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Initiative & Referendum Task Force Bills: 5 Nay, 3 Yea, 2 Maybe

I’ve reported on House Bill 1005 (the bad “Yes Means No” referendum wrecker), House Bill 1007 (the weak but salvageable Citizen Initiative Review Committee), and Senate Joint Resolution 1 (Senator Jim Bolin’s unnecessary increase of the vote needed to amend the constitution from simple majority to 55%). Now let’s look at the other bills reported out of the Initiative and Referndum Task Force:

House Bill 1004 makes a seemingly minor rule change, authorizing the Board of Elections to set rules for the size of initiative petition forms and fonts. But suppose the Board of Elections specified that an initiative petition sheet must be no larger than 8.5 by 14 inches (standard legal sheet) and must be printed in nothing smaller than 12-point font. Such restrictions would effectively limit the length of an initiated law or amendment and make longer proposals like freshly certified Amendment W or the pending medical cannabis initiative uncirculatable. HB 1004 doesn’t authorize the Board of Elections to dictate font style, so sponsors tackling complicated issues could still game the rules by using skinnier fonts (may I suggest Goudy Sans or Times New Roman over Verdana or Courier?) with tighter spacing, but allowing the state to set a de facto limit on the length of ballot measures unacceptable limits the constitutional right of citizens to “propose measures,” with no limits on length, for the ballot. Vote NO on HB 1004 (unless SB 12 passes—see below!).

House Bill 1006 requires the Legislative Research Council to include in its official comments to initiative sponsors “assistance regarding the substantive content of the initiated measure or initiated amendment in order to minimize any conflict with existing law and to ensure the measure’s or amendment’s effective administration.” That’s nice, but HB 1006 then takes four months of prep and circulation time away from petitioners by allowing the LRC to sit on any initiative petitions submitted between December 1 and the Legislature’s adjournment at the end of March. In this election cycle, the LRC received four petitions during that window, petitions whose LRC review (and, hence, final revision and circulation) HB 1006 would have delayed for weeks. The hardy LRC has managed to review such early petitions during the Legislative Session in the past; the meeting of our elected Legislature should not put the citizen legislative process on hold. Vote NO on HB 1006.

Senate Bill 9 is edge-frittering, making the LRC go back and tack fiscal notes on any ballot measures certified for this year’s ballot that could affect state revenues. SB 9 makes last year’s SB 77 retroactive. Last year’s SB 77 will cause more delay for circulators of future ballot measure petitions, but this year’s horses have already raced around the track. Unlike John Thune and Mike Rounds, I’m not afraid of getting an official scoring of the fiscal impact of the bills I’m voting on. I will not resist passage of SB 9.

Senate Bill 10 resolves conflicts and plain “contrary intent” between simultaneously approved initiated measures and amendments by giving precedence to the measure receiving the greatest number of affirmative votes. Currently, any such conflicts would be resolved by the Code Commission, a creature of the Legislature. A measure that transfers decision-making about initiatives from the Legislature to the people is a step in the right direction. Vote YES on SB 10.

Senate Bill 11 prohibits initiative sponsors from submitting their draft petitions to the LRC for review any earlier than 30 months before the general election in which they’d like the public to vote on their initiative. Practically speaking, SB 11 may have zero effect on the initiative process: the earliest anyone submitted a petition to LRC for the 2018 election cycle was late September 2016. I can’t think of any instance of a petition submitted before May of the year two years before the target election. But if I wanted to, I could draft an initiative for the 2022 general election, give it to LRC today to review, and get their comments back this month so I could spend the next two years researching and revising. SB 11 says I can’t submit my 2022 initiative for LRC review until May 8, 2020. SB 11 takes away a little-used right. No one will notice, but it’s still a negative. Vote no on SB 11.

