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.
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):
- Current state in which the petition circulator is licensed to drive, driver license number, and expiration date;
- Current state of voter registration;
- Length of time at current physical street address and previous two addresses, and whether the prior addresses were located in South Dakota;
- A sworn statement by the petition circulator indicating the circulator’s intention to stay in the state after the petition circulation deadline;
- Any other information relevant to indicate residency, including a library card or utility bill;
- Whether the petition circulator pays in-state tuition at any public postsecondary educational institution, if applicable; and
- 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.