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Is There Any Way to Comply with the Circulator Affidavit Statute?

I offer my readers the following profound legal question about the absurd complications our Legislature is using to make citizen petitions unworkable:

My petition circulators all have to fill out circulator residency affidavits, one for the HB 1094 Referendum, one for the People Power Initiative:

This duplicative, onerous, and probably unconstitutional requirement was created by democracy-hater G. Mark Mickelson to force petitioners to prove they live in South Dakota and didn’t break the law while circulating. (Next up: Mickelson will bring a ballot measure allowing cops to ticket you when you get to work unless you provide an affidavit verifying that you did not speed on the way. Apparently Mickelson skipped the day Harvard Law covered presumption of innocence and burden of proof.)

SDCL 2-1-1.4 (which the People Power Initiative repeals in Section 5) dictates that “The following information shall be included in the affidavit:…” and includes in that list “Any other information relevant to indicate residency, including a library card or utility bill;….”

The opening says, “shall be included,” which clearly means the items listed are mandatory. But the “Any other information” clause is weirdly vague. My circulators are wondering: what does “any other” mean in this legal context?

  1. Can “any” mean “zero”? Does “any other” mean optional? Would it be like at the federal courthouse when the U.S. Marshals ask me to put my wallet, coins, belt, and any other metal objects in the scanner tray, and all I have is my wallet and belt and don’t put any other metal objects in the tray, I’m in full compliance with their order?
  2. Does “any” mean “at least one,” assuming that at least one such bit of residency-indicating information exists and thus must be included? If a circulator only fills the blanks and swears the oath on the affidavit but attaches no other information, are the affidavit and all signatures submitted by that circulator void?
  3. Could “any” mean “all”? I would think “any” and “all” are distinct terms: “any” can include “all”—if I invite you to eat any cereal in my cupboard and you eat all of it, I might be surprised, but I’ll accept that you hungrily took my words to their fullest possible meaning—but “all” doesn’t settle for “any”—if I ask you to do all of the breakfast dishes but you only scrub the spoons, I’ll bring you back to do the bowls. But there is legal precedence for reading “any” as “all”, in an “all-inclusive” and “unlimited” sense. So an enterprising anti-ballot question lawyer like Jon Hansen or Matt McCaulley who gets millions of dollars from Big Pharma to kill some popular initiative has case law spaghetti to throw at the wall claiming that our circulators must provide all relevant information that indicates residency.

Whether circulators submit zero, one, a couple, or every document they can scrounge from their shoeboxes may not actually matter. After listing all the information circulators must submit to prove that they are and will forever remain residents of South Dakota, SDCL 2-1-1.4 says, “The information included in the affidavit are factors in determining residency but are not determinative.” So apparently no matter how many documents circulators submit, clever lawyers and cranky judges could under that clause discount any evidence we present, deem any circulator an alien, and deem any petition invalid.

Uff da—commenters, can you salvage some coherent interpretation from this mess of a statute?


  1. Certain Inflatable Recreational Devices 2019-05-20 11:08

    G. Marky Molerat and all who voted for this piece of dog dung of a law should be given some shillelagh therapy.

  2. Richard Schriever 2019-05-20 11:35

    If I were a judge – I would conclude that the writer(s) of the bill/law really, really like words – but sentences – not so much.

  3. Cathy B 2019-05-20 11:46

    Sioux Falls folks, Don’t bother looking for your library card. They don’t have our names on them.

  4. Nick Nemec 2019-05-20 11:54

    In my case my second to last address was some off base house in North Carolina that I rented and last lived in in 1983. I don’t remember the address of this house and long ago threw out any paperwork dealing with it. Would my failure to fill in that line invalidate any petitions I might circulate? Other than my military service I am a lifelong South Dakota resident, and fairly well known in SD political circles.

  5. Cathy B 2019-05-20 12:05

    Nick, I think you should write on the form: “an off base house in North Carolina that I rented and last lived in in 1983, when I was serving my country in the military”. If you get denied for that, it will be great publicity for overturning these rules.

