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HB 1177 and 1196: Refer or Go to Court?

I have been asked by more than one friend if we should refer House Bills 1177 and 1196 to a public vote. My tentative answer right now is no… but I’m open to persuasion.

House Bill 1177 adds “the name, phone number, and email address of the petition circulator” to the Secretary-of-State-approved form that ballot question petition circulators must provide to signers. House Bill 1196 requires ballot question sponsors to submit sworn statements and absurd amounts of personal information from each petition circulator with their petitions. Both bills are part of the Republican Legislature’s war against initiative and referendum.

HB 1177 is the lesser of these two evils. I have asked circulators to tell me their names. Circulators who conceal their identities from me don’t get my signature. I have always offered my contact information whenever I’ve circulated a petition, whether for ballot questions or candidates, and when I go door to door, the first thing I say is my name. HB 1177 isn’t really an invasion of privacy—when you circulate a petition that can put a candidate or an issue on the ballot, you enter the public sphere. It’s just an additional and unnecessary hassle for petition sponsors, who must customize the ever-burgeoning circulator compelled-speech hand-out for each circulator who volunteers for the cause.

HB 1196 is more invasive, more time-consuming, and more legally daunting. If a petition sponsor makes just two mistakes in collecting all that information, HB 1196 whacks that sponsor with up to a $5,000 fine and kicks them out of participating in ballot question petition drives and campaigns for four years. Curious: I know we take away felons’ right to vote during their sentence, and we only allow sex offenders to circulate ballot question petitions under supervision, but is there any other crime for which we abridge a person’s right to associate and work with a political committee?

Both bills infringe on our right to petition. But do they infringe enough to warrant a referendum campaign? Will potential signers and voters understand the infringement enough to be motivated to sign the petition and to vote these restrictions down? The marketing campaign would have to revolve around the general intent—elitist legislators trying to kill our right to vote on laws—rather than on the election-nerdy particulars.

Such a referendum campaign on election-nerd issues can work. We got people to vote big against Referred Law 19 in 2016 by calling it an Incumbent Protection Plan and an attack on voter rights… but we also got it to pass thanks to the abstruseness of the bill.

HB 1177 and HB 1196 are the kinds of small changes that the Legislature can keep passing, year after year, to erode our initiative and referendum rights. The way to eat an elephant is one bite at a time… but that’s also the way the GOP Elephant eats initiative and referendum. We could march petitions to stop these two bites, but that would not put back the bites taken in previous years or the bites that will be taken by future Legislatures.

I’m not ready to say, “Don’t refer HB 1177 and HB 1196” for sure. I want to review all of the bills that passed this year and compare damages and referendum prospects.

But I will say this: with so many attacks on initiative and referendum, perhaps it is finally time to wage war in court on all of the restrictions the Legislature has imposed on popular democracy. Instead of attacking just the name/phone/email requirement on the circulator form, let’s challenge the entire circulator form as unconstitutional compelled speech. Instead of attacking the new affidavits from each circulator, let’s attack all of the state’s unconstitutional restrictions on circulators (and yes, that may include our ban on out-of-state circulators, which would likely fail a court challenge as it has in other states). Let’s get the ACLU on board to review all of the statutes on initiative and referendum and identify all of the restrictions that a judge could annul. That tack worked for the Libertarians this year; maybe it would work for us advocates of direct democracy.


  1. Caitlin 2018-03-14 08:59

    It is time to go to court. This “death by a thousand cuts” —a typical legislative action — is going to continue. It is time to address this attack on democracy directly.

  2. Donald Pay 2018-03-14 09:58

    I was always in favor of a “do it all” strategy” to issues when I was in South Dakota. Court challenge? Yes. Referral? Yes. Stickin’ it right up their a** at election time? Yes. Referring their pay raise? Yes. And just so they get the point, referral of a pet issue of Dudley Doo-dooguard or G. Marky? Yes. All of it, all at once. This ain’t bean bag. These guys have played the long game for decades. It’s time to fight back. We defeated the dumps by being just as mean as they were, and that’s the only way you are going to defeat these folks.