Senate Bill 12 could alleviate the danger of HB 1004 by removing the requirement that initiative petitions include the full text of the proposed measure. Petitions would still have to have the title and attorney general’s explanation, which suffices to establish the legitimacy of the petition voters are signing. To compensate, SB 12 would require that circulators include the full text of the initiated law or amendment on the much contested (compelled speech!) circulator form that already contains the A.G.’s explanation and circulator information. Arguably, SB 12 could increase initiative sponsors’ printing costs by making them print off tens of thousands of copies of their initiative. However, SB 12 also changes the language concerning what circulators must do with that form from “provide” to “make available.” I could interpret that language to say that I can have one sheet of paper with the full text of the initiative I’m petitioning. I can show my signers that sheet to read as we stand on the street corner or at the fair booth. If they ask for a copy they can read at home, I can hand them my card with a link to a complete web version of the initiative text. If changing “provide” to “make available” allows that change, then I can live with SB 12. But if the intent of SB 12 is to add more paperwork and expense to the initiative process, then nuts to it. Cautiously review SB 12.

Senate Bill 13 directs the LRC to prepare fiscal notes for an initiative without waiting for the sponsor’s request. This bill removes an unnecessary and delaying bureaucratic step. Vote YES on SB 13

*     *     *

To review:

Bill Vote
HB 1004: size of petition form and font NO
HB 1005: “Yes” means “No” on referenda NO
HB 1006: No LRC comment during Session NO
HB 1007: Citizen Initiative Review Commission maybe if amended
SB 9: fiscal notes for this year’s initiatives yes
SB 10: Vote count resolves conflicting initiatives YES
SB 11: no LRC review 31+ months before election no
SB 12: move initiative text from petition to circulator form maybe if clarified
SB 13: speed up LRC fiscal note YES
SJR 1: require 55% vote to amend constitution NO

Out of ten bills, five deserve straight NOs for clearly weakening citizens’ democratic power. Only two measures get clear YESes for improving the initiative process. The remaining three possible YESes range from trivial to questionable to requiring serious amendment to deserve our vote.

Noteworthily absent from this list is any systemic reform that makes the entire initiative and referendum petition process work better. The Legislature’s task force produced one measure, SB 10, that protects the popular will from Legislative meddling, and that measure would kick in only in rare (unprecedented?) instances when approved ballot measures conflict. Seven of these measures, including two that I’m willing to vote for with revision, increase the ability of the Legislature and other state entities to hinder the exercise of direct democracy through ballot measures.

But did anyone expect any different outcome? These ten bills from the Legislature’s Initiative and Referendum Task Force demonstrate that we can’t trust the Legislature to truly support or strengthen the people’s ability to check and balance the Legislature.


  1. paul 2018-01-02

    Again, the Politicians of South Dakota try and take away the rights of the citizens. Contact your legislators immediately and voice your opinion – ask them WHY???

  2. Cory Allen Heidelberger Post author | 2018-01-02

    Paul’s right—contact your legislators and voice your opinion! And e-mail them the handy little ten-point table at the end—they may need an easy cheat sheet to keep the bills and the right votes straight (I certainly do!).

  3. Jivin Knute 2018-01-02

    Thank you for this handy guide of which I have taken note and fully intend to communicate to my state legislators.
    I also see giving the crib sheet to friends so they can be better informed.

  4. Cory Allen Heidelberger Post author | 2018-01-02

    Note, of course, that crib sheet could change once the Session starts and committees start amending. Watch for Jim Bolin, Mark Mickelson, and other Republicans to sneak more anti-initiative tricks into these bills. We could end up with ten straight NOs by the time these bills hit the floors.

  5. Donald Pay 2018-01-02

    I’ll give you my opinion later, after I’ve soaked in your wisdom on these proposals. I’m inclined to support HB 1006, but not unless the entire timeline and process is reconfigured. And that would be my position on about everything, so my initial position would be VNOE.