  6. Porter Lansing 2019-05-20 12:26

    Does SDCL 2-1-1.4 mean my buddy “Three Page Bill” can’t come back to SD and gather signatures, like he has for years? Pretty sure he and his crew worked for G. Mark to get his petitions completed. Last year the boss had to hire people with valid SD i.d.’s to stand near all the gatherers. The “standers” mostly texted on their phones, all day. Not that T.P.B would be disappointed. The boss had to bribe anyone who’d ever worked your state before to come back … even for a weekend. (The crew gets a buck a signature plus per diem.) However, Bill did get to meet Angie, whom he described as a very nice southern lady stuck in a marginal place to live. (If he goes down to Rapid again, I’ll make sure he has a meet up with grudzie.)

  7. Donald Pay 2019-05-20 12:50

    Yeah, I’d ignore the requirements of that law. Just circulate it, and take it all to court if there are any problems.

  8. grudznick 2019-05-20 17:33

    Do not be a scofflaw. Scofflaws never prosper.

  9. Debbo 2019-05-20 23:36

    Cathy B, I think your idea for Nick is excellent. 😁

  10. Cory Allen Heidelberger Post author | 2019-05-21 10:45

    Buck a signature—that’s illegal. I’ll bet if the current regulations remain in place (the ones we’re trying to repeal with the People Power Petitions), none of those out-of-state mercenaries will come back… which should, of course, mean more job opportunities for enterprising young South Dakotans….

    I would also love to see some of them provide evidence so we could bust Mickelson for hiring them and using the illegal standers. Then Mickelson could put his Harvard Law degree to use challenging the probably unconstitutional prohibition on non-resident circulators in court.

  11. Cory Allen Heidelberger Post author | 2019-05-21 10:48

    Cathy’s suggestion to Nick should be perfectly legal. The fact that he can’t recall exactly where he lived in 1983 has nothing to do with his obvious legal status as a South Dakota resident right now. I will happily challenge in court the rejection of any South Dakotan’s petition signature on the basis of their South Dakota circulator’s inability to provide a street address from someplace he lived 36 years ago.

  12. Porter Lansing 2019-05-21 11:00

    Enough, Heidelberger. You call circulating petitions for less than a buck an hour a job opportunity?
    What’s your reason that Americans from anywhere aren’t welcomed in SD to circulate petitions for things you want on your ballot? What darn difference does it make where the person holding the clipboard comes from? They influence no one and if they do then you have a bigger problem. It’s about providing the ballot with options for your voters to choose from. Does every airline pilot that brings travelers back home to SD have to be a resident. Every bus driver? Every truck driver that brings your food from California? Every combine crew that harvests your grain? Cory, you’re exhibiting the poor neighbor syndrome your state is now known for. Join America. We ex-pats are giving attention to South Dakota to try and keep it from being completely non-necessary to the rest of USA. Be thankful not insular like the shallow among you. Or … is petitioning more about Cory Heidelberger’s image than it is about the initiated measures? Hmmm.

  13. Certain Inflatable Recreational Devices 2019-05-21 12:24

    Porter, your posts are often hard to follow.

    Where did Cory suggest “less than a buck an hour?”

  14. Porter Lansing 2019-05-21 12:42

    CIRD … You’re probably not the only one that can’t always follow my posts. I’m sure it’s my inability and not other’s comprehension. I took the opening line “Buck a signature—that’s illegal.” to mean that in SD petition gatherers get less than a buck a signature … a paltry wage. If it’s true that signature gatherers get nothing (I don’t know it they get paid at all.) than the body of my post is even more demonstrative. In short, the state has become a very unwelcoming place with an insular foundation that often borders with paranoia, fear of new things, and downright pusillanimity towards outsiders.