    I have no problem with public disclosure of the names of circulators. It should be on a badge with official sanction by the Secretary of State. Any thing other than name and the ballot question is not needed, but I wouldn’t be opposed to the SOS having a list with that information. Anything applying to ballot questions should apply to candidate petitions. I would go further. There should be a training module on the SOS website for circulators. All this is contingent on getting rid of forced speech and ridiculous bureaucracy and putting the timelines put back to the way it was in the 1990s. The “death by a thousand cuts” strategy has be rolled back significantly. It started in the 2000s. It has to be fought and rolled all the way back.

  3. Curt 2018-03-14 18:49

    Sue the bastards!

  4. Debbo 2018-03-14 20:40

    Yep, court and clearing up the entire mess seems the way to go.

  5. leslie 2018-03-14 21:54

    I agree all the above and Cory’s last para. ACLU would be sweet.

    I noticed today as Jackley is using the press to advance his campaign, he has let $2-3 million annually go uncollected from the tobacco litigation since 2003. That is a lot of money to be unaccountable to the taxpayers for. I suppose this just came up as important now that he keeps referring to the tobacco litigation as his model to avoid treating addicts but tricking the less wise population into thinking he is proactive on the opiod circumstance.

  6. leslie 2018-03-14 22:01

    Also I/R is in our constitutionas is the 2nd amendment. Are the republicans “reasonably regulating” the Initiative/Referendum? Just like most reasonable people wish to reasonably regulate AR15s, large capacity magazines, universal back ground checks, concealed carry, open carry, guns in our schools, ect

  7. Cory Allen Heidelberger Post author | 2018-03-15 06:20

    You know, Donald, maybe you’re onto something. Maybe we need to pair a referral of HB 1196 with a referral of HB 1311, the legislative pay raise. That’s kind of like what we did in 2015: pair the minimum wage cut, which everyone understood immediately as legislative overreach, with the more complicated SB 69, the Incumbent Protection Plan. Offer the voters a measure that got a lot of attention and raised a lot of hackles, then offer them the second measure in that context as another example of legislators treating themselves better than they treat voters.

  8. Lori Stacey 2018-03-15 09:51

    Many are absolutely appalled at the passage of these boldly unconstitutional bills, including some at the ACLU. You may want to reach out to them in this matter.

    As a full-time professional petition circulator, I am still reeling about the invasion of privacy passed last session to have to disclose, in writing, my rate of pay. I would never dream of asking anyone that signs what their income is! Likewise, it is absolutely none of my business and should never be forced to provide that information to anyone as it is against all logical rights of privacy.

  9. Cory Allen Heidelberger Post author | 2018-03-19 05:50

    Perhaps the ideal approach is to circulate referendum petitions on 1177 and 1196 and refuse to comply with the circulator form requirement in SDCL 2-1-3.1. That statute does not provide any penalty or invalidate the petition (or so we would argue). If the SOS did try to impose any penalty on non-form circulators or sponsors, we would take her to court and challenge the whole kit and kaboodle for referendum and initiative.

  10. leslie 2018-03-19 21:07

    The ACLU of Arkansas and the Arkansas Public Law Center challenged restrictions passed in 2013 restricting the right of Arkansans to propose new laws or to reject those passed by the state legislature or a local legislative body. The new rules made the process so expensive and burdensome it had the effect of discouraging average Arkansans from engaging in this form of direct democracy. The court agreed; but when the state appealed to the Arkansas Supreme Court, that court upheld the restrictions. 2016

  11. Rick Knobe 2018-03-24 19:00

    Cory, if I was in South Dakota now, I would go after all of it in court. Your elephant Analogy is perfect. The Repubs don’t like the people. We are a nuisance to them. They also don’t like different ideas, and hate them if they appear to be backed by those dastardly out of staters. And worst of all for the Repubs is criticism, and receiving orders from the voters.

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