Novstrup, Perry Threaten Initiative Process with Unworkable Petition Font Rules

Two of my local legislators are firing the next shot in the South Dakota Republican Party’s war against initiative and referendum.

Senator Al Novstrup (R-3/Aberdeen) and Representative Carl Perry (R-3/Aberdeen) tell the Aberdeen American News that they plan to introduce legislation mandating the font size for ballot measure petitions:

Perry and Novstrup both said they plan to introduce bills requiring a specific font size for printed documents pertaining to ballot measures. Novstrup said documents for Initiated Measure 26, the measure approving medical marijuana, were printed in a font size that was difficult, if not impossible, to read without magnifying it. This measure spanned three petition pages and contained 96 sections [Elisa Sand, “Money, Marijuana Will Be Top Legislative Topics {paywall},” Aberdeen American News, 2021.01.08].

Here we go again. Back in 2018, after the dog-and-pony task force on initiative and referendum recommended mostly unhelpful ideas for direct democracy, the Legislature passed House Bill 1004, which amended multiple statutes to authorize the State Board of Elections to set mandate the size of both petition forms and the fonts thereupon. I argued at the time and maintain now that restricting the size of the papers on which we circulate petitions and the fonts we use to print initiative proposals effectively limits the length of ballot measures and unconstitutionally violates our right to propose measures for public votes.

I don’t know if the Board of Elections heard me, but so far, the Board has declined to adopt any such restrictions. (I thought they had adopted an eleven-inch-width rule, but I don’t see that anywhere in the administrative rules.) Apparently the Board has not seen any problem with allowing petitioners to use whatever size and shape of both fonts and papers to circulate their petitions.

The Board is wise. When petitioners resort to large sheets of paper and small fonts, they are simply trying to comply with another statutory requirement, found in SDCL 12-1-3, that every petition sheet be “self-contained.” Every word of a proposed initiative must appear on the sheet that a voter signs, alongside 356 words of state-mandated boilerplate, instructions, and circulator oath and up to 200 words of Attorney General’s explanation. Add a reasonably sized signature grid—say, ten signatures, with two rows each spanning the page to capture the printed name, address, town, county, and date required by law—and a standard 8.5×11″ sheet of paper, printed front and back, leaves room left for maybe 450 words of your own initiative language… or at least that what I’m able to get when I minimize the margins to half an inch; place my initiative text in 11-point Arvo; cast the boilerplate, instructions, and oath in 9-point Arial; and print the guide text in the signature rows in 6-point all-caps Times New Roman.

That style guide isn’t a problem for petitions like the Medicaid expansion petition Dakotans for Health is current circulating; their initiative text is just 171 words:

But if you’re proposing a complicated initiative, like 2020’s Amendment A (2,298 words) or  my failed 2019 People Power Initiative (2,568 words), and you’ve got two options: smaller fonts or bigger paper. If Al, Carl, or the Board of Elections say petitioners must use 12-point font and/or can’t use papers larger than 8.5×14-inch legal sheets, they would effectively be limiting the length of initiatives, meaning they would be limiting the policy changes citizens can make by initiative.

Suppose, for instance, that We the People wanted to initiate some of our own regulations on the shady trust business in South Dakota. The Legislature currently has two bills in the hopper dealing with trusts, Senate Bill 8 and Senate Bill 9. SB 8 is 1,599 words. Senate Bill 9 is 3,100 words. Printing just the text of Senate Bill 8 in 12-point Times New Roman font with minimal half-inch margins requires two full legal-size pages; Senate Bill 9 runs to four legal-size pages. To include all the state-required boilerplate and a mere five signature lines with the text of SB 8 on a single sheet of legal-size paper, I have reduce all the text to 9-point font (and that’s with some creative column layout). Rendering SB 9 as a single-legal-sheet initiative petition requires 7-point font. If Al and Carl require a minimum 11-point font (and they’ll probably both create a spectacle by waving their glasses in the air and demanding 14-point font for their fellow senior citizens), they make it impossible for the people to circulate a petition proposing exactly the same trust legislation as they will contemplate in the comfort of the Capitol.