  15. Debbo 2019-05-21 13:38

    “In short, the state has become a very unwelcoming place with an insular foundation that often borders with paranoia, fear of new things, and downright pusillanimity towards outsiders.”

    In short, I wish the exceptions to your comment outweighed the rule, rather than the inverse.

    SD has so much potential and the SDGOP puts so much effort into stomping that down … hard.

  16. Porter Lansing 2019-05-21 14:03

    Debbo … I’ll take a qualifier and say that my assessment is meant for the majority party and it’s voters. Every day lobbyists like Pat Powers and grudz/murph attack SD people with calls to beware of outsiders. Calls to fear new ideas from other places. It’s the electric shock collar put around the necks of unengaged voters (who have better things to do daily than follow local politics). Cory is almost always against these attempts to manipulate voters. He stands up vocally for ex-pats, continually. I only speak up because on this issue (so close to his life) he thinks only locals can responsibly determine what goes on a ballot. I say it’s the voter’s decision to vote for or against any initiative on their ballot, depending on that voter’s opinion. Complicating the freedom of speech to out of staters that are trying to put something on South Dakota’s ballot is saying, “The voters don’t know right from wrong. The voters need protection from big money interests!” and I oppose that thinking.

  17. Debbo 2019-05-21 14:18

    I would like to see “big money interests” out of politics entirely, sort of a purified politics, but I don’t know if that’s possible. *Money is not speech* and *If it doesn’t breathe, eat and eliminate it’s not people,* would be a good start, but politics based purely on ideas and policies, minus issues of unfair power and influence is very likely a nonexistent utopia.

    Therefore, let’s have federalized campaign regs so they are identical for each state, the above 2 rules that most of the nation supports and a bunch of other stuff that we could write in a separate post dedicated solely to that purpose.

    Ideas, suggestions, support, plans, projects, people, finances, etc. moving freely among the 50 states is an important part of what made the USA already great before Economic Eunuch came along and began diminishing this wonderful nation.

  18. Debbo 2019-05-21 15:41

    If the SDGOP really had the best interests of South Dakotans in mind, they’d be addressing this ASAP:

    By 2040 . . . . . .

    “The vast majority of the U.S. population (87%) will live in urban areas, according to UN projections.

    “The nation’s cities will likely continue to accumulate all the power, technology and wealth, while rural areas fall behind.”

    The numbers may not be exact, but overall, that’s a current trend with signs only of accelerating. Making such a beautiful state into one large, stinking, putrid feedlot, except for Dakota Dunes, of course, is a travesty, not an answer.

  19. Porter Lansing 2019-05-21 16:42

    Debbo-I’d like to see big, fringe, Ultra-Conservative money out of politics, too. I like the English system. My point is that some cycles there are all kinds of extreme things on our ballot (personhood for one) that get voted down severely and laughed at in the media. It’s not a case of out of state petition gatherers run amok. They’re just choices that happen in politics. If they pass they get challenged. It’s not that voters are stupid, like one lobby-weasel in Pierre claims.

  20. Cory Allen Heidelberger Post author | 2019-05-21 17:03

    Porter, I simply pointed out that paying per signature is illegal in South Dakota, regardless of the rate.

    My distaste for out-of-state circulators stems from the mercenaries who flooded the field for the payday lenders in 2015. They did not come to improve South Dakota. They came with no genuine care for the crafting of good laws. They came to make money, without regard for the fact that they were promoting a scam perpetrated by skeezy payday lenders who wanted to undermine a genuine grassroots petition drive from Steve Hickey, Steve Hildebrand, and Reynold Nesiba. Anyone who circulates a petition simply for pay and not out of a genuine interest in the issue being petitioned is no friend of grassroots South Dakota democracy. They are paid propagandists, as harmful to the process as the corporate advertisers on whom our corporate media rely for their quota of “information” about ballot questions.

    They nonetheless have a constitutional right to participate in the process.

