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HB 1005: “Yes” Means “No” on Referred Laws

The first clear No Way José bill of the 2018 Session is House Bill 1005, one of the products of the mostly feckless and anti-democracy Initiative and Referendum Task Force. HB 1005 confusingly reverses the function of your vote on referred laws.

Currently, when we refer laws passed by the Legislature or by local governments to a public vote, a “Yes” vote on the referendum ballot says, “Yes, we want to enact this measure,” and a “No” vote referendum says, “No, we want to leave things the way they are.”

HB 1005 reverses this language by requiring the Attorney General’s recitation for each referred law on the ballot to consist of these two sentences:

  • “Vote ‘Yes’ to reject the Act of the Legislature.”
  • “Vote ‘No’ to allow the Act of the Legislature to become law.”

The absurdity of this recitation is made clear by the ballot recitations HB 1005 requires for constitutional amendments:

  • “Vote ‘Yes’ to adopt the amendment.”
  • “Vote ‘No’ to leave the Constitution as it is.”

…and for initiated measures:

  • “Vote ‘Yes’ to adopt the initiated measure.”
  • “Vote ‘No’ to leave South Dakota law as it is.”

HB 1005 makes referendum votes inconsistent with amendment and initiative votes. On amendments and initiatives, “Yes” would continue mean change the status quo and enact a new law. But on referred laws, “Yes” would mean the opposite: don’t change the law.

When we successfully petition to refer a bill approved by the Legislature or an ordinance passed by a county or city commission or school board, that law or ordinance is not enacted. It does not take effect until voters approve it at the next election. The statute on municipal referenda makes the traditional view of “Yes” for change and “No” for the status quo clear:

Majority vote required for approval of referred measure–Effective date. No referred ordinance or resolution so submitted shall become operative unless approved by a majority of the votes cast for and against the same. If so approved, it shall take effect upon completion of the canvass of the election returns relating thereto [SDCL 9-20-15, last amended 1939].

“Approved”… “votes cast for”—these words correspond to the word “Yes.” HB 1005 would say to voters, “Approve this law by voting No!”

Boy, if legislators think “No” means “Yes”, they’re going to need more than one afternoon of sexual harassment prevention training.

I suspect that making “No” mean “Yes” is exactly the confusion our elitist Republican legislators want. In the past few years, they’ve seen four major Republican bills (merit pay for teachers, corporate welfare, reduction of the minimum wage, and incumbent protection plan) rejected by voters. The conventional wisdom is that referred laws are guilty until proven innocent—i.e., voters will check “No” by default if they have any doubts about the merits of a ballot measure. Republican legislators, who have seen their elitist schemes thwarted by that reasonably cautious default setting, apparently want to flip that default on its head and make caution and uncertainty swing in their favor.

House Bill 1005 makes ballot language inconsistent and illogical. It also deviously flips an election advantage for the Legislature, undermining the ability of the people to check the power of unresponsive and elitist legislators.

“Yes” should remain the vote for making change and adopting new laws. “No” should remain the conservative position of rejecting change. Consistent conservative legislators should vote “No” (by which I mean “NO!“) on House Bill 1005.


  1. Drey Samuelson 2017-12-22 09:22

    Unbelievable, except (from this crew), not. Sad.

  2. Darin Larson 2017-12-22 09:32

    This is a Machiavellian plan by the legislature. They assume that people will vote no on everything. They will give the voters very little information on a given referred law and then watch as people vote No and approve the legislature’s pet projects. It is hard to be too cynical living in SD. Just when you think the repeal of IM22 by the legislature must be the height of hypocrisy and legislative overreach, a new peak emerges on the horizon.

    Most great Machiavellian plans are not so transparent, however. I would ask every legislator in the state about this attempt to hoodwink voters. Who needs out-of-staters coming in to hoodwink the voters when you have our own legislature trying to pull a fast one?

  3. Donald Pay 2017-12-22 10:23

    It’s unconstitutional and against the culture and custom of the state.

  4. Porter Lansing 2017-12-22 12:08

    Excellent analysis, Darin. It’s a lame attempt at Machiavellian thought crime.

  5. John W 2017-12-22 18:19

    Which members of the DUPHUS DELEGATION are sponsors of this patent trash?????

  6. Donald Pay 2017-12-22 20:39

    One thing I miss about South Dakota is the straightforward old farmers and ranchers who talked about the “culture and custom” of South Dakota. They didn’t mince words, or spin, or lie or try to fool you. They developed a culture (institutions and norms) and custom (a way of leading a life) that, I always assumed, developed from their plain-spoken honesty. That is why you knew when you made an agreement with someone and you shook on it, it was a done deal. They said what they thought, and thought what they said, and they expected the same from everyone, including the people they elected to represent them in Pierre. There might be differences about this or that issue, and that was to be expect, but they also expected an open and honest discussion and an open and honest system.

    We are soon to see how far the South Dakota Legislature is willing to stray from the solid moral code of those old coots who thought, in the custom and culture of South Dakota, that “yes” meant “yes” and “no meant “no.” We have H. R. 1005 to make an estimate of the moral slippage going on in South Dakota. The erosion in honesty is considerable in those who put H.R. 1005 forward. Will the entire Legislature demonstrate the same moral rot of the sponsors?

    After all, Bill Clinton only wanted to quibble about the definition of what “is” is. H.R. 1005 sponsors want to go much, much farther down the road to rot. They want to turn “no” to “yes” and “yes” to “no.” My guess is the old Dakota ranchers would look at this as some sort of trick being attempted by outsiders. And that’s, almost assuredly, what this is.

    The folks behind H.R. 1005 have no understanding of the culture and custom of South Dakota. They have no understanding of honesty in political matters, or of making an honest deal with their constituents and sticking to it. These old folks with morals did mightily distrusted the outsiders who didn’t comport their behavior by the culture and custom of South Dakota; who didn’t stand by a deal made with a handshake; who would say “yes” is “no” and “no” is “yes.”

  7. Porter Lansing 2017-12-22 22:27

    @Don … The majority agreed with you but IM22 was overturned, no matter what the people wanted. A passed initiative was really a failed initiative. PS – “Pay no attention to the man behind the curtain.”

  8. CLCJM 2018-01-18 19:06

    Have to agree Cory about the “no” means “yes” when it comes to sexual harassment training! I’d bet the ones who don’t understand that concept when it comes to sexual harassment don’t understand it in this instance, either! Or maybe prefer not to for their own selfish purposes!

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