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HB 1196: The End of Grassroots Initiative and Referendum in South Dakota?

South Dakota, the state that first enacted initiative and referendum, may be about to kill it.

People keep asking me whether we should refer any of the Legislature’s new anti-ballot question laws to a public vote. Given the death-by-a-thousand-cuts nature of the Republican Legislature’s long-term assault on direct democracy, I’ve been inclined toward more comprehensive solutions, like taking the state to court over its oppressive petition laws or pushing an initiative next year to roll back all of the Legislature’s unfair restrictions on petitioners.

HB 1196 nukes initiative and referendum in South Dakota?
Am I overstating the danger here?

But the more I think about it, the more it seems to me that one bill, House Bill 1196, could kill initiative and referendum, and that we must refer this one bill, House Bill 1196, if we ever want a shot at putting another measure on the ballot.

Let’s review how House Bill 1196 hampers petitioning. This bill, brought to us by Public Enemy #1 G. Mark Mickelson, requires ballot question sponsors to submit with their petitions the following information about every one of their circulators (I quote directly from HB 1196 Section 6):

  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. A sworn statement by the petition circulator indicating the circulator’s intention to stay in the state after the petition circulation deadline;
  5. Any other information relevant to indicate residency, including a library card or utility bill;
  6. Whether the petition circulator pays in-state tuition at any public postsecondary educational institution, if applicable; and
  7. Whether the petition circulator obtains any resident hunting or resident fishing license of any kind, if applicable [2018 HB 1196, Section 6].

Now if you’ve ever run a petition drive, think about the work you already to do to recruit circulators, train them, get petitions and handouts into their hands, and then get them to get their notarized petitions back into your hands by deadline. Think about the challenges you ask your circulators to withstand—the canvassing, the technicalities, the hot/cold/rainy/windy hours on the sidewalk, the rejection from non-signers.

Now imagine turning to every one of those circulators, especially the volunteers, and saying, “Here, fill out this form with 13 points of personal data, swear before a notary that you don’t plan to leave South Dakota for some indeterminate period, and staple on a copy of your last electric bill.”

You just lost most of your volunteers, didn’t you?

And even if you get that data, if a hardy volunteer makes a mistake in submitting that data, you lose every signature that circulator submits:

Failure to substantially comply with the provisions of this section shall disqualify the petitions from a petition circulator not in substantial compliance with this section from being considered [2018 HB 1196, Section 6].

Plus, if more than one circulator gives you the wrong data, you lose $5,000 and your right to work on ballot questions:

If any petition sponsor, or any person or entity compensated by the petition sponsor or a ballot question committee for purposes of petition circulation, knowingly or with reckless disregard commits multiple violations of the law regarding petition circulation, residency of a petition circulator, or campaign finance regulation, the petition sponsor, person, or entity, including any person serving as a member of the board or as an officer of the entity, is prohibited from being a petition sponsor or petition circulator, and from performing any work for any ballot question committee for a period of four years in addition to any other penalty imposed under state or federal law. Any violation of the provisions of this section shall also result in a civil penalty of up to five thousand dollars to be deposited into the state general fund [2018 HB 1196, Section 7].

Holy cow—you didn’t just lose all of your circulators; South Dakota just lost all of its sponsors.

Real South Dakotans circulating ballot question petitions take their duty to the constitution and the integrity of the ballot seriously. They make sure their circulators know and follow the law. House Bill 1196 doesn’t make real South Dakota petitioners more responsible; it makes them run from petitioning as legally dangerous, personally invasive, and practically impossible.

House Bill 1196 erects barriers to petitioning that will shut down real grassroots volunteer petitioning. The only entities that will find it worth their while to scale those barriers will be… wait for it… the very out-of-state for-profit traveling-circus circulators from whom G. Mark Mickelson says he’s trying to protect us. Those profiteers will include the HB 1196 personal information form and affidavit in their hiring materials, they’ll check the submitted data and utility bills and Gaia-knows-what for compliance, they’ll retain a lawyer to defend that compliance, and they’ll charge ballot question committees a pretty penny for that service.

In other words, if we don’t sign a petition now to refer House Bill 1196, we may never get to sign another ballot question petition.

