Last updated on 2016-10-05
The South Dakota Legislature is less fond of ochlocracy (like I said, Word of the Day! Scream real loud!) than our U.S. Senators. They didn’t do as much damage to the initiative and referendum process as I feared our outbreak of two citizen referenda and seven initiated measures might have provoked from our democracy-fearing Republican Legislature, but they did pass Senate Bill 91.
Sponsors of initiated measures are already required to provide every signer with a form giving the title and the Attorney General’s explanation of their measures. The original version of Senate Bill 91 would have required the inclusion of the “name, phone number, and email address of each petition sponsor; and a statement whether the petition circulator is a volunteer or paid petition circulator.” I was o.k. with that change and even suggested that legislators add some more accountability for circulators along with sponsors.
That they did: Senate State Affairs added a requirement that the form include the amount that the circulator is being paid. Senate State Affairs also brought referred laws into the form requirement. Last year when my friends and I petitioned Referred Laws 19 and 20 onto the ballot, we didn’t have to provide signers with any form (although we diligently explained the measures we were referring, and I happily gave signers my contact information so they could follow up with questions). Now Senate Bill 91 will require referendum petitioners to provide a form with the title of the bill they want placed on the ballot and the same sponsor and circulator information as initiators must provide.
Interestingly, legislators did not include their own nominating petitions or those of any other candidate in this requirement for disclosure of paid circulators. Even statewide candidates need far fewer signatures than ballot measures and thus are unlikely to hire circulators, but if voters should know whether a circulator is being paid to push an issue, do voters not have a similar interest in knowing whether a circulator is being paid to push a candidate?
Costs go up for referendum organizers: printing 20,000 half-sheets to comply with the new requirement would cost about $300 plus chopping at the UPS Store. For initiators who are already printing sheets like this, the added cost is zero at the print shop. The only tricky part is the pay.
Blog neighbor Ken Santema points out a complication that SB 91’s sponsors perhaps did not think through:
…The problem is the amount being paid can often change as the deadline for a petition approaches. Actually the pay can change not only by the day, but by the hour as deadlines approach.
As it is now this bill is just an unnecessary nightmare. This is just adding too much to the petition. The addition of how much a petition circulator is paid will create a unique nightmare because that is not always static information [Ken Santema, “20 More Bills Announced Signed into Law by Governor Daugaard on Mon Mar 14,” SoDakLiberty, 2016.03.15].
I initially thought that including the paid circulator’s wage on the form wouldn’t be a problem: just have the paid circulator write his or her pay on each form. That takes half a second while the voters sign the petition.
But SB 91 keeps the language stating, “The form shall be approved by the secretary of state prior to circulation.” As Santema notes, pay rates could change. Last year, petition sponsors started their circulators at $15 an hour. By October, as the circulator field got crowded and the submission deadline approached, some circulators were getting $25 an hour or more. Different circulators also received a variety of performance bonuses. If pay or benefits change, SB 91 will require sponsors to first submit their updated pay/benefits descriptions to the Secretary of State for approval, creating a new delay at a crucial time that could seriously hamper the circulation process.
Of course, some of us watchdogs found that the Secretary of State, local police, and the Attorney General weren’t sending anyone out to monitor circulators’ compliance with the current forms requirement, so how are we to know that the conscientious, grassroots South Dakota activists who will follow the law won’t be needlessly hampering their own efforts while the unscrupulous mercenary circulators who infested our sidewalks last year are flouting the law?
I appreciate the intention of Senate Bill 91 to rein in the out-of-state companies that treat our petition process as a profit center. But in its final enacted form, SB 91 seems not to address the complications raised for legitimate petition sponsors responding to market forces as they pay their circulators for their efforts. SB 91 also does not address enforcement.
Just barely on the good side, SB 91 was the least harm the Legislature could have done to the petition process. The Legislature rejected HB 1241, Rep. Jim Bolin’s effort to stymie initiated and referred laws by requiring petitioners to get at least half of their signatures somewhere other than the five most populous counties of the state.
The Legislature even helped the candidate petition process by passing HB 1033, which erased the new third Tuesday of March deadline for challenging petitions passed in last year’s SB 67. That deadline complemented last year’s SB 69 attempt to move the petition submission deadline to the first Tuesday of March; when we referred and suspended SB 69, we made SB 67 absurd. Nicely, HB 1033 kept the language requiring the circuit court to expedite candidate petition challenges.
Sounds like another form of voter suppression–making it more difficult to get measures on the ballot so voters can vote for or against them. I don’t like the idea of paid circulators, but I’d be more concerned about confusing and suppressing and making petitioning and informing voters more difficult.
That’s the awkward tension here, Caz. The payday lenders spent $1.7 million to hire circulators and appear to have bought cover for illegal out-of-state circulators who really gave the process a black eye. Worse, the payday lenders engaged in this effort to confuse voters and thwart the true will of the voters. But I’m not convinced that SB 91 would have done anything to stop the payday lenders from carrying out their anti-voter plan last year. We may have to accept a wide-open petition process and trust in the responsibility of South Dakota activists, journalists, and law enforcement to monitor the process and make sure existing rules are followed.
That said, the worst thing this requirement does is make it harder for petition companies and sponsors to change the pay they offer their circulators at the last minute. Perhaps we can even get the Secretary to accept a compromise paid circulator sheet: maybe she will approve a form with a blank for pay, but insist that if any evidence arises that those sheets are handed out without the pay filled in, she’ll send the Attorney General after the sponsors. But even there, the question is, what’s the penalty?
South Dakota was the first state to give the voters a stake in the legislative process with the initiated measure which makes it especially sad that one political party is trying so hard to destroy it.
Offer bonuses. They are not pay, so don’t have to be listed, but can be given for meeting quotas or staying to the last day.