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Mickelson Shifts Burden of Proof of Residency to Circulators

One of Speaker G. Mark Mickelson’s meaner ideas passed the House this afternoon, though not without some Republicans telling the Speaker he’s going too far in his war on initiative and referendum.

House Bill 1196 goes ape on ballot question sponsors and petitioners. Section 6 requires that sponsors include in the sworn affidavit accompanying their submitted petitions the following information about every circulator who helps the cause:

  1. Current state in which the petition circulator is licensed to drive, driver license number, and expiration date;
  2. Current state of voter registration;
  3. Length of time at current physical street address and previous two addresses, and whether the prior addresses were located in South Dakota;
  4. Whether the current physical street address of immediate family, if applicable, is located in South Dakota;
  5. Current state in which any motor vehicle that is owned or leased by the petition circulator is licensed;
  6. A sworn statement by the petition circulator indicating the circulator’s intention to stay in the state after the petition circulation deadline, including the type and location of the circulator’s intended employment;
  7. Any other information relevant to indicate residency, including a library card or utility bill;
  8. Whether the petition circulator pays in-state tuition at any public postsecondary educational institution, if applicable;
  9. Whether the petition circulator obtains any resident hunting or resident fishing license of any kind, if applicable; and
  10. Whether the prefix on the petition circulator’s mobile telephone, if applicable, is a South Dakota area code.

Consider the violations of privacy, decency, and presumption of innocence here.

#3 requires that circulators tell the government the whereabouts of their immediate family members.

#5 requires circulators to tell the state how many cars they own and where they own them.

#6 requires circulators to swear to “intentions” of residence and employment, which may become impossible to carry out if an unfriendly state official calls those employers and scares them off hiring these politically active circulators.

#7 creates an unworkably vague and open-ended demand for information. A circulator may include a library card and a utility bill, but a zealous prosecutor may read “any other information” in the statute and say, “Ah, but your phone bill and apartment lease are also relevant to indicate residency, and you failed to submit those! Gotcha!”

Even if circulators satisfy all ten of those demands, HB 1196 can still hang them. Section 6 goes on to say, “The information included in the affidavit are factors in determining residency but are not determinative.” Not only is that sentence radically ungrammatical but Kafkaesque. Circulators and sponsors are required to render a pile of evidence of residency by a statute that then declares that evidence doesn’t really, fully determine residency.

In other words, not only does HB 1196 flip the burden of proof onto circulators to prove they are innocent of any crime against the electorate, but HB 1196 also provides no reliable standard for proving one’s innocence.

Good grief: wouldn’t it be easier just to have every signer ask the circulator to pronounce our state capital or the town north of Spearfish as a secret statewide password?

I share Speaker Mickelson’s concern about mercenary out-of-state liars corrupting our petition process. Heck, I’ve dogged such liars in parking lots and sidewalks. But Mickelson isn’t really trying to catch out-of-state circulators. If he were, he’d call the cops and tell them to do their jobs and enforce the law we already have banning out-of-state circulators. Mickelson is simply creating the umpteenth barrier of bureaucracy and intimidation to discourage citizens from getting involved in ballot question campaigns. (You want to circulate a petition? Great! First, fill out this ten-question form, give me your personal information, and bring me copies of your library card and utility bill.)

Rep. David Lust (R-34/Rapid City) agrees that HB 1196 goes too far:

“The prescribed cure rather than being precise and using a scalpel uses a backhoe,” Rep. David Lust, R-Rapid City, told representatives on the House floor.  “We have prescribed a remedy that is just over the top” [Dana Ferguson, “House Passes Election Reform Bill Opponents Call ‘Onslaught’ Against Initiative Process,” that Sioux Falls paper, 2018.02.07].

Rep. Lust chooses his metaphors well. Mickelson isn’t performing surgery; he wants to conduct a funeral for initiative and referendum in South Dakota.

Lust and 17 other Republicans (including senior legislators Brunner, Conzet, and Hunhoff) joined the trusty Democratic caucus in opposing this part of Mickelson’s attack on democracy. The final vote was 40–27.


  1. Alan F 2018-02-07 22:13

    Wow. I hope the Senate has the sense to stop this!

  2. grudznick 2018-02-07 23:26

    Usually you mock people for just being registered with a party other than yours, Mr. H. Why do you not mock Mr. Lust for his name like many of your other juvenile attacks on Republicans? You might respond that you attack ideas, not persons, but hundreds of other bloggings related to Mr. Novstrup, the elder, prove that argument moot.

