Senate Bill 180, Senator Jim Stalzer’s retread of Representative Jon Hansen’s circulator registry and badges, was supposed to get a hearing in Senate Local Government yesterday, but it looks like they ran out of time and pushed SB 180 back to next Wednesday, February 19.
Good—that gives Chairman Jensen, Vice-Chair Duhamel, and the five other committee members, as well as the sponsors of SB 180, a chance to consider this vital amendment:
- On page 4, line 18, strike “;”
- On page 5, line 17, strike “;”
- On page 6, line 23, strike “;”
Why, with all the problems South Dakota faces and all the substantive issues the Legislature has to resolve, would I make a fuss about three semicolons?
Because those semicolons matter centrally to the clear meaning and application of this proposal, and because while billionaires pay big bucks to barristers to properly prune and punctuate their perpetual trust laws, ballot question laws have no such well-paid watchdogs, so here I am. Walk with me….
I’ve had some fellow ballot initiative and referendum advocates ask me if SB 180 applies to volunteer circulators. I’ve told them that, as far as I can tell, no, it does not. Sections 3 through 6 indicate that the bill intends to require pre-registration, fees, badges, and state-issued identification numbers of paid circulators only. As emphasized by the separate definitions in Section 2, SB 180 appears to intend to exempt volunteer circulators from any such requirements.
Sections 9, 11, and 13 indicate an intent to end the requirement that volunteer circulators give out any personally identifying information while they are circulating. Requiring such prior disclosure violates the Constitution and stifles volunteer recruitment. Sections 9, 11, and 13—applying identical language to the separate statutes on circulating petitions for initiated constitutional amendments, initiated laws, and referenda, respectively—strike the circulator’s name, e-mail, and phone number from the form that circulators must provide to every petition signer, thus ending the constitutional violation and the bureaucratic hassle of having to get the Secretary of State’s approval for each volunteer circulator’s customized handout. Paid circulators will still need to put their state-issued identification numbers on their handouts, but SB 180 appears to reset petition law to the long-standing-until-recently practice of allowing volunteers to get involved with petition drives immediately, without any pre-approval or forced disclosure.
However, Sections 9, 11, and 13 muddle this paid/volunteer distinction with one punctuation error. Let’s look at how SB 180 words and punctuates the new language concerning the circulator handout:
The Each petition circulator shall provide to each person who signs the petition a form containing the title and explanation of the initiated amendment to the Constitution as prepared by the attorney general; any fiscal note prepared pursuant to § 2-9-30; the name, phone number, and email address of each petition sponsor; the name, phone number, and email address of the petition circulator; and a statement whether the petition circulator is a volunteer or paid petition circulator and, if a paid circulator, the amount the circulator is being paid; and the petition circulator’s circulator identification number.
The semicolons throughout this passage, which appear in current statute, separate distinct items required on the circulator handout (title and explanation from AG; fiscal note; sponsor contact info;…). Those semicolons are properly deployed to delineate items in a complicated list. The last semicolon, the one added by SB 180, separates the identification number from the condition “if a paid circulator” and the information that condition requires. With that final semicolon, SB 180 would require paid circulators to provide their rate of pay, but then would require all circulators, paid or volunteer, to provide their circulator identification number.
Petitioners reviewing state law would get mixed messages. On reading SDCL 2-1-1.1, SDCL 2-1-1.2, or SDCL 2-1-3.1, volunteer circulators would read past that new last semicolon and think, “Oh, jeepers, I need to write my ID number on my handouts!” Conscientious volunteers would then scour through the subsequent ballot question laws, trying to find what ID number they’re supposed to use and where to get one, and they’d find nothing.
SB 180’s sponsors and Senate Local Affairs can avoid this confusion with one simple amendment: strike the final semicolons in Sections 9, 11, and 13. The statutes laying out the information required on circulator handouts would then read, “Each petition circulator shall provide… a statement whether the petition circulator is a volunteer or paid petition circulator and, if a paid circulator, the amount the circulator is being paid and the petition circulator’s circulator identification number.”
