Last updated on 2020-03-20
Posts on SD Voice v. Noem II Trial:
Secretary of State Can Meet Later Petition Deadlines
Among other things, my lawsuit against South Dakota’s excessive restrictions on ballot questions (SD Voice v. Noem II, heard December 9 by U.S. District Judge Charles Kornmann here in Aberdeen) seeks to overturn the one-year deadline for submitting statewide initiative petitions. I contend that requiring citizens to collect the necessary signatures to place an initiative on the ballot an entire year before the election unfairly burdens our exercise of that constitutional right. The state’s primary response has been that the Secretary of State is too busy during an election year to accept new initiative petitions.
But when my attorney, Jim Leach, asked the Director of the Division of Elections and the defense’s star witness, Kea Warne, if the Secretary of State’s office would be able to handle initiative petitions submitted as late as June during the election year, Warne said yes.
Let’s back up and work through the testimony.
I was the first witness to speak to the one-year deadline. Under examination by Leach*, I explained that, beyond the practical disadvantage of denying us several months in which to educate voters and collect signatures, the one-year deadline hinders the ability of citizens to exercise their right to initiate laws and constitutional amendments in two important ways. First, it’s easier to get signatures during an election year because more people are paying more attention to Legislative issues. Second, forcing citizens to submit initiative petitions by November of 2019 denies them the opportunity to float initiatives in response to actions or inactions of the 2020 Legislature when the issues are most ripe.
I cited industrial hemp as an example. Many voters are watching the Legislature for action on hemp in 2020. If the Legislature fails to pass a hemp bill, many voters will be inclined to put the issue on the ballot and let voters decide it. However, current law requires those interested hemp advocates to wait until November 2020 just to circulate a petition and makes voters wait until 2022 to vote on it. The one-year deadline denies advocates the opportunity to speak out and petition on important issues like hemp when they are most prominent in voters’ minds.
On cross-examination, Assistant Attorney General Holly Farris, assigned the unenviable task of defending the state’s oppressive ballot question laws, asked me if people disappointed with the 2020 Legislature could still refer laws to a statewide vote in 2020. I said sure, but that only applies to laws the Legislature passes. We can’t refer laws that don’t pass. The one-year initiative deadline prevents us from acting in a timely fashion on issues the Legislature fails to address.
Leach also asked me about other states’ initiative petition deadlines. I noted that at least seventeen states accept initiative petitions during the election year. In 2020, North Dakota’s Secretary of State takes initiative petitions through July 6. In Colorado, the deadline is August 3.
Farris brought Warne to the stand to list all the duties the Secretary of State’s office has to carry out during an election year. Warne talked about preparing and validating candidate petitions, printing and distributing ballots, training local election officials, staging run-off elections after the primary, and other tasks. In an apparent response to my note about other states’ being able to process initiative petitions during an election year, Warne noted that South Dakota has one of the smallest state election staffs (Warne said she supervises four election workers in elections; she said the office has fourteen staff total) and can only afford to dedicate two hours each day to petition validation. In 2018, the Warne’s office needed over five months, until April 16, to process eight initiative petitions; in 2016, the office processed ten initiative petitions by February 3 thanks to hiring temporary staff. Warne testified that forcing the Secretary’s small staff to do that detailed work any closer to the general election could cause them to fail to meet certain federal guidelines, like offering 46 days of absentee voting for overseas soldiers.
Judge Charles Kornmann interrupted Warne’s testimony on the inconvenience of reviewing petitions during an election year to say he is “skeptical that’s a valid defense.” On cross-examination, Warne gave good reason for such skepticism.
On questioning from Leach, Warne acknowledged that while the Secretary’s office calculates the total number of signatures on an initiative petition, it only validates a much smaller random sample of signatures determined by a statistical formula. Leach noted that on petition for Initiated Measure 26, the prescription price drug cap that Big Pharma spent millions keeping off the 2018 ballot, the state checked only 710 signatures (out of the 22K+ signatures calculated to have been submitted). Warne acknowledged that in 2015, the Secretary of State’s office processed two statewide referendum petitions in two days. (Warne and then Secretary Shantel Krebs provided same-day validation on my 2015 SB 69 petition; they verified the youth minimum wage petition by mid-afternoon the next day.) Warne acknowledged that back before 2009, her office managed to process many initiative petitions during election years (pre-2009, the deadline was first Tuesday in April; pre-2006, it was first Tuesday in May).