    So here, where Mr. Mick is really stirring the pot beyond the level that the representatives you elected from your district can really understand, how do you see this play out? Will Mr. Kaiser save you? Have you emailed him with some bullets to talk to people about, or is Mr. Kaiser even trying to represent you or run for police chief or mayor or whatever is keeping him from voting on stuff.

  3. Doug Kronaizl 2018-02-07 23:27

    Proponents of these measures describe these proposals as “common sense” moves. Peeling back the layers and considering possible alternatives proves that is not the case. These measures target voters and stem from the misguided belief that the people simply cannot be trusted to govern themselves.

    First, these burdensome requirements are applied to only one group of circulators: ballot measures. Nominating candidate petitioners are not impacted at all. Honestly, it would be interesting to think how quickly legislators would oppose these if they applied to candidate petitions. If a candidate nominated their own petition, suddenly they would have to supply a laundry list of personal info available to anybody with the inkling to challenge their veracity.

    Second, proponents decry out-of-state, paid circulators. If that is truly the case, why not apply these provisions solely to paid circulators? Current wording targets volunteers. If a ballot measure hires a paid circulator, you better expect a lot of signatures from them! But if you are working with volunteers, those expectations cannot be as high. People have 9-5s, families, and the like; instead, you recruit numerous volunteers. But under these types of proposals, that strategy – have 100 volunteers gather 1 signature rather than 1 paid circulator gathering 100 – becomes incredibly difficult to materialize.

    These are anti-voter measures throu h and through. Rep. Mickelson might “take offense” to characterizing these bills as such, but you have to call a spade a spade.

  4. Donald Pay 2018-02-08 07:54

    It’s unconstitutional under South Dakota’s Constitution. You only need to be a qualified elector to sign or circulate a petition. And they expect a raise?

  5. Jenny 2018-02-08 08:07

    What Cory said the other day on Patrick Lalley’s show is the absolute truth. The Pubs are just worried and hate the fact the SD voters are voting in progressive measures such as minimum wage increase and the infamous IM22. That’s what it really is, grudzie.
    The voters of SD vote are much more progressive when it comes down to bread and butter issues and the Good Ol Boys Club can’t stand it, so they have resorted to repressing the SD voter or “knotheads” as Mark Mickelson calls them. Take heed, SD voters, take a stand, or your Initiated Voter Referendum will be taken away before you know it.

  6. Bucko Bear 2018-02-08 11:39

    #10 — people rarely change their mobile phone numbers when they relocate. Mine still indicates the DC metroplex. So I can’t circulate a petition ??
    What exactly is “the burden of proof” and/or standard. 6/10, 7/10 ???
    … and isn’t the Driver license # an invasion of privacy ??
    … and where was the “mockery” of Rep Lust ??

  7. Cory Allen Heidelberger Post author | 2018-02-08 12:23

    I am pleased to see David lusting for some meager protection of democracy.

  8. Donald Pay 2018-02-08 21:53

    Anyone else have a feeling Mickelson seeks to live in a dystopian fantasyland somewhat like Panem? Which nut is nuttier? Tapio or Mickelson. My vote goes to Mickelson.

  9. Nick Nemec 2018-02-09 07:11

    Mickelson is definitely more dangerous to South Dakota democracy. Tapio is probably nuttier but is also easier to lock in a janitor’s closet without him becoming aware he is locked in a janitor’s closet.

  10. Cory Allen Heidelberger Post author | 2018-02-09 08:59

    I’m with Nick: whatever the psychiatric diagnosis, the main difference between Mickelson and Tapio is that Mickelson gets bills passed. It is thus more imperative for Democrats to replace Mickelson.

  11. leslie 2018-02-09 14:22

    what will lust be doing after this legislative stint? Christ he’s got the most community serving resume one has seen. Lobbeyist? Trust mogul? Practicing law is going to be a bit hard after his glamourous political service besmirching CPA/Rep Wismer.

  12. leslie 2018-02-09 14:23

    sorry for the misspelling

  13. Darrell Solberg 2018-02-10 21:00

    Mickelson has gone off the rails!!! Hard to figure out what he is trying prove, other than destroy DEMOCRACY, prove that he is unworthy to serve the people of S.D., and that he has bullying skills that is enough to give one party Government a black eye. I wonder if papa George would be proud of his antics. His efforts prove the common sense flower doesn’t grow in everybody’s garden.

  14. Cory Allen Heidelberger Post author | 2018-02-10 21:52

    Did Mickelson make any useful or illuminating comments on his anti-ballot question bills at crackerbarrels today, Darrell?

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