Sioux Falls Chamber Misses Key Points of Referred Law 19

Friend of the blog David Bergan notes that the Sioux Falls Area Chamber of Commerce has posted issue briefs on all ten statewide ballot questions. (Actually, there are only nine briefs, since the Chamber sensibly handles Initiated Measure 21 and Amendment U, the competing payday-lending measures, in one brief).

The Sioux Falls Chamber offers proponent and opponent rationales and even takes positions on some of the measures. But on Referred Law 19, the Incumbent Protection Act, the Chamber weaves proponent rationale into the brief without offering opponent rationale. The Chamber also ignores one of the major drawbacks of a drawback-filled bill. As RL 19’s primary opponent, I feel obliged to fill in the Chamber’s gaps.

The Chamber properly reports that RL 19, originally 2015 Senate Bill 69, moves the period for candidates to circulate petitions up a month, requires independent candidates to collect signatures only from fellow independents (or, technically, voters not registered with any recognized party), rejects petitions sent by registered mail before the petition deadline but received after the deadline, and restricts the use of the placeholder-replacement provision. The Chamber explains the rationale for these provisions, but it does not explain why opponents blocked this law by putting it to a vote.

The Chamber says RL 19’s supporters made the petition circulation period earlier and eliminated late registered-mail receipt to “help[] accelerate the schedule to facilitate more timely review of petitions.” The Chamber does not point out the downsides:

• Candidates lose the longer, warmer days of March to circulate their petitions.
• In return, candidates get the shorter, colder days of December to circulate, during which time they’ll find people too busy with holiday shopping and parties to bother with petitions.
• The new petition deadline forces candidates to decide to run before the Legislature finishes its Session. The successes and failures of each Session influence many candidates’ decisions.
• Removing the mail option means more candidates will have to drive to Pierre to file their petitions. That drive may be foiled by weather, accidents, and other unexpected events.

All of these downsides deter candidates from filing for office, meaning voters will have fewer choices on their ballot and fewer chances to hold incumbents accountable.

The Chamber fails to offer either proponent or opponent rationale for RL 19’s restriction on who can sign independent candidates’ petitions. That may be because the only rationale for the Republicans’ insertion of this change into RL 19 is to prevent Larry Pressler or any other strong independent from making the ballot, and that rationale casts the Chamber’s Republican friends in an ugly, vituperative light. The Chamber does not mention the practical impact of such a restriction: independents don’t make the ballot. Louisiana enacted such a provision in 1918, and for thirty years, no independents made the statewide ballot. That mathematical barrier to ballot access was so insurmountable that in 1999, a federal court ruled a similar provision in Arizona unconstitutional. The fact that the independent-signature restriction will fail court scrutiny seems a vital and objective point to make in a comprehensive brief on Referred Law 19.

Yet the Chamber fails comprehensivity by ignoring one of the major provisions of Referred Law 19, an issue affecting far more candidates than either the independent signature restriction or the registered-mail restriction. RL 19 changes the number of signatures party candidates must gather from 1% of their last gubernatorial candidate’s vote tally in their jurisdiction to 1% of the voters registered with their party during that last general election in their jurisdiction. The number of voters registered with a party will almost always be larger than the number of votes their candidate for governor receives. Thus, using the most recent relevant numbers, RL 19 would require Republican candidates to collect 23% more signatures and Democratic candidates to collect 150% more signatures. That increased barrier to the ballot affects almost everyone running for office in South Dakota and deserves some mention in any discussion of RL 19.

The Sioux Falls Chamber’s brief on Referred Law 19 isn’t all bad. The Chamber made a game effort to explain a complicated, wonky bill dealing with the arcane provisions of petition and election law. But the Chamber missed the main point of Referred Law 19: more signatures, petitioning in December instead of March, taking away most voters’ right to sign for independents, and the other changes of RL 19 all add up to fewer candidates making the ballot, fewer incumbents held accountable by challengers, and fewer choices for voters at the polls.