We have our first Legislative attempt to further hamstring initiative and referendum in the 2023 Session… and I can’t really oppose it.
Senate Bill 46, requested by the Office of the Attorney General and sponsored by the all-Republican Senate Judiciary Committee, would create a new crime, “petition circulation perjury”, and punish that crime as a Class 6 felony.
SB 46 appears to apply to circulating petitions for ballot questions and candidates. Section 2 reads as follows:
Any person who, having taken an oath attesting to having personally circulated any petition to initiate an amendment to the Constitution, initiated measure, referred law, or to nominate any candidate for any political office, states, intentionally or contrary to the oath, any material matter that the person knows to be false, is guilty of perjury pursuant to subdivision 22-29-5(3) [2023 Senate Bill 46, original form, introduced 2023.01.06].
I assume this clause relies on a lot of context, because the words alone appear to say that if a circulator ever lies about anything, boom! that’s perjury. The qualifier “intentionally or contrary to the oath” seems to break the scope of this law away from the oath on the petition to apply also to any intentional statement of falsehood. We can hope that the lawyers or the Supreme Court will tell us that “any material matter” means in this context “any matter material to an inquiry into the faithful execution of the oath on the petition circulated.”
Section 2 applies this new form of perjury to ballot question petitions and candidate petitions equally, which is nice to see, given legislators’ focus on quashing initiative and referendum petitions and past failure to equally apply petition restrictions to the folks who circulate the nominating petitions that place those legislators on the ballot. One could even argue that legislators are going easy on ballot question petitioners compared to their own nominating petitioners: Section 1 applies petition circulation perjury only to the portion of the circulator’s oath in which ballot question petitioners attest that they personally circulated the petition. Section 1 says that lying about the other elements of the circulators’ oath—I collected every signature on this sheet, I live in South Dakota, I asked all of the signers if they are registered South Dakota voters, and I didn’t break any laws while circulating—remain only Class 1 misdemeanor infractions. (I’m not sure how statute can distinguish circulating the petition from collecting the signatures on the petition—in my mind, circulating includes collecting, but current statute evidently sees a distinction.) SB 46 doesn’t mention the specifics of the circulator oath on nominating petitions, which is shorter and less specific than the circulator oath specified for initiatives, referenda, and amendments. So while SB 46 only felonizes violations of one portion of the ballot question petition circulator’s oath, it felonizes violations of any part of the candidate petition circulator’s oath.
But we know and Senate Judiciary knows that circulating a candidate petition to get a several dozen signatures to run for local office or Legislature or a couple thousands signatures to run for statewide office is not as hard as collecting tens of thousands of signatures to place policy on the ballot. With the higher signature counts and all the extra paperwork and bureaucracy that Republicans have piled onto the initiative and referendum process but not onto the candidate filing process, successful ballot question petition drives require enormous expense, more circulators, and usually hired circulators. Telling potential circulators that making false statements related to the petition can land them in prison for perjury is one more way to scare off potential circulators.
Of course, Republicans know that this particular hindrance to circulating petitions is one that conscientious direct democracy advocates can’t really oppose. Senate Bill 46 talks about oaths, and oaths matter. Violating an oath should be perjury.
But one could argue that it already is. Annette Bosworth got busted for perjury for swearing a false circulator’s oath (the Supreme Court reversed the perjury convictions due to weaknesses in the case, but the Court upheld convictions for filing false documents). So was Clayton Walker. Chad Haber was charged with perjury for the same crime and escaped felony punishment with a plea bargain. If we can already charge petitioners with perjury for violating the circulator’s oath, is Senate Bill 46 really creating a new crime, and do we really need it?