Dropping these three semicolons makes Sections 9, 11, and 13 align with the intent of the rest of the bill to distinguish volunteers from paid circulators. It also ensures we don’t end up in court (again!) for violating the rights of volunteer petition circulators. Dropping the semicolon is a small change, but it makes the law crystal clear for South Dakotans striving, as my friends and neighbors always do, to scrupulously follow the law while circulating ballot question petitions.
This bill is unworkable as written. Do they at any point define “paid petition circulator?”
What if you collect some signatures on a paid basis, but others on a volunteer basis? For example, what if you start out being a volunteer circulator, and then the sponsor offers you money toward the end to take time off your job and work full-time? What if you are offered gas money to drive to the State Fair to collect signatures? What if you collect signatures on an unpaid basis with the understanding that you might be paid something after signatures are gathered? What if you receive a hot chocolate or a pizza slice as a reward for a morning of signature gathering? What happens when a petition signer gives you $5 to buy lunch after a morning of signature gathering? This one actually happened to me. What if you are a paid executive director of an organization that supports the initiative and you collect signatures, but receive no money from the sponsor. Are you being paid to collect signatures? What if you take paid leave from your organization or business and you circulate a petition on your time off, are you being paid to circulate a petition? If the sponsor provides for free child care so you can spend three hours circulating a petition, is that paid circulation? If I as a paid petition circulator decide to pay a few dollars to a volunteer to collect signatures while I go in to the bathroom, is that paid circulation?
This is a vague and badly written bill, probably because the people writing it have absolutely no idea what’s involved in signature gathering on an initiative.
Let’s say it was going to be extended to candidate petition circulation. I bet they have some questions about what was paid/not paid?
Well, yeah, I read the bill. “Anything of value.” You notice how these corrupt legislators will swill down the free liquor at multiple social functions where they get lobbied, but that doesn’t count as corruption to them. But if YOU accept a cup of coffee while you are collecting signatures, you are now suspect and have to stop collecting signatures and undergo the vice grip of a fascist state. Yes, a free cup of coffee is something of value. Ri-effing-diculous. These people are nutcases. It’s a ridiculous bill, just as unconstitutional as the last effort.
What this bill does is outlaw voluntary circulation of ballot measure petitions. That violates the Constitution. If you accept a petition form, a pen or a clipboard from anyone, you have now passed over to being a “paid circulator,” as defined by this bill, because each of those is something of value. Now, to exercise your constitutional rights to petition for redress of grievances and to speak freely, you are required to sign up with Dear Leader, provide all your information and wear a badge. Since there is no law to protect you from harassment, that badge serves as a great targeting mechanism.
Imagine if King George III had the benefit of SB 180 as the patriots signed the Declaration of Independence on July 4, 1776. I can hear it now:
“Uh, sorry there, Thomas Jefferson, but you, my subject, must have John Hancock sign up here in London with my Minister, before, ahem, he can circulate that document. You see, you are providing that quill and that ink, which is, according to my decree, “anything of value,” to said Mr. Hancock so he can gather the signatures of the, ahem, assorted gentlemen, uhhaaaa, I say that, ahem, sarcastically, there gathered in Philadelphia. Oh here, wear this badge, so my redcoats can have an easy target. Ahhhahahhha.”
Rep. Jon Hanson is a modern day King George III, and he’s just as mad.
The best thing that could happen is that this bill gets turned into a complete repeal of all the anti-petitioning nonsense.
So, Cory, I’d say removing the three semi-colons is just the start of what needs to happen with this bill. It’s a mess, and it can’t be fixed. They need to repeal everything they’ve done and fix it so that it is constitutional. Get rid of all the nonsensical bureaucracy that’s been added since the 1990s.
Donald, you’re highlighting an important potential trap here. Is there any legal standard defining “thing of value”? Is there some minimum threshold making clear that a certain amount of basic office supplies don’t count? What if the petition drive simply “loans” all those supplies to circulators? Does a “thing of value” have to be something that federal law would require to be declared as taxable income, meaning that simple reimbursement for expenses (copies, postage, pens, etc.) would be exempt?
Could the state make a case to fry those volunteer circulators for pocketing ballot question committee pens?
