Last updated on 2017-07-25
The Legislature’s interm task force on initiative and referendum convenes again tomorrow (Wednesday) at 10 a.m. Central in Pierre. At the same time, Donald Trump’s fake election fraud commission holds its first meeting in Washington D.C. Both meetings will be streamed online (SD I&R task force on SDPB; Trump/Kobach commission via White House Live). Election nerds like me will need two sets of headphones….
The I&R task force now has eleven draft bills on its desk. When I reviewed the first seven several days ago, I found only two that don’t directly reduce the people’s power to initiative and refer laws. The four that have since popped into the hopper aren’t quite as generally inimical to direct democracy.
Bill Draft #7 is my absolute favorite initiative reform yet. It would change the due date for initiative petitions from one year before the general election to June 30 of the election year. If I only got one bill on I&R passed in 2018, this would be the bill. A June 30 election-year due date for initiative petitions rocks for numerous reasons:
- It gives citizens nearly eight more months to collect signatures for initiative petitions.
- It allows initiators an opportunity to place on the ballot an issue that the election-year Legislature fails to act on. (Yes, that’s a narrow window, but it’s doable.)
- It allows initiators to promote their petitions during the election year, making it easier (i.e., cheaper!) for them to advertise and get their issue into voters’ top-of-mind awareness.
- More time to collect signatures means less need to hire petition circulators, meaning more opportunity for genuine grassroots, low-budget campaigners to get their measures on the ballot.
There are two hitches in Bill Draft #7. First, it applies only to initiated laws, not constitutional amendments. Constitutional amendment petitions require twice as many signatures as initiated law petitions, so it wouldn’t make sense to leave amendment backers with less time to collect signatures than initiated law backers. Let’s expand Bill Draft #7 to amend SDCL 2-1-1.1 to set the same later date for initiated constitutional amendments.
The second complication is that June 30 for initiative petitions would differ slightly, in most years, from the deadline for referred measures, which is 90 days after the Legislature adjourns. That deadline usually falls in the last week of June but not on June 30 exactly. The differing dates could cause minor confusion; just to keep things neat, I would suggest expanding Bill Draft #7 to amend SDCL 2-1-3.1 to change the referendum petition due date to June 30 as well or changing the due date for initiatives to 90 days after the Legislature adjourns in an election year. (“June 30” is easier to explain—go with the fixed date!)
Bill Drafts #8 and #9 don’t mess with petitioning (thank you!), but they do mess with passage of constitutional amendments. Currently, South Dakota Constitution Article 23 Section 3 requires a simple majority vote to pass an amendment. Bill Draft #8, lifted from part of Senator Jim Bolin’s 2017 Senate Joint Resolution 2*, would require “at least sixty percent” of votes cast at the general election to pass an amendment. Bill Draft #9 would set that passage threshold at “fifty-five percent.” Requiring more votes to change the constitution than to change the law has precedent in other states and may be reasonable; however, it would make it harder for citizens to make changes.
Bill Draft #10 is a one-off proposal to correct a quirk in a new law on the initiative process. This year the Legislature passed a law (SDCL 2-9-30) requiring the Legislative Research Council to issue fiscal impact statements—not just prison/cost statements, but any revenues, expenditures, or liabilities that an initiative could trigger for state or local governments—for all initiated measures. But that law didn’t take effect until July 1, and the LRC said that it does not apply to initiators who started circulating their petitions prior to July 1. Bill Draft #10 fixes that gap by retroactively applying the fiscal impact statements to the six initiative petitions that were certified for circulation before July 1. As long as the 2018 Legislature doesn’t try to amend this measure to somehow invalidate any petitions that started circulating before July 1 this year, Bill Draft #10 doesn’t really pose a threat to these measures or the initiative process. Heck, the petitioners seeking to decriminalize and tax marijuana might be thrilled to have LRC issue a fiscal impact statement saying their measure would generate $19.6 million in new revenue for the state.
Bill Draft #7 gives citizens more time to circulate petitions. That’s good.
Bill Draft #10 gives voters more information about a few measures that may make the 2018 ballot. That’s fine.
Bill Drafts #8 and #9 would make it harder to amend the state constitution. That’s debatable.
None of these newly posted measures are direct attacks on the initiative and referendum process like five of the first seven bill drafts released.
Wednesday morning, we’ll hear what legislators and other I&R task force members think of these proposals. And in the afternoon, from 1:15 to 3:15, we’ll hear what regular citizens have to say about them during the public comment period. If you didn’t make the June meetings, consider heading to Pierre tomorrow afternoon to tell the task force what you think of initiative and referendum and the task force’s efforts to fiddle with that sacred process.
*Update/Correction 2017.07.25 08:07 CDT: SJR 2 would have raised the threshold of passage at the general election from simple majority to 60%. SJR 2 also would have raised the threshold required for the Legislature to put an amendment to a public vote from a simple majority to two thirds of each chamber. My original article omitted the latter element of SJR 2. I regret that omission!
Draft #7 takes a giant step away from the idiocy that infects current law regarding initiatives. It’s not a complete disavowal of the last 17 years of lunacy, but it takes deadlines back to when grassroots South Dakotans could actually use the initiative without paid circulators, a bevy of attorneys and some billionaire sugar daddy to fund what was supposed to be “the people’s legislative process.” This draft will be opposed by the corrupt state power structure, so good luck getting it through the Legislature. You may have to initiate it to get it done. And I’d use that initiative to take a blow torch to the ridiculous bureaucratization of the initiative process that has been added in the last 17 years.
The history of why deadlines changed during the 1980s is interesting.
Prior to the mid-1980s, there were no deadlines for submittal, other than the petitions had to be turned in and certified before the end of the legislative session. That was because at that time a Joint Resolution passed by the Legislature was required to place the initiative on the ballot. Our Nuclear Waste Vote Initiative petitions in 1984 were turned into the SOS sometime in mid-session, if I recall correctly. I recall the Nuclear Freeze Initiative petitions collected the same year was turned in about the same time. Both went through the petition check and were up for a Joint Resolution toward the end of the 1984 Legislature. Court cases had established that the JR was a mandatory administrative process. Technically, the Legislature could have enacted the initiative into law, in the alternative, and escaped putting the measures up for a vote, but I don’t think that ever happened in the history of SD or any other state with an initiative process. What courts had established was that the Legislature could not turn down a JR that was the result of a certified initiative petition.
What happened in 1984 would spur subsequent changes. Homer Harding was the Republican Majority leader in the Senate. He loved all things nuclear. He hated the Nuclear Waste Vote Initiative and the Nuclear Freeze Initiative, and seethed at the thought that he had to vote for a JR to put these measures on the ballot. There were rumors that for the first time in SD history the Legislature would refuse to vote for the JRs, and a constitutional crisis would occur. Cooler heads prevailed. It may have been Janklow or Joe Barnett who talked some sense in Harding, the JRs were passed, and both measures were placed on the ballot.
But the whole thing stuck in Harding’s craw, and the thought that a Legislature might refuse to place a certified initiative onto the ballot through a JR scared the bejesus out of citizens. A year or two later, Harding proposed reforming the process to take the Legislature totally out of the process of placing initiatives on the ballot through Joint Resolutions. Despite some trepidation that legal precedents might not apply anymore, most citizen groups went along with the change. The SOS would certify initiatives to the ballot upon finding of adequate signatures. But with that change, a deadline was needed because the rather flexible deadline of sometime during the legislative session was no longer operative. I can’t remember what the deadline was after those changes in the mid-1980s, but it was after the legislative session.