SB 112: Remove Vague, Intrusive, Redundant Circulator Affidavit from Initiative and Referendum Petition Process

Economist and Senator Reynold Nesiba (D-15/Sioux Falls) is winding up for a one-two counterpunch to the Republican war on initiative and referendum. This morning I wrote about Senate Bill 102, with which Senator Nesiba nobly offers to surrender his own power and that of his colleagues as legislators in favor of the people’s power to make laws by initiative. This evening I turn to Senate Bill 112, which focuses on the petition side of initiatives and referenda.

In 2018, one of Reynold’s neighbors, then-Speaker G. Mark Mickelson, pushed the Legislature to pass 2018 House Bill 1196, which imposed a new paperwork burden in South Dakotans who circulate initiative and referendum petitions. Prior to 2018, initiative and referendum petitioners signed the same circulator verification at the bottom each paper on which they collected voter signatures as candidate petitioners do. In signing each petition sheet, circulators swear they witnessed each signature and followed the law in petitioning, and they give their address in case the state needs to check up on them afterward.

Mickelson decided to stifle the ballot question process, but not the petition process folks like him use to get on the ballot, by requiring ballot question circulators to fill out one more absurdly complicated and intrusive document. Mickelson’s law requires circulators and their sponsors to sign an affidavit and give the following:

1. Current physical address and two previous addresses along with the amount of time lived at each;
2. Driver license number and state;
3. Statements about their voter registration, hunting license, and college enrollment;
4. “Any other information relevant to indicate residency, including a library card or utility bill;….”
5. A sworn oath that “it is my intention to stay in the State of South Dakota after the petition circulation deadline.”

Just remembering one’s last address can challenge the memory of many good South Dakotans who haven’t moved for years. The vague language of this law puts signers of this affidavit in significant legal jeopardy. Even Republican Representative David Lust of Rapid City called Mickelson’s affidavit “terrible overreach” and “a litigator’s dream.”

Mickelson claimed that his affidavit was meant to stop out-of-staters from breaking our (likely unconstitutional) circulator residency law. Mickelson ignored the fact that the circulator verification at the bottom of petitions already serves that purported interest. The redundant paperwork he added to the process only adds delay and expense to the petition process, deters grassroots volunteers, and creates more technicalities on which anti-democracy forces like Big Pharma can throw out petitions signatures and prevent honest South Dakota voters from having their say on laws.

I tried to repeal that affidavit in my failed initiative petition drive last year, but hey, look how long it took me to explain the affidavit here, and then try imagining giving that same explanation amid the crowds at the State Fair.

Luckily, Senator Nesiba is a bit of an election nerd like me. He brings Senate Bill 112 to strike the redundant circulator affidavit and take us back to the circulator practices that seemed to work just fine before decades before Republicans decided to view your vote as a threat to their power. Senate Bill 112 looks long, with its four sections, but it does just one thing: repeals the circulator affidavit statute and strikes the references to it that are buried in all the other requirements piled on folks who petition for initiatives and referenda.

SB 112 deals with a new and arcane document that maybe only a few hundred South Dakotans would have to sign during any given year.  But that’s a few hundred too many having to sign redundant paperwork designed to get in the way of people participating in their democracy. Whether you’re a liberal who likes more opportunities for people to petition and vote or a conservative who hates paperwork and bureaucracy, Senate Bill 112 is good legislation.