The question of a volunteer transitioning to paid status came up in 2019 with the circulator handouts having to state volunteer/paid status. I had circulators who started as volunteers, for whom I had to submit for pre-approval forms saying their name and “Volunteer.” Then when I promoted a couple people to paid status, I had to submit new handouts for the same circulators reading “paid”. Now the SOS had no way of checking what forms the circulators were handing out, but I understood from the SOS that as long as we got the new “paid” form approved before the circulator started collecting on the clock for pay, there was no way to penalize the petition drive by disqualifying any of that person’s signatures.
Under SB 180, I would assume that a volunteer could circulate right away and would not need to put any ID number on her handouts or petitions. Before she could move to paid status, she’d have to register, pay the fee, and get a badge. Once she got her badge on, any petitions she carried and handouts she provided would have to have her ID number.
Suppose Jane volunteers until October 1, then circulates for pay in October. Her petitions with signatures from September and earlier would not have to have an ID number. But if the SOS sees petitions with October signatures and no circulator ID number form Jane, the SOS could throw those petitions out.
But what if Jane circulates for pay for eight hours on the weekends in October, then collects some signatures at work for free? How does the SOS distinguish volunteer and paid signatures in that situation?
I can do that. “If items in the list you are writing include commas, separate the items with semicolons.”
This looks like a good place for the latest Roger Cornelius memorial cartoon by Marty Two Bulls. 😁
Let’s say a sponsor hires me to conduct public relations. My job description says I’m to distribute the forced speech pamphlet that the Legislature requires and answer any questions the person I give the pamphlet might have. I am told, and my job description says, my job does not include gathering signatures. I politely ask people on the sidewalk, “Would you like to learn more about the initiative to celebrate mom, the flag and apple pie?” A person rushes up and says. “Sure, where can I sign?” I hand the person a pamphlet, and my job tasks are now complete. I have said nothing about collecting signatures. The sponsor is a very lenient boss, and allows me to choose when I schedule my breaks. You know, I’m a conscientious citizen who believes in mom, the flag and apple pie, and I’ve an interest in the sponsor’s initiative beyond just passing out the forced speech pamphlet. I decide, after I’ve presented the pamphlet and completed my public relations job, that, hey, I’ve earned a little break and I take some free time. On my free time now I say to the man I’ve presented the pamphlet to, “You know, I happen to have the petition you can sign right here.” I obtain a signature on the petition. Then I decide I’ve had enough free time, I can go back to doing my job.
We never used paid circulators, as it was understood then, in our initiative and referendum petitioning in the 1980s and 1990s. We did occasionally provide food. We had a few potlucks for supporters. But SB180 moves the goal posts by miles, not yards, on what is “paid circulation.” Under this bill there can be no voluntary circulation. No potlucks in church basements, because food is something of value, and so is the church basement. How anti-South Dakota and anti-religion is that? Everyone will be a paid circulator, because they have to get the petition from somewhere. Even if the petition is printed off at the circulators’ expense, there is still the intellectual property value of the words and concepts on the petition. There was a year or more of research going into our solid waste initiative. You think that wasn’t of value? “Anything of value” encompasses about everything in the world.
And then there’s this. Why aren’t the paid people who oppose the initiative required to obtain a badge? Isn’t this really just government favoring certain speech over other speech? Government seems to be putting roadblocks on some speech, but not on other speech. Is that what government should be doing?
I think not. I think that is more like Putin’s Russia than the United States of America.
This bill is still blatantly unconstitutional. Re-read this:
” “Circulates,” either:
(a) Physically presents … ; or
(b) Solicits from another person, personally and in the presence of such other person, a signature on a ballot measure petition, while acting in concert with another person who physically presents or otherwise makes available the ballot measure petition;”
Anyone who says “go over there and sign that ballot” is now a circulator and is bound by the laws to follow. If the speaker gets anything (is fed lunch?) by the host group, they are violating the law. Give me a break.
Donald, you posit a situation that exposes how hard it is to come up with regulations on petitioning that don’t (a) violate the Constitution or (b) make petitioning unworkable. Hansen and Stalzer don’t care about (a) and want (b).
So Poliglut, if we removed “or anything of value” and limited the definition of paid circulator to those who receive money, would SB 180 still be unconstitutional?
Hey! We’ve still got time to figure all of this out! This morning, Senate Local Government deferred SB 180 until Monday!