Or if we do still see any ballot question petitions under HB 1196, they will come solely from rich out-of-staters like the payday lenders and Henry T. Nicholas who can burn millions on their intrusions into our elections and our laws.

The referendum clock is already ticking (we’ve lost Tuesday and Wednesday for petitioning; referendum petitions are due Monday, June 25). Collecting 13,871 signatures (plus 30% cushion: call it 20,000) in 88 days is a pretty big undertaking. But if we don’t do it—and if we don’t proceed to reject HB 1196 in November—we may never see another genuine, South Dakota, grassroots ballot question petition.

35 Comments

  1. Debbo 2018-03-28

    “Real South Dakotans circulating ballot question petitions take their duty to the constitution and the integrity of the ballot seriously.”

    Too bad Michelson doesn’t take his duty to the constitution and citizens of SD seriously.

  2. grudgenutz 2018-03-28

    If you want to refer this, I will circulate the petition.

    G Marky Mick went to the legislature, destroyed a great deal of what makes us a great state and nation (not to mention the integrity of his famiy name), and decided to hightail it to some other pighole. Perhaps I will have a chance, someday, to tell him to his face what a POS he is.

  3. Donald Pay 2018-03-28

    I’m telling ya. They’ve been trying to do this for 20 years. I’d take out petitions of this and something Daugaard or Mickelson got passed. Be just a effing mean as they are.

  4. S. 2018-03-28

    I’ll circulate petitions to refer this.

  5. leslie 2018-03-28

    Excellent strategy Cory. Let’s do it

  6. grudznick 2018-03-28

    grudznick will not circulate petitions, but I will get people out there to sign onto yours with questionable information. Mr. Mickelson is a true patriot and spent a lot of thought in the cooking up of this fine law bill. It shall stand.

  7. Charlie Johnson 2018-03-28

    I’m ready to help!

  8. Drey Samuelson 2018-03-28

    What I just posted on Facebook:

    If you live in South Dakota and care about direct democracy, this is literally “all hands on deck” time. Cory Allen Heidelberger’s analysis below is absolutely right–this law will, if it’s allowed to stand, essentially kill the initiative and referendum process in South Dakota. Please read his spot-on essay–this law will ensure that no one will either circulate petitions or sponsor them if it isn’t successfully challenged. The good news is that we can stop it from going into effect by submitting 13,871 valid signatures before June 25th by using our referendum ability to stop terrible laws in their tracks, and this piece of crap defines the term “terrible law.” If we do that, the law will go into effect *if and only if* South Dakotans vote in favor of it, which I am very confident they won’t do, if given the choice.

    But giving them the choice is key, and it’s not easy–we need 13,871 valid signatures, and we only have 90 days to acquire them. This is not the time to “let Jack do it,” because there aren’t enough Jack (or Jills) to get it done. We have to make a decision whether there are enough of us willing to fight this or not, and we’re asking folks who are willing to stand with us to email SaveSDdemocracy@gmail.com, and give us your mailing address, your phone number, and how many signatures you are willing to pledge to get. Please be accurate in your pledge–if we go forward with this referendum, we’ll be counting on you.

    We can do this, but if and only if all of us act collectively together! Please(!) share this on your FB page, too!

  9. Kurt Evans 2018-03-28

    “grudznick” writes:

    Mr. Mickelson is a true patriot and spent a lot of thought in the cooking up of this fine law bill. It shall stand.

    I’m generally not a betting man, but if I were, my money would be on Heidelberger.

    Send me a couple of petition sheets, Cory. I’ll make additional copies as necessary.

  10. Cory Allen Heidelberger Post author | 2018-03-29

    ‘Nutz, S, Leslie, Charlie, Kurt—that’s five circulators already. Cool! If each of you can fill two sheets, that’s 200 signatures… 1% of the minimum safe total we need. 495 circulators to go!

    Kurt, when’s the Constitution Party convention? Can we get a party commitment for the petition drive?

  11. Jake 2018-03-29

    I’ll carry one, gladly!

  12. grudgenutz 2018-03-29

    Yes, Cory, it’s a daunting proposition, all right.

    I notice that grudznick continues its unbroken line of cowardice.

