Just One Change to Improve Initiative Process? Roll Back Rules to 2001…or Insulate Initiatives and Process from Legislative Changes

A casual reader asks me to name the one change I would make to the initiative process.

One? Ha! If you review the “People Power Initiative” that I proposed but failed to collect enough signatures for in 2019, you’ll see that there are all sorts of changes I would like to make to the initiative process.

It’s hard for me to boil down initiative reform to just one change I would like to make, because the nature of the Republican effort to undermine initiative and referendum has not been wholesale repeal but slow frog-boil, small changes dealing with technical details that very few people (including legislators) understand or notice but which gradually build into a bureaucratic and legal mess that makes the process so complicated (or, as I struggle to work the frog-boil metaphor, so hot) that fewer and fewer grassroots activists can survive it.

Consider the three laws I’ve had to fight with two federal lawsuits:

1. In 2019, I challenged Initiated Measure 24 in court. IM 24 didn’t seek to outlaw initiatives and referenda, but Mark Mickelson cleverly proposed gutting the process by banning out-of-state contributions to ballot question committees. Because of all the bureaucracy and grounds for legal challenges that Mickelson and the GOP have imposed, you can’t circulate a petition and campaign statewide to promote a ballot measure without getting huge sums (at least six figures) of campaign contributions. Promoting liberal measures (minimum wage, campaign finance reform, marijuana legalization, anything that challenges the SD status quo) usually requires getting huge sums from out-of-state supporters who won’t face local retribution from South Dakota leaders. Mickelson put IM 24 on the ballot to take away that vital support and thus make a huge percentage of ballot question campaigns unviable against the SDGOP money machine.
2. I then challenged 2019 House Bill 1094 in court. HB 1094 required ballot question petition circulators to register with the state and wear ID badges while circulating. HB 1094 left the entire structure of I&R in place, but it threw an enormous roadblock to recruiting volunteers to participate in the petition drive. The registry and badge created concerns about circulator privacy and safety. They also created legal liability that scared people from participating in petition drives.
3. I also challenged in federal court the 12-month deadline for submitting initiative petitions. The deadline used to be the first Tuesday in May, making it possible to circulate initiative petitions during and after the Legislative Session during an election year, to bring people’s attention to issues the Legislature hadn’t addressed during the campaign season. But in 2006, the Legislature moved that deadline up to first Tuesday in April, and in 2009, the Legislature moved the deadline all the way up to twelve months before the general election, denying circulators six valuable months of circulation time. That measure, combined with other delays built into the process since then, have meant people like Rick Weiland might have to circulate their petitions up to two years before they would go on the ballot, meaning two years before most voters are even thinking about the coming election.

Ban on out-of-state contributions, circulator registry and badges, earlier petition submission deadlines—these nickel-and-dime changes don’t constitute outright repeal of the right to initiate and refer laws. They don’t affect the daily life of anyone in South Dakota but the handful of activists who participate in initiative and referendum campaigns. But these nickel-and-dime changes add up to fewer people being able to start and execute successful ballot measure campaigns and ultimately fewer opportunities for the people to vote directly on laws and their Constitution. And these changes are hard to challenge: even when we do successfully beat just one of them, like 2019 HB 1094’s circulator registry and badges, the Legislature comes right back with a similar measure—see 2020 Senate Bill 180, a modification of the circulator registry and badges—that requires defenders of initiative and referendum to launch a whole new federal case.

If I could cheat on my reader’s question, I’d say the one change I would like to make is to roll the rules surrounding initiative and referendum back 20 years. The initiative and referendum process worked fine in 2001; the Legislature since then has imposed multiple bits of paperwork and bureaucracy that have priced the grassroots out of the process and led to greater domination of the process by big-money organizations and paid circulators. In 2001, we could circulate initiatives until May before the election. Circulators didn’t have to carry and hand out information sheets approved by the Secretary of State. Sponsors didn’t have to wait for and disseminate fiscal notes with their petitions. We didn’t have Al Novstrup’s absurd new requirement that petitions be printed in 14-point font. We didn’t have a constitutional single-subject rule that renders every proposed amendment vulnerable to expensive litigation or a hostile, partisan Secretary of State’s unilateral rejection. We didn’t need to wait seven months to enact voter-approved initiatives; we were able to put new laws and amendments into effect the week after the vote. (Those are just examples: the Legislature has passed many more bad laws concerning I&R over the past 20 years.)

In 2001, we trusted the voters to evaluate petitions and ballot measures and sign or vote for those that had merit. Now the entire system is rigged with ways for opponents (i.e., Republicans) to keep measures from ever coming to a vote.

If I try to answer the question as the reader intended, with a proposal for one change rather than a rollback of multiple little changes to the better state of affairs in 2001, I’ll offer one proposal with two parts:

Require that all changes to the initiative and referendum process and to enacted initiatives be approved by a vote of the people.

1. If the Legislature seeks to change any other aspect of the process for proposing, petitioning, campaigning for, voting on, or enacting initiatives and referenda, those changes would be referred automatically to a vote of the people.
2. If the Legislature seeks to amend any initiative passed by the voters, such change would be automatically referred to the ballot at the next statewide election.

Such a change would insulate the people’s vital checking power of initiative and referendum from Legislative interference.

Now I recognize that the people aren’t perfect. The voters have passed boneheaded measures like the 2006 gay-marriage ban (which Judge Schreier negated in 2015), 2018’s IM 24 (which I challenged and Judge Kornmann negated in 2019), and 2018’s Amendment Z (the single-subject rule that just blew up Amendment A). They may occasionally pass measures with fatal flaws that require repair (like 2016’s Amendment S, Marsy’s Law, which was crappily written and required amendment via Amendment Y in the 2018 primary) or which fail to deal with evolving conditions. I am thus open to practical amendments to the second half of my general principle. We could, for instance, set a time limit on how long initiatives and referenda can’t be touched by the Legislature, so that our lawbooks don’t become a convoluted mess of statutes that the Legislature can’t amend. I could accept an emergency exception where, if an initiative turns out to have some surprise error that utterly befouls government operations, the Legislature could change it by some supermajority vote (although, given South Dakota’s one-party regime, I might not accept such a compromise unless the vote was some ridiculous consensus from both chambers, like 90% or higher).

But changes to the process itself should remain entirely out of the Legislature’s hands. The Legislature gets to set its own rules of procedure; the people should get to set their own rules for initiative and referendum.

The idea of making just one change to preserve, protect, and promote a vital democratic process misses the point of democracy. No important issue is ever “one and done.” Democracy requires constant work from constantly engaged citizens dealing with constant change and, in South Dakota, constant resistance from the powerful opponents of democracy.