And that’s what Republicans Al and Carl really want. These Republicans and their fellow members of The Club in Pierre chafe at the thought that we commoners may exercise the same sort of authority as they do in making laws. These Republicans want to crush any initiative petition effort with as much government red tape and bureaucracy as they can. These Republicans want to arrogate to themselves exclusive power over our lives.

This font-fuss comes from the same kind of Republicans who oppose mask mandates to prevent the spread of a deadly pandemic because it’s too hard to enforce. How do you plan to enforce font size? Are you going to send cops with rulers to measure the height and spacing of every letter on a petition on the street? If you specify certain acceptable fonts, are you going to train cops to recognize the difference between a legal Times New Roman from illegal Roboto Slab, Centabel Book, and Lora fonts? Are you going to measure character-spacing and line-spacing as well? If the printer at UPS scans my properly sized PDF and scales the layout down by a quarter of an inch, are you going to throw out my petitions? Are you going to have the Secretary of State check those measurements on every sheet in every petition packet submitted?

We should hope that these Republicans rediscover some scintilla of their professed conservatism and trust in the people. Let the people decide what they want to try putting to a vote and how big a font they want to use to explain that to voters. Let the people decide whether they like what they can read on the petitions and whether they trust the explanations they get from the petition circulators. Trust that most people, if presented with a petition they can’t read by a circulator offering flim-flam instead of facts, simply won’t sign the petition.

I agree that having to crowd lots of text onto grotesquely sized and folded sheets of paper is bad for the petition process. I agree that petitions should be easily legible to every voter. I thus propose a better solution. Instead of requiring that the complete text of every initiative petition appear on every petition sheet, let’s allow initiative petitions to feature only the title of the measure. That’s what we do with referendum petitions:

When we refer the bad bills that Al and Carl pass (and if their pass a font-fussing bill, we should refer it!), we just put the title and effective date of the bill targeted at the top of the petition and have the rest of the sheet for signatures. If signers ask what bill we are trying to put to a vote, we point to the title, whip out our phones, and show them how to look up and read the bill on the Legislature’s website.

We could easily do the same for initiatives. Require sponsors to file their official language with the Secretary of State. Require the Secretary of State to give each approved initiative petition a number. Post those initiative numbers with their titles on the Secretary of State’s ballot question website. Link those titles to separate pages showing the full text of each initiative (and do it in clean, searchable, copyable, screen-reader-friendly, ADA-compliant plain text, not scanned-image PDFs that won’t search or zoom or talk to text-to-speech apps!). Then when we’re circulating initiative petitions and people ask to see the actual text, we can point them to the official website and invite them to read the text on their phones or on their computers at home.

And you know what, Al and Carl? I’ll even offer you this compromise: if the Internet posting of initiative text is not enough, if you still insist that we have the complete initiative text on our persons, on paper, in writing, I’ll accept that. Require that we provide the full text of the initiative on the circulator handout that we must make available to each signer. Just allow petitioners to print and carry the initiative’s legal text on printed sheets or pamphlets separate from the petition sheet itself.

The real hang-up for us petitioners is the SDCL 12-1-3 requirement I mentioned above that each petition sheet be “self-contained.” I recognize that signatures must be attached to information identifying the initiative voters want to place on the ballot. If signature grids are on sheets separate from the identifying initiative information, I could collect signatures on blank signature grids by telling people I’m petitioning for free beer, then staple the 300,000 signatures I’d get to initiative petition sheets laying out my 50% income tax on South Dakota trusts.

If we can offer the full legal text of the proposed initiative in pamphlets separate from the legal title and signature grids of the initiative petition, as we can with referendum petitions, our formatting problems go away. We can print every petition signature sheet in nice fat 12-point font—and heck, I’ll even put the initiative title in 16-point font for clarity—and we can show interested signers the full text online on our mobile devices.

Senator Novstrup and Representative Perry are once again violating their conservative principles, promoting more big government and bureaucracy to restrict the Constitutional liberties of South Dakotans. Let’s reject Al and Carl’s font-fuss-budgetry and let the people keep their freedom to petition for a full range of better laws.