Leach asked Warne about the impact of Libertarians v. Krebs, a case which found that a late March deadline for new parties to submit petitions of organization and candidacy was unconstitutionally early. That’s four and a half months more than initiative petitioners are given to get on the ballot, and even that was thrown out in federal court, because, Judge Lawrence Piersol ruled, it denied third parties the chance to “capitalize on the disaffected group of voters created only after the major parties platform and candidates are known.” Leach noted that an employee of the Secretary’s office had offered similar testimony in that trial about the burdens the state would face in managing elections if third parties were given a later deadline. Leach asked Warne if she was that employee; she said she was. Leach asked if the Secretary of State’s office had managed to comply with the changes to the law (including allowing new alternative parties to organize as late as July 1 and file candidate nominations as late as August) forced by Libertarians v. Krebs; Warne said it has.
Leach pointed out that 2019 House Bill 1094, the other major legislation our lawsuit is trying to repeal, imposes new requirements on the Secretary of State’s office. He asked if the office will be able to comply with those new requirements; Warne said yes.
Leach then asked, if this lawsuit is successful and the initiative petition deadline is moved back to June, will the Secretary’s office comply with that new deadline? Warne said yes.
Farris attempted to redirect, asking Warne to acknowledge that allowing later petition submissions could increase costs, decrease time to focus on petition verification, and put “accuracy and efficiency” at risk. Farris also noted for Warne’s acknowledgment that the federal requirement of 46 days of absentee voting for overseas soldiers didn’t exist before 2009, when we moved the initiative deadline back to one year prior to the election.
Leach re-redirected, citing Warne’s testimony about hiring additional temporary staff, and asked again if the Secretary of State’s office would comply with laws setting a later deadline. Warne said yes.
In his closing remarks, Judge Kornmann repeated his skepticism about the state’s defense of the one-year deadline. Cost to the state, said Judge Kornmann, does not justify unconstitutional action.
Judge Kornmann promised a ruling by January 2.
* * *
*Note from the Witness: I recognize that I do not report my own testimony as effectively as I can report the testimony of others. On these rare occasions when I have the privilege of sitting in front of the bar, I take copious notes on the statements of the witnesses, the lawyers, and the judge. However, when I take my oath and speak from the big chair next to the judge, I don’t bring my notepad. I’m focused on listening and responding truthfully to the questions, not recording my answers. For a full picture of my testimony, you’ll have to ask someone else who was sitting in the courtroom, or [UPDATE 2020.03.20] read the full courtroom transcript!
I know Kornmann was a lobbyist at the time the process for initiatives was changed (and the deadline moved from the Legislative session to after the session), so he probably remembers the arguments made then.
The way it used to work (before 1986, I think) was that initiatives petitions were to be validated at a point before the Legislative session ended. This was because the Legislature was required to vote for a Joint Resolution to put the measure on the ballot, or to enact the measures as is. Several controversial initiatives occurred in 1984, including the nuclear waste vote and the nuclear freeze. Legislators began to question why they were required to vote “yes” on the Joint Resolution, since they felt their “yes” vote might be misinterpreted as support for the measures. Their concern dovetailed with the concern of the sponsors of these initiatives that the Legislature might balk at putting an initiative on the ballot, causing a constitutional crisis.
Thus, a compromise of sorts resulted in a change of process, which also meant a different deadline that made more sense could be fashioned. Under the new procedure, the Legislature would not be required to pass a Joint Resolution to put an initiative measure on the ballot. It would go to the Secretary of State for validation, and the SOS would then have the authority to place the measure on the ballot. With the Legislature out of the process, it made sense to move the deadline to after the session.
Why the deadline extention? This was more convenient for the SOS office at that time. Some in the Legislature, somewhat cynically, thought the extended deadline would keep pesky citizens out of the legislative session and out collecting signatures. Citizens thought that process made more sense and the deadline change would have pluses and minuses from what was done before.
I collected signatures before and after the change. The change meant that the principle time of signature gathering would move from the better weather of summer and fall into the winter and spring. I didn’t find that made it any harder or easier to gather signatures. If you have an issue of interest the time of year has little impact on signatures.
As someone who was part of researching and drafting initiatives, I found the later deadline better. The nuclear waste vote initiative had to be started in the middle of a interim study on the nuclear waste issue. That was unfortunate. We would have liked to have been able to have had the benefit of the conclusion of that study prior to beginning our initiative. Perhaps we could have foregone the initiative if we could have worked up a compromise.
During the mining and waste issues, we had the benefit of the later deadline, which allowed for time to work more closely with Legislators and state regulators to fine tune our measures and to be more timely with our measures.
If the Legislature has no need to be involved in the process, as is the case since the mid-1980s there’s no need to have the deadline occur before the session. It should be moved back to the early spring, where it can be more timely.
Good summary, Mr. Pay.
