Imagine you’re headed to the courthouse in Sioux Falls, and you see a ballot question petitioner. You’ve heard there’s a really good ballot question circulating (maybe you’re a conservative Christian and you’ve heard there’s an abortion ban circulating, or maybe you’re a Berniecrat and you’ve heard there’s a Medicare-for-All petition, or maybe you’re a Catholic Democrat and you want to sign both!). You walk up to the circulator, learn she’s carrying a petition that interests you, and you offer to sign.
“Are you from District 15?” the circulator asks. You’re not. “Sorry, pal,” she says, “your signature’s not that important.” Then a passerby says he’s from District 15, and with a squeal of delight, the circulator throws herself at him and gets his signature.
How would you feel having your signature so discounted? Your signature should count as much as the next guy’s, right?
That’s why House Bill 1275, the Haugaard–Novstrup geographical quota for ballot question petition signatures, may be constitutional toast. On Valentine’s Day, Judge William J. Martinez of the U.S. District Court of Colorado issued an Order to Show Cause that says Colorado’s geographical quota for initiated amendment petitions violates the Equal Protection Clause by diluting the value of some voters’ signatures.
The Colorado case—Semple et al. v. Williams, Case #1:17-cv-01007—is extremely instructive, since the factors weighing in the case are very similar to those in South Dakota and the proposed quota in HB 1275. Colorado has 35 legislative districts, just like South Dakota. Coloradans seeking to put an amendment to their state constitution to a vote must collect signatures equal to “at least five percent of the total number of votes cast for all candidates for the office of secretary of state at the previous general election”; South Dakota requires five percent for initiated laws and ten percent for initiated amendments and bases those percentages on the gubernatorial vote. In 2016, Colorado voters added a new petition requirement (Amendment 71): circulators must get signatures from at least two percent of the registered voters in each of Colorado’s 35 state senate districts. HB 1275 imposes a different quota for initiated laws: at least five percent of qualified electors “in a majority of the senate districts….” Both Amendment 71 and HB 1275 seek to make it harder to place measures on the ballot.
In his 31-page order, Judge Martinez says Amendment 71 violates the Fourteenth Amendment principle of “one person, one vote.” Judge Martinez’s ruling hinges on the observation that Colorado’s senate districts, while drawn to achieve roughly equal population, have widely varying numbers of registered voters. Colorado’s District 21 has the fewest registered voters, 80,499, while Colorado’s District 23 has the most, 132,222. That 64% variance from smallest to largest means each voter in District 23 has 64% more power than each voter in District 23 to help place a measure on the ballot with her signature. Judge Martinez says the resulting “dilution” of voter power in District 23 is constitutionally unacceptable.
On the day of Judge Martinez’s pronouncement, the variance between the South Dakota districts with the least and most registered voters was 79.5%.
We discussed this disparity in registered voters in South Dakota’s Senate districts last month. When I asked if we should draw district boundaries differently to equalize voter power in choosing legislators, Joe Nelson said no, total population is still a fair basis for legislative representation, since, for instance, registered voting parents represent the interests of their children who are unable to vote. Judge Martinez points to precedent (Evenwel v. Abbott 2016) that agrees with Nelson (good call, Joe!): voter dilution is tolerable for the sake of representational equality, the idea that each elected legislator represents the same number of people, registered voter or otherwise, in her district.
But representational equality isn’t a factor in ballot question petitions:
In the context of direct democracy, however, the tension between preventing vote dilution and ensuring equality of representation falls away because, with no “representation” in the ballot petition form of direct democratic rule, there is no representative equality component of the equation to balance against the integrity of the vote. In other words, there is no representation; there is only voting. To be sure, in common speech we are accustomed to referring to an election outcome as “the will of the people,” even though it is strictly speaking only the will of the voters. But “the will of the people” is meant as an expression of commitment to the democratic process—that we agree to abide by the outcome of an election. It is not meant as an expression that each voter has a duty to account for the interests of the general population within his or her voting district. One who votes in favor of a candidate or proposition surely does not represent anyone else in the same district (voter or non-voter) who opposes the candidate or proposition. A signatory to a ballot petition initiative surely does not represent anyone else in the same district who refused to sign the petition, much less any person who never learned about it in the first place [Judge William A. Martinez, Order Denying Motion to Dismiss and Order to Show Cause, Semple et al. v. Williams, #17-cv-01007, 2018.02.14, pp.18–19].
Courts have already found signature quotas based on counties unconstitutional because of differences in population that dilute voter power. The sponsors of HB 1275 tried to get around that by basing their geographical quota on Senate districts with equal population. But now the federal court in Colorado says that scheme violates “one person, one vote” as well when Senate districts have widely varying numbers of registered voters. In South Dakota, HB 1275 would cause the signatures of voters in Districts 15, 7, 26, and 17 to have more power and be worth more to petitioners than signatures from voters in Districts 33, 30, 11, and 8.*
And that outcome, as you would feel in your gut the moment a petitioner turned you away in favor another South Dakota voter, just ain’t right.
No matter which way we slice the state, House Bill 1275 ends up unconstitutional. Sponsors Haugaard and Novstrup have to accept the fact that, in an election issue on which all South Dakotans can vote, we cannot treat any arbitrary subset of South Dakotans differently. When the Legislature gets back to Pierre Tuesday, Rep. Haugaard should ask the speaker to withdraw HB 1275.
*Off the top of my head, I can tell you that the high voter totals in Districts 33 and 8 are due to Box Elder’s America’s Mailbox and Madison’s MyDakotaAddress.com, two of South Dakota’s very successful mail-forwarding and tax-avoidance services for RVers.