  13. Darin Larson 2018-03-29

    Cory, I’m not following your math. If 1% of the necessary amount is 200 signatures, the total would be 20,000 signatures. If each circulator is getting 200 signatures, and you have 5 signed up already, you need 95 more circulators, not 495 more.

  14. Darin Larson 2018-03-29

    Count me in.

  15. Kurt Evans 2018-03-29

    Cory asks:

    Kurt, when’s the Constitution Party convention?

    I’ve suggested July 21. The state chair seems to prefer July 7. I haven’t talked to the vice chair about it yet. We may wait to find out whether any potential candidates have conflicts on those dates. We still have a few weeks to decide.

    Can we get a party commitment for the petition drive?

    I’m planning to ask.

    Darin Larson writes:

    If each circulator is getting 200 signatures, and you have 5 signed up already, you need 95 more circulators, not 495 more.

    If each of the five circulators can fill two sheets, I believe that’s 40 signatures each and 200 signatures combined, not 200 signatures each. Maybe Mark Mickelson should come out and collect 200 or 300 signatures for us so he can learn firsthand how easy it is (ha ha).

  16. Cory Allen Heidelberger Post author | 2018-03-29

    Mickelson did his bit for his two successful initiative drives last fall. He has the lowest error rate of the petitions submitted this cycle—we should definitely get him and his people to circulate for us. :-D

  17. Cory Allen Heidelberger Post author | 2018-03-29

    Thanks, Jake! Everyone hang in there—I’m going to find out soon if we’re going to take out petitions and start circulating. Tell your friends, and let’s see if there’s a critical mass for 20,000 signatures!

  18. MHN 2018-03-29

    I’ll try too if I get a petition sheet.

  19. Cory Allen Heidelberger Post author | 2018-03-29

    Thanks, MHN! I’m writing all of your names down. Can each of you get ten friends to do the same?

  20. Darin Larson 2018-03-29

    Kurt, Thanks for explaining my question.

    We have to get more than 40 signatures each!

  21. Cory Allen Heidelberger Post author | 2018-03-29

    Thanks, Kurt, for arithmetic!

    Darin, yes, we should get more than 40 signatures from every volunteer. I’m offering a conservative average, based on experience showing some volunteers just get Ma, Pa, and a couple drinking buddies to sign, while others go bonkers and fill multiple sheets.

    If the issue really sets the grassroots on fire, then any given volunteer should be able to get 100 signatures, or more. I’m trying to figure out just how flammable the grass is.

  22. Kurt Evans 2018-03-29

    Cory writes:

    Mickelson did his bit for his two successful initiative drives last fall.

    I’m wondering how many hours he personally spent approaching strangers on sun-baked sidewalks and parking lots.

    Thanks, Kurt, for arithmetic!

    I earned a baccalaureate degree studying mathematics. It’s nice to put it to use (ha ha).

  23. Cory Allen Heidelberger Post author | 2018-03-30

    You and I both! Maybe you should pick me as your Lt. Gov. ticketmate. We could run as the Math Major Party.

  24. Jennifer 2018-03-30

    I’m sure we could get at least 20 signatures here in Brookings and probably more.

  25. Kurt Evans 2018-03-30

    I’d written:

    I earned a baccalaureate degree studying mathematics…

    Cory writes:

    You and I both!

    At the same school, a year apart, and we both studied Black Elk under SDSU philosophy professor David Nelson, and yet somehow we never met.

    Maybe you should pick me as your Lt. Gov. ticketmate. We could run as the Math Major Party.

    Yeah, the national Constitution Party is really strict about keeping candidates out from under the Constitutionist banner unless they say human life begins at conception, so you’ll need to get those new-party petitions circulating (ha ha).

  26. Cory Allen Heidelberger Post author | 2018-03-31

    My future wife and I were in the same classroom, same semester, reading that same book with Dr. Nelson, yet she and I never spoke, largely because I was too busy flirting with two other girls in the class. Dr. Nelson nonetheless read Scripture at our wedding.