Interesting, Donald, that you found time of year didn’t make a difference in your ability to get signatures from interested voters. I can see where simply having more times available makes it easier to catch more people when an issue is of interest. Right now, the early deadline prevents us from capturing issues that become of interest during the election year legislative session. The early deadline also prevents us from dealing with issues like you talk about that are subject to an interim committee study. Right now, we have to start our petition Drive before the interim committee has Issued its findings. Move the deadline to after the last session before election, and we have more information available, more chance to see what the legislature will take action on, and thus more ability to focus on issues that have been left undone with more information at our disposal. It seems that a later deadline is good for everybody. It’s even good for skilled petition checkers who can get temp jobs with the secretary of state.
Good job Cory. Thanks for your report.
I can see your point, Cory. If you want to go to the legislature first to see what they do with an issue, and then initiate if you don’t get something in the ball park of what you want, you are screwed for a couple years. I suppose it depends on your issue, and how much you trust the legislature/governor. We just never had that much trust that Pierre would deal with our issues positively.
We had a different strategy. We operated under the assumption that the legislature and the state administrative processes would not act favorable unless we were bringing pressure of the initiative. We would start the initiative right around the beginning of a session or a little before. We expected the legislature would treat our issues like dung, and they never disappointed us.
One thing that is different is we didn’t have to deal with the unnecessary up-front bureaucracy to get our initiatives on the ballot, which is all nonsense and unconstitutional. All that stuff should go.
Mr. Pay, it is sad that the City of Pierre did not treat your issues with the respect you feel they deserved. Some of your issues probably didn’t deserve much respect, some probably did. It should be up to the Common Councils of the City to respond to that, not grudznick.
However, how the legislatures played tetherball with your perpetually-nuclear issues is something you should grind your teeth upon. Those damn bossturds in the Environment Department have jammed many a sharp stick up the rectums of numerous initiators.
It does not change the position of most paid lobbists and the powers that run the world that they should sharpen more sticks. So. Just sayin…
“We expected the legislature would treat our issues like dung, and they never disappointed us.”
That’s kinda funny, but mostly sad.
Great summary, Cory, and it’s beyond wonderful that you and Jim Leach are doing this–it’s God’s work, and I’m not religious! ;-)
Here’s an irony: Speaker Mark Mickelson (and other legislators), complained endlessly about out of state circulators, out of state donors paying for circulators (although, oddly, he never complained about out of state donors contributing to our South Dakota politicians–hmmmmm…), but the reality is that the ridiculously and nonsensically early petition signature deadline virtually ENSURES that a sponsor has to turn to out of state donors and circulators. I’ve never done a study, but I can almost certainly guarantee that South Dakota has the earliest petition signature deadline of any ballot initiative state in America, and I bet it’s not even close. Unsurprisingly, Speaker Mickelson’s concern about out of state donors/circulators never compelled him to introduce legislation to extend the petition signature deadline to a reasonable date–making one almost think that his concern had little or nothing to do with out of state donors/circulators, and a great deal to do with wanting to make ballot initiatives much, much harder to successfully get on the ballot.
I agree with Drey. Cory and Jim Leach are standing up for the People of South Dakota, while dreck like G. Marky usher in special interests to the back rooms of the Capitol Building.
I agree with Drey about the deadline, too. My preference is April or May, but March 1 or March 15 would work, too. I don’t think the deadline matters as to the out-of-state issue, though. I think that is more about finding a date that works for South Dakota’s citizens and for the SOS office, not for goofballs in the Legislature and the lobbying class who want to shut out the citizens from the initiative. It’s about customer service. Why needlessly disservice citizens? It’s not good government, but it’s good for the out-of-state special interests.
The big driver of out-of-state participation is the unnecessary bureaucracy, which tends to tilt the process against grassroots South Dakota citizens and requires a larger, well-funded operation. That almost inevitably means more out-of-state participation.
I understand the hypocrisy of G. Marky on the out-of-state issue, but I agree that as much as possible given court decisions, the initiative process should work for the citizens of the state. Historically, that’s why it’s in the South Dakota Constitution in the first place. But what has been added to the process since the 1990s has encouraged more out-of-state participation, not less. It’s time to repeal most of those statutes on the initiative process added since the 1990s, when the process actually worked for in-state South Dakotans.
Adopt electronic petitions, provide instant signature verification, and I could walk into the SOS office (or better yet, just hit the Submit button from the convenience of my iPad) on August 7 with a completed initiative petition, and the Secretary would already know every signature is good.
The one-year deadline is based on 19th-century assumptions. It’s time to run 21st-century elections. Update our practices, and make everyone’s deadline August.
I think electronic petitioning ought to be piloted. I can see potential problems with hacking or software glitches, but it’s worth looking at.
I could see doing a dry run pilot project with, for example, some high school students. Maybe someone should meet with the SOS office, tech experts and some high schoolers across the state to see if they could develop and test this out. This would be a great hands-on way to teach civics, and pilot something that could be the future of South Dakota and the nation.
Well done! The State’s defense sounds like whining!