    I recall a conversation with one paid circulator/organizer who was consulting on a measure I supported. The talk was not at all about the merits of the issue. It was not even about identifying aspects of the measure that might quickly appeal to signers. It was about marketing and hard-sell tactics to get people to sign. I recognize the practical need to gather signatures as quickly as possible. I nonetheless do not like the hard-sell tactics of the out-of-state mercenaries I’ve encountered and do not want them involved in my campaigns. I most certainly do not want them deployed in blocking campaigns against my genuine petition drives.

    I will support a lawsuit to overturn South Dakota’s ban on out-of-state circulators. I will accept the use of paid circulators as a necessity of contemporary ballot measures, especially when we are contending with the burdensome bureaucracy that we’re trying to repeal. I reserve my right to criticize people who participate in democratic processes for the wrong reasons and to prefer the model of hiring honest circulators who carry petitions because they believe in the cause and who take a paycheck because they couldn’t otherwise afford to spend eight hours a day in the field.

  21. Cory Allen Heidelberger Post author | 2019-05-21 17:05

    To be clear: we can pay circulators in South Dakota. We just can’t pay them per signature. We can pay them hourly (I’m offering $15/hour). We can hold them accountable with quotas and reward them with productivity bonuses.

    But I continue to wonder just how many documents all of my circulators, volunteer or paid, will be expected to submit to substantiate and affidavit whose declarations the law says will not be treated as final proof of residence anyway.

  22. Porter Lansing 2019-05-21 17:26

    Cory says: My distaste for out-of-state circulators stems from the mercenaries who flooded the field for the payday lenders in 2015. They did not come to improve South Dakota. They came with no genuine care for the crafting of good laws. They came to make money
    What youe subconscious is saying Cory is that SD voters will fall for anything and I need to protect them from themselves. You (on this issue) sound a lot like this lobby-weasel from Rapid City.
    grudznick 2017-07-12 at 19:49
    ~ …”Sloppy, sloppy, sloppy mess. This is why we should ban measures initiated by voters, who are “inherently stupid”, entirely.”
    grudznick 2018-11-01 at 17:15
    ~ W is wery, wery (sic) wrong.The sloppily written and unconstitutional IM #22 that was hoodwinked onto “ignorant voters” by heinous out-of-state interests is just like the wrong amendment W.
    ~ DakotaWarCollege – grudznick January 29, 2017 at 9:17 pm
    At least the people in Mr. Nelson’s district were “smart enough” to see through the hoodwinking and unconstitutionality and vast, bloated spending on politicians. At least District 19 voted NO on The IM #22.
    If circulators are getting paid, what does it matter where they come from? A signature is a signature. It’s the voters that make bad decisions (that must be challenged), not the circulators.
    -“Per-signature payment is often the most cost-effective method for collecting the hundreds of thousands of signatures needed to qualify a ballot measure. Eliminating this option will drive up the cost of circulating ballot measures, thereby further favoring the wealthiest interests.” – Gov.Jerry Brown

  23. Donald Pay 2019-05-21 17:42

    I’d like to suggest something. Go back to the future. Go back to doing it the way the I & R was intended.

    We never used paid circulators in the 1980s and 1990s. We never imported circulators from elsewhere to be “pretend South Dakotans” for a few months.

    Our efforts were grassroots volunteer efforts of South Dakota citizens only. We started from a place of inclusion. We had Democrats and Republicans involved. We had several meetings across the state to formulate initiative language, to solicit ideas and generate citizen activism. Our core group of petitioners could be counted on to gather 500-1,000 signature each. All were unpaid. Most of our volunteers were known and respected members of the communities where they lived, and we grew that volunteer base with every petition drive. At most we would reward volunteers with a cup of coffee or some pizza. Otherwise they got a phone call of thanks for doing a good job. We didn’t need to import anyone to circulate a petition, because we had done the community organizing work to be successful with volunteer circulators from South Dakota. These circulators cared about doing the job right without mistakes, so we didn’t need as big of a cushion.