    Now hey, if I can survive Scripture readings in my church wedding and stay married to a Lutheran pastor, surely the South Dakota Constitution Party could accommodate a passionate defender of the Constitution who agrees conception matters but maintains that the Constitution protects the woman’s right to autonomy over any claims we make on behalf of embryos? ;-)

    [Yes, yes, I’m completely off-topic.]

  27. Kurt Evans 2018-03-31

    I’d written:

    [Cory and I earned degrees studying mathematics at] the same school, a year apart, and we both studied Black Elk under SDSU philosophy professor David Nelson, and yet somehow we never met.

    Cory writes:

    My future wife and I were in the same classroom, same semester, reading that same book with Dr. Nelson, yet she and I never spoke, largely because I was too busy flirting with two other girls in the class. Dr. Nelson nonetheless read Scripture at our wedding.

    I believe you and I also studied political ideologies under SDSU professor Gordon Tolle. Based on the pattern here, I’m guessing he was your best man (ha ha).

    Now hey, if I can survive Scripture readings in my church wedding and stay married to a Lutheran pastor, surely the South Dakota Constitution Party could accommodate a passionate defender of the Constitution who agrees conception matters but maintains that the Constitution protects the woman’s right to autonomy over any claims we make on behalf of embryos?

    The state party might make an exception for such a candidate if the national party would. My impression is that the national party wouldn’t, but if I thought you were seriously interested, I could probably ask. :-)

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

    Thanks, Kurt. We don’t need to test that exception this year: since Terry LaFleur is going to convert and seek your nomination, the Constitution Party has two gubernatorial candidates who might be able to accommodate each other as running mates. Do you know him? Could you two work together?

    That said, I’d like to think that our conversations could demonstrate that, under other circumstances, an Evans/Heidelberger ticket could have intelligent policymaking conversations and could manage a state government reasonably effectively.

    Plus, a Governor Evans would veto the heck out of any restrictions on initiative & referendum, and Lt. Gov. Heidelberger would do what he could while presiding in the Senate to discourage such bad legislation.

  29. Kurt Evans 2018-04-01

    Cory writes:

    We don’t need to test that exception this year: since Terry LaFleur is going to convert and seek your nomination, the Constitution Party has two gubernatorial candidates who might be able to accommodate each other as running mates. Do you know him?

    We haven’t met yet, no.

    Could you two work together?

    If I win the nomination for governor, I may recommend Terry for attorney general. If he wins the nomination for governor, I may seek the nomination for Congress. If the party ultimately nominates us for governor and lieutenant governor—in either order—I believe we could work together. This isn’t an analogy, but if two people as obviously different as Trump and Pence can do it …

    That said, I’d like to think that our conversations could demonstrate that, under other circumstances, an Evans/Heidelberger ticket could have intelligent policymaking conversations and could manage a state government reasonably effectively.

    There might be a few survivors (ha ha).

    Plus, a Governor Evans would veto the heck out of any restrictions on initiative & referendum …

    Let’s say most restrictions. I mean, I’m a pro-liberty Constitutionist, not an anarchist. :-)

  30. bearcreekbat 2018-04-02

    . . . . —in either order—I believe we could work together. . . . if two people as obviously different as Trump and Pence can do it …

    Is assuming the Pense like obsequious role to someone like Trump that easy for a SD libertarian?

  31. Roxanne weber 2018-04-02

    I’ll circulate. Roxanne weber

  32. Kurt Evans 2018-04-02

    I’d written:

    If the party ultimately nominates us for governor and lieutenant governor—in either order—I believe [Terry LaFleur and I] could work together. This isn’t an analogy, but if two people as obviously different as Trump and Pence can do it …

    Then “bearcreekbat” deceitfully misquoted me by editing out, “This isn’t an analogy,” and asked:

    Is assuming the Pense like [sic] obsequious role to someone like Trump that easy for a SD libertarian?

    As I’d explicitly indicated, I wasn’t trying to draw an analogy between Pence (with a c) and myself, much less between Trump and Terry. In any case, the answer would probably be no. Assuming a Pence-like role relative to someone like Trump probably wouldn’t be that easy for a South Dakota libertarian.

  33. Cory Allen Heidelberger Post author | 2018-04-03

    Thanks, Roxanne! A petition drive could use a good circulator in Pierre!

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