Sioux Falls City Attorney Snaps Fingers, Changes Petition Rules for Charter Amendment

It’s not just the Legislature that wants to stifle citizens’ ability to petition and vote directly on the laws under which they live. The City of Sioux Falls has taken the stunning anti-petition position of changing the rules for petitioners by fiat in the middle of a municipal petition drive.

On Friday afternoon, City Clerk Tom Greco informed petitioners seeking to amend the city charter that they need to get signatures from 10% of eligible voters, not 5% as specified in the city charter, and that only the fifteen sponsors of the petition may circulate their petition, not any additional volunteers. These remarkable strictures come not from any council action or change in ordinance or vote of the people but from the judicially untested opinion of the city attorney:

But a recent opinion of the Sioux Falls city attorney, requested by the city clerk’s office, has put the validity of that part of the city charter in question.

City Attorney Stacy Kooistra said because the charter is less stringent than state laws relating to petition drives, the state laws win out. That means Triple Check the Charter would need signatures of 10% of registered voters in a jurisdiction.

“Accordingly, and because the city is required by law to follow the more stringent standard (SDCL 6-12-5), the number of signatures required shall be based on provisions set for in the State Constitution,” City Clerk Tom Greco wrote in a letter sent to “Triple Check the Charter” members Friday [Joe Sneve, “A Group Wants to Change How City Government Works. Their Task Just Got Harder,” that Sioux Falls paper, 2019.08.19].

Let’s look at the city’s petition-stifling claims separately.

Sioux Falls City Charter Section 8.01 requires that petitions to amend the charter “must be signed by registered voters of the city in the number of at least 5 percent of the total number of registered voters at the last regular city election.” City Attorney Kooistra has decided that provision is invalid because it conflicts with South Dakota Constitution Article 9 Section 2, which declares, “Not less than ten percent of those voting in the last preceding gubernatorial election in the affected jurisdiction may by petition initiate the question of whether to adopt or amend a charter.”

Those two provisions clearly conflict, and the city shouldn’t have to appeal to SDCL 6-12-5 to resolve it: city ordinance cannot supersede the state constitution. But the constitutional 10% requirement seems problematic. Why mingle a local election process with a tally from a state election? The Sioux Falls charter seems to offer a more locally relevant and up-to-date signature threshold by tying the count to local elections in which local voters respond to local issues.

The city’s 5% requirement also is not clearly “lower or less stringent” than the state’s 10% requirement. 5% of registered voters at the time of the last city election is not automatically lower than 10% of votes cast in the last gubernatorial election. Sneve reports that the proposed rule change would not double the signature requirement but only raise it about 30%, from about 5,200 to 6,729. If voter turnout in one mid-term, gubernatorial election were particularly low and were followed by a spike in voter registration for a barnburner mayoral race or Presidential election, 5% of all registered voters at a city election more recent than the last gubernatorial election could exceed 10% of the folks in town who last bothered to cast a vote for governor.

The above observations on the mingling of city and state election figures and the misalignment of participating versus registered voter counts take more reading into text than I’d care to take before a judge. But the simpler point may be that the city has its written rules, and the city has to follow them. The City Attorney can’t unilaterally declare the city charter null and void and more than the Attorney General can unilaterally decide he’s not going to follow the state constitution.

Restricting circulators to the fifteen members of the petition committee seems more patently absurd. There is no analogy to this restriction in any other state or local petition drive: statute and ordinance everywhere in this state anticipate that the sponsors of a petition will handle filing the petition and recruit lots of volunteers (or even hire people) to carry petitions and collect signatures. Grassroots participation is the basic idea of the initiative process: all citizens get to participate equally in amending the laws under which they live.

To pull off this remarkable suppression of civic participation, City Attorney Kooistra appears to be parsing this language from Sioux Falls Charter Section 8.01(d), which says charter amendments may be framed and proposed “By the voters of the city, when any 15 qualified voters initiate proceedings to amend the charter by filing with the city clerk an affidavit stating they will constitute the petitioners’ committee and be responsible for circulating the petition and filing it in proper form, stating their names and addresses and specifying the address to which all notices to the committee are to be sent, and setting out in full the proposed charter amendment.” Evidently, Kooistra believes “be responsible for circulating the petition” means actually circulating the petitions themselves.

That interpretation is bunk. I am a statewide ballot question sponsor. I am responsible for the circulation of my petitions. That does not mean I circulate every petition myself. That does mean I recruit, approve, collect and submit the work of, and bear legal responsibility for actions taken by my petition circulators.

That the Sioux Falls charter requires fifteen people, no more, no less, to sponsor a charter amendment petition seems unnecessarily complicated. To then expect that only those fifteen people would carry petitions and forbid other citizens from joining the petition drive likely never crossed the framers’ minds. More importantly, such a requirement unconstitutionally restricts core political speech. Once a petition hits the street, anyone can grab a copy, collect signatures from friends and neighbors, and add those signatures to the count. The City of Sioux Falls cannot restrict by ordinance, charter, or city attorney’s Friday afternoon opinion the right to petition to a mere fifteen citizens.

The number of signatures the “Triple Check the Charter” Committee needs to put its amendments to a vote is open for debate. But by telling over one hundred thousand registered voters in Sioux Falls that they cannot circulate a petition, the City of Sioux Falls is inviting a First Amendment fight that it will lose.