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.