    I’ve never been a supporter of complex or long bills or initiatives, but if the Legislature can’t discipline itself and follow the Constitution regarding one subject, I’m not sure how they can legally restrict the length of petitioned ballot measures. That would be as unconstitutional as restricting the length of a bill a legislators submits.

    The Task Force did a piss poor job of thinking about the process as a whole and from a citizen perspective. It’s all a sap to the bureaucracy and special interests who want to so complicate the process that it is unusable. Shameful, really, that they have no clue that this just encourages more outside money. So, no, it should all go down in flames, and they should start over with real citizens in charge. If not, I would suggest that citizens develop their own proposal and petition it.

  6. Rebecca 2018-01-03


    I’m going to have to disagree with you, in part, on HB 1005.

    The intent of the bill (proposed in the Summer Task Force by Attorney Will Mortenson) was to remove the opportunity for biased language in the recitation by prescribing that language.

    While I agree with you that the “yes means no; no means yes” language for referred laws is bad, a simple amendment could fix the problematic language and make this a supportable bill.

    Would you agree?

  7. Cory Allen Heidelberger Post author | 2018-01-03

    Strike the Yes/No flip on referendum ballot language, and I flip my nay to yea on HB 1005. But unamended, flipping the meaning of Yes and No on every referendum ballot line would do more to harm the will of the people than removing the potential for biased language in the recitations.

  8. Donald Pay 2018-01-03

    I’ve started going through the bills, beginning with HB 1004. Don’t just look at these bills as saying “yes” or “no” to what is presented as the only changes that can be made. Look at all the statutes included in the bill as an opportunity to make changes for the better.

    For example, HB 1004 Sections 2 and 3 have lots of stuff there that should be completely axed from current statutes, and changed to be more tuned to citizens. Example:

    Section 3 amends 2-1-1.2. Well, there’s no reason not to simply amend 2-1-1.2 further to get rid of a lot of stuff that unnecessarily complicates the process.

    Section 3. That § 2-1-1.2 be amended so that it reads:

    2-1-1.2. The petition as it is to be circulated for an initiated measure shall be filed with the secretary of state prior to circulation for signatures and shall:

    (1) Contain the full text of the initiated measure;
    (2) Contain the date of the general election at which the initiated measure is to be submitted;

    (4) Be accompanied by a notarized affidavit form signed by each person who is a petition sponsor that includes the name and address of each petition sponsor; and

    The petition circulator shall where a badge which identifies whether the circulator is a paid or volunteer petition circulator. The badge shall be provided for free by the Secretary of State.
    For any initiated measure petition, no signature may be obtained more than twenty-four months preceding the general election that was designated at the time of filing of the full text. The initiated measure petition shall be filed with the secretary of state at least six months before the next general election. A notarized affidavit form, signed by at least two-thirds of the petition sponsors, stating that the documents filed constitute the entire petition and to the best of the knowledge of the sponsors contains a sufficient number of signatures shall also be filed with the
    secretary of state. The form of the petition the affidavit shall be prescribed by the State Board of Elections.

    So, you get rid of stuff that is ridiculous and complicates the process needlessly. Sorry I don’t appear to have the overstrike function.

    Someone needs to

  9. Cory Allen Heidelberger Post author | 2018-01-04

    Thanks, Donald! Badges could be kind of fun. Big shiny stars, for democracy….

    I would love to see the six-month deadline for submission, even though that would only give us until the first week of May. How about setting the general deadline at July 1 before the general election, with a special provision for efforts to initiative bills that were considered but rejected by the Legislature or vetoed by the Governor? If an initiative is a failed bill that went through committee, let circulators skip LRC review and demand an expedited explanation from the AG, say within 20 days. That would give circulators more than two months to put a failed bill to a public vote.

    (For overstrike, try <del> and </del> around the text you’d like to drop:)

    I like ham on rye.

  10. Ted Curry 2018-01-29

    According to our GOP Legislature, the voters of SD are our #1 problem! Craven, cynical, and undemocratic.

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