South Dakotans for Fair Elections successfully defeats Referred Law 19 and SD VOICE successfully defeats Referred Law 20. I suspect hard-headed Senators Otten and David Novstrup (R-3/Aberdeen), if they survive the 2016 election, will pass more anti-voter and anti-worker bills. Maybe I need to keep those two ballot question committees as vehicles for the 2018 campaign against Otten’s and Novstrup’s next follies. I already have checking accounts for both of those committees; I might find it as practical to keep my ballot question committees open as Dennis Daugaard does to keep his campaign committee on the books, even though his people have said 2014 was his last election. (And believe me, after the weeks it took to get Wells Fargo to create those checking accounts, I don’t want to have to go through that process again if I don’t have to!)

None of the Board of Elections’ proposals are as momentous as the petition reforms they proposed last year. None do the damage that the Legislature’s perversions of their Senate Bill 69 would have wrought. Proposal #7, repealing SB 67, makes sense and should happen right away. Proposal #13, Requiring ballot question committees to terminate, is an unlucky idea that conflicts with existing statute and unduly crimps the work of initiative and referendum advocates.


  1. Shirley Harrington-Moore 2015-10-25 09:01

    Change banks, Cory. Dacotah Bank is much more user friendly.

  2. Lanny V Stricherz 2015-10-25 09:59

    I am confused, Cory. Some of the publicity that I have seen about the petitions for the ballot initiatives and referendums that are being circulated, states that the petition affidavits have to be completed by the end of this month in order to make it on the ballot in Nov 2016. Why would there be such an early deadline?

  3. Donald Pay 2015-10-25 10:04

    Proposal #13 is unrealistic in that it doesn’t comport with how much of this work gets done. Further, premature forced termination could cripple a ballot committee’s ability to defend in court an initiative that passes, or bring suit on some election irregularity.

    Groups in the 1980s and 1990s were set up as 501 (c) (4) non-profits around certain issues (nuclear waste, surface mining, large-scale solid waste facilities). These efforts were multi-pronged, involving public education, leadership development, community organizing, public interest research, lobbying at national, state and local levels and, when necessary, ballot measures at the local and state level. At times the organization might have two initiative efforts, both at the state level or one at a local level and one at a state level. While a group might be named, for example, Surface Mining Initiative Fund, it had a far broader reach than bringing an initiative. In fact that group recognized its broader reach, and renamed itself ACTion for the Environment.

    Regarding the Lonetree issue, there were a two ballot questions and a half dozen court cases that had to be addressed over, it turned out, a decade. And there was always the possibility during that time that a third ballot measure would have to be undertaken.

    I appreciate the need to put some finality on the ballot committees, however. Having a committee potentially collecting and spending money when the question has been long determined seems to be an invitation to fraud by some folks who want to make a business out of collecting signatures and running fraudulent ballot questions.

    What is the proper approach? I don’t know, but it needs more thought and discussion.

  4. Kurt Evans 2015-10-25 15:52

    Cory wrote:
    >“Governor Dennis Daugaard could have avoided this problem by vetoing both bills. He chose not to listen to me.”

    My reasoning apparently didn’t persuade him either:

    >“Proposal #6 also clarifies that an ‘independent candidate’ must not be ‘registered as a member of recognized political party.’”

    I’m not sure why some Republicans believe they have the moral right to deprive every South Dakotan who registers with a party affiliation of the freedom to run an independent campaign. It’s bad enough that our tax dollars finance the party primaries. The general election ought to stand above partisan restrictions in the eyes of the law.

    I’m also not sure why some Republicans believe they have the moral right to make independent candidates file their nominating petitions by an utterly arbitrary deadline well before the nominees of the recognized parties have to be finalized and long before the general election ballots need to be prepared.

    These restrictions seem obviously wrong to me, and sometimes it’s hard to understand why they don’t seem obviously wrong to others.

  5. caheidelberger Post author | 2015-10-26 08:28

    Lanny, what you’ve heard is essentially correct. We must submit initiative petitions one full year before Election Day. Election Day 2016 is November 8; our initiative submission deadline this year is November 9, since the 8th is a Sunday.

    Why so early? A neutral read would say that we can use that full year between submission and election to check the petitions for irregularities, study the issues, identify any fatal errors in wording, and educate the voters. But almost no other state thinks we need a whole year to do those things. Massachusetts appears to be the only other initiative state that requires petitions be submitted the year before the election. Colorado and North Dakota allow initiators to submit their petitions in early August, just three months before the general election.

    The cynical read would be that the Legislature, which can’t completely outlaw our constitutional right to initiate laws, wants to make the process as hard as possible. Making us circulate a whole year ahead of time means we have to work that much harder during the election year to remind people of the issues. It also allows the Legislature an entire session during which they can complicate or sabotage any proposed initiatives with legislation of their own. And it allows government and corporate opponents far more time to mobilize resources against grassroots measures.

  6. Curt 2015-10-26 08:44

    … a minor correction – the paragraph re: Proposal #12 refers to the youth minimum wage legislation passed in the 2015 Session as SB 67. I think it was actually SB 177.

  7. caheidelberger Post author | 2015-10-26 09:30

    Done! Thanks for that correction, Curt. I apologize for the confusion. These numbers become a swirl… which should be a lesson for all of us campaigning for various ballot measures: don’t talk in number jargon and bill numbers; keep things clear and concrete.

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