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Fair-Share Union Dues Make Ballot as Initiated Measure 23 with 52% Petition Error Rate

*Correction! Turns out the dozer drivers lived up to my expectations! The Secretary of State’s submitted-signature count was highly inflated by the office’s counting methodology, which includes numerous blank lines that the Local 49 circulators did not count in their estimate of 20,000 submitted signatures. Click here for all the yummy technical details!

I expect better work from heavy equipment operators.* The International Union of Operating Engineers Local 49 has gotten its fair-share union dues initiative on the 2016 ballot, but just barely. Secretary of State Shantel Krebs announced this morning that of 30,810 signatures submitted, her random 5% sample was able to validate only 48.23%. The fair-share petition’s error rate of 51.77% is far worse than the previous champ for bad circulating in 2015, the Jason Glodt amendment, whose “professional” circulators turned in a risible 36% error rate. The fair-share petitioners collected more bogus signatures than valid ones.* Uff da!

Those calculated 14,861 valid signatures are a mere 990 signatures more than the 13,871 minimum for placing an initiated law on the ballot. That 7.14% signature cushion could still withstand scrutiny (recall that no one rose up to challenge Referred Law 19 petition, which eked onto the ballot with a mere 2.2% cushion), but the high error rate could encourage challenges from Republicans who might be more keenly interested in beating back a pro-labor measure like Initiated Measure 23 than they were in trying to defend the complicated and far less hot-button petition reform bill that we tackled in putting Referred Law 19 on the ballot.

Of course, the United States Supreme Court could render Initiated Measure 23 moot before we even see the first campaign poster. Last week the Supreme Court heard Friedrichs v. California Teachers Union, which addresses the core matter in IM 23, whether unions can require non-members to pay dues for collective bargaining activities that serve all employees. The general analysis in the press is that the Court’s conservatives will prevail in overturning precedent and declaring fair-share dues forced political speech, at least in public-sector unions.

Just 4.9% of South Dakota workers were union members in 2014. 6.0% of South Dakota workers were represented by unions. Public-sector employees appear to make up more than half of South Dakota’s union membership. An unfavorable ruling in Friedrichs would thus knock a lot of teeth out of Initiated Measure 23.


  1. Michael Wyland 2016-01-19

    Interesting wording on the proposed statute. Read independently, it implies that any for-profit or nonprofit can charge for services rendered without the existence of a contract, much less the consent, of the person or entity being charged.

    Nothing in the language limits the nonconsentual/noncontractual fees to union membership, employment, or any other activity or relationship.

    I agree, based on press reports of recently heard oral arguments, that the US Supreme Court appears ready to require consent by employees to collect union dues for all purposes (current laws restrict required consent to fees associated with political activity). However, the SD proposal as written would appear to affect all types of services and transactions, not just employment and labor unions.

  2. caheidelberger Post author | 2016-01-19

    Petition sponsor Scott Niles of Newell offers this comment in his organization’s press release: “When passed in November, Initiated Measure 23 will ensure that all South Dakota businesses and nonprofit organizations are protected from government intrusion and can fairly charge for services they provide.”

    Michael W., I’m intrigued by your reading of the language here. Could I start shoveling my neighbors’ sidewalks and driveways and then demand to be paid? Would courts uphold such an outcome? Are there any other statutes or common law understandings about consent that would negate that conclusion?

  3. Michael Wyland 2016-01-19


    Good question. The phrase “Notwithstanding any other provisions of law,” would imply the answer to your first question is “yes.” As to your second and third questions, I would certainly hope the answers are “no” and “yes”, in that order. I’m not an attorney, and I’d never presume to predict the decisions of a court.

    The initiated measure language makes no specific mention of government (as referenced in your quote from Scott Niles’s press release). I’m not sure where the prohibition against government action comes in, unless it is assumed that it is included by inference as being among those prohibited from stopping “any organization” from charging for services rendered.

  4. caheidelberger Post author | 2016-01-19

    Michael, the problem with Niles’s press release is that they are talking in code. The government intrusion to which he obliquely refers is our “right-to-work” laws. IM 23 seeks to undo our anti-union statutes and strengthen our unions. The supporters of IM 23 need not hesitate to say that, because their opponents in the Republican Party, Chamber of Commerce, ALEC, and AFP will certainly point that out. They need to fight that up front and say, “Yup, we’re strengthening unions, because that’s what the middle class and the economy need.”

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