  24. Cory Allen Heidelberger Post author | 2019-05-23 16:11

    My subconscious gets no voice in this discussion.

    “…SD voters will fall for anything and I need to protect them from themselves.” Incorrect. I said no such thing. The very issue and election to which I refer rebuts any such belief and supports my opposite belief, that South Dakota voters can see through big-money baloney and vote the right way on certain issues.

    I would certainly rather not have had Amendment U, the fake 18% rate cap, on the ballot. It increased the chance that voters could get the wrong information. Everyone is fallible, including the electorate. It is not wrong to want only honest measures placed on the ballot by honest means.

    But the opposition I expressed for the itinerant mercenrary circulator corps need not appeal to fear that the electorate could be hoodwinked. My opposition rests on the principles stated. Attempts at deception are still immoral, even if no one is deceived. Circulating a petition with no care for the issue, for the policy that could be created, or the consequences of that policy, even if there is no chance of that policy sneaking by an informed electorate, is still bad civic practice.

  25. Porter Lansing 2019-05-23 17:09

    No. It’s not bad civic practice. It’s proper civic practice. The voters decide the merits of an issue not a signature gatherer. e.g. A shelf stocker in a grocery store doesn’t decide if candy, beer, or mayonnaise is healthy. The customers decide. (Damn. Now you’ve got me using that damn Oxford comma when Mrs. Bolhouse in fourth grade specifically taught us it wasn’t necessary in America.) :0)

  26. Cory Allen Heidelberger Post author | 2019-05-24 06:54

    Don, I would like to go back to that model. A petition carried by more volunteer circulators has a touch more legitimacy than a petition carried by a few paid circulators.

    Porter, I’ll grant that the voters ultimately decide, granting sufficient legitimacy to every measure that passes. The comparison to shelf stockers is interesting, and worth exploring… especially when we consider, in the context of this post, that we don’t usually require that shelf-stockers be residents of any particular state. Let’s think about it more… but let me posit that there is a difference between candy, beer, mayonnaise, and the laws under which we live.

  27. Porter Lansing 2019-05-24 09:20

    I don’t see any more legitimacy in a volunteer carried petition. The legitimacy lies in the validity of the signature.
    This discussion is about requiring that SD petition workers being required to be residents and my view is that it’s wrong. Petitions are speech and freedom of speech knows no state borders.
    Also, the candy, beer and mayo are only items within the comparison. The comparison is between the laws under which you live and your personal health choices; both very important things.

  28. Cory Allen Heidelberger Post author | 2019-05-27 06:42

    Maybe we’re splitting hairs on the legal definition of legitimacy, but let me pursue this notion, noting from the top that I’m conceding that South Dakota’s law forbidding out-of-state circulators is likely as unconstitutional as South Dakota’s attempt to outlaw out-of-state contributions to the ballot question process.

    On legitimacy: do we feel that laws written by ALEC and promoted exclusively by paid lobbyists are as legitimate as laws written by our own legislators at the behest of constituents and supported in committee by the testimony of citizen lobbyists?

  29. Porter Lansing 2019-05-27 07:18

    Then, if Three Page Bill’s bosses company and their fellow petition gathering outfits decide to challenge the SD ban on non-citizen petition workers it has a chance of winning? Thanks for your proven winners opinion. :0)
    ALEC written IM’s brought to the ballot by bus loads of African Americans from Atlanta are just as legitimate as your IM’s brought to the same ballot. It happens in every state. SD is just overly protective or overly defensive of something that is open to all. i.e. Ideas we don’t agree all with.

  30. Cory Allen Heidelberger Post author | 2019-05-27 11:22

    Yes, Porter, such a lawsuit won in Colorado and has a chance of winning here.

    I don’t care to gamble my initiative and referendum on using any non-resident circulators to test the law in court. However, if any of my legitimate circulators are challenged for failing to provide all of the information vaguely demanded by Mickelson’s absurd statute, we will fry it in court.

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