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Committee Approves Minor Mathematical Amendment to Unconstitutional Legislative District Quota for Amendment Petitions

House Bill 1200‘s geographical quota for constitutional amendment petitions would make it practically impossible for citizens to put constitutional amendments on the ballot. But no one showed up to testify against HB 1200 yesterday, so I guess we’re all o.k. with giving up our right to amend our Constitution, right?

House Local Government opened yesterday with its hearing of HB 1200, a proposal to require that citizen amendment sponsors obtain at least 1/35th of their signatures from voters in each of South Dakota’s 35 Legislative districts. Practically, under current petition rules, HB 1200 would require collecting 1,001 signatures from each district.

Representative Liz May (R-27/Kyle) said HB 1200 is “just a simple little bill”.

She said with hypocrisy that amendments approved for the ballot by the Legislature come from a process in which all 35 Legislative districts are represented but “currently we don’t have the same opportunities through the petition process that all 35 districts are represented.” She said HB 1200 requires that all 35 districts be represented.

The argument that HB 1200 somehow brings the citizen initiative process up to par with the Legislature in guaranteeing fair representation of every district is bunk. Every district has the opportunity for representation in both the initiative and the Legislative process right now. Citizens from any district may propose an amendment or sign a petition, just as legislators from any district may propose an amendment or vote to place one on the ballot.

HB 1200 is not an “opportunity” for representation; it is a mandate. Every district must endorse placing an amendment on the ballot. No such mandate exists in the Legislature: only a majority of Representatives and Senators are needed to put an amendment to a statewide vote. Legislators don’t have to get votes from members of each district to put an amendment on the general election ballot.

Another major problem with the thinking of Rep. May and many other legislators on HB 1200 and the petition process in general is their failure to differentiate between petitioning and elections. The petition is not the final word on an amendment; the petition is essentially the motion that puts an amendment to a statewide vote of the people. We don’t require legislators to get a second from members of every district to put their bills up for a vote in Pierre. Why should we require petitioners to essentially obtain a second from every district? Every district will still get an equal say on final passage of the amendment, no matter where the petition signatures came from or where the legislators who voted to place it on the ballot came from.

And in that much more important final statewide vote for passage, Rep. May appears not to care at all about equal representation of every district. Every district has equal opportunity to vote (well, actually, in District 27, where the state makes it hard to set up voting stations, voters have trouble getting equal representation, but Rep. May isn’t supporting legislation to rectify that problem), but May is not asking that we require that at least 1/35th of the votes for an amendment, or for an initiative, or for Governor or Attorney General or any other statewide issue or office, come from each Legislative district.

How would Liz May like it if we applied a similar precinct quota to Legislative districts? How would Liz May fair in the next election if we required her to get a proportionate number of petition signatures and, more importantly, votes, from the all-Lakota precincts in Pine Ridge and not just from the whiter ranch country that favors her?

The idea that the voters of one district could exercise veto power over the will over voters in 34 other districts representing 97% of the population of the state is absurdly anti-democratic. Rep. May is preaching equal representation, but she’s really preaching no representation for any majority in the state.

Rep. May also claimed falsely that petition circulators stand in the parking lots of Walmarts collecting signatures in the metropolitan areas and “the people in District 27 and many many other districts in the middle of the state are never part of the process.”

  1. Walmart does not allow circulators to stand in its parking lots. (I know; I’ve asked for permission and been denied.)
  2. I’ve seen lots of petitions for initiatives with signatures from people from District 27. Pull the petition for Medicaid expansion that Dakotans for Health submitted last May (I know, it’s an initiated measure, not an initiated amendment, but the example still applies): that petition included lots of signatures from Pine Ridge, Kyle, and other towns Rep. May represents
  3. Lots of voters from District 27 come to Walmart and other Rapid City metro locations every weekend. Same for voters in the “many many other districts in the middle of the state”: they are part of the process already because they come shopping and rodeoing and basketball-gaming in Sioux Falls, Aberdeen, Pierre, and other high-traffic hubs regularly. Those voters are already part of the process.

During question time, Representative Marty Overweg (R-21/New Holland) noted that HB 1200 does nothing to stop circulators from collecting signatures from rural voters in metro areas outside of their districts. May said “there would be a column for what district you live in,” evidently implying that she expects the Board of Elections to revise the initiative petition to require voters to write down their district. HB 1200 includes no such mandate, but requiring voters to write down their district will make petitions even harder to successfully complete. Not many regular citizens know their Legislative district number off the top of their head. Circulators will have to check addresses and voter registration on the spot to help voters complete their signatures, and a “district” column on the petition will create numerous errors and invalidate numerous otherwise valid voter signatures, thus disenfranchising more voters and blocking more amendments from the ballot.

House Local Government did pass Rep. May’s small but crucial amendment, changing “No more than one-thirty-fifth” to “At least one-thirty-fifth”, thus fixing the mathematical problem I identified in HB 1200. Due to rounding of fractional voters, “no more than” made it mathematically impossible to submit a petition that would have enough countable signatures to qualify for the ballot. “At least” allows some districts to provide the extra signatures necessary to cover the rounding and reach the signature threshold of 35,017.

Now if only Representative May had paid attention to the rest of the problems I identified with HB 1200:

  1. As noted above, HB 1200 imposes an every-district burden that is not imposed on the Legislature for any action.
  2. This burden will kill the grassroots, requiring them to engage in more costly travel and signature verification processes than most volunteer groups can afford.
  3. Requiring at least 1,000 signatures from every district on a petition that needs 35,017 signatures total will require the Secretary of State to abandon the current statutory mandate of statistical sampling. Current law and rule require the Secretary to look at just 720-some signatures to obtain a 95% confidence level that the petition has enough valid signatures to qualify for the ballot. A random sample of 720 signatures out of 35,017, just one out of 50, is insufficient to guarantee that the sample reliably represents the number of signatures gathered from each of the 35 districts. To comply with HB 1200, the Secretary will have to count and validate the district of every signature, exploding the work required.
  4. Geographical quotas will not pass muster with the courts. In 2018,  a federal court in Colorado threw out a comparable legislative-district quota for initiated amendment petition signatures in Colorado. The judge in that case said that since Colorado’s legislative districts have widely varying numbers of registered voters, requiring equal quotas of signatures from each district makes voters from smaller districts more powerful than voters from larger districts, thus violating the “one person, one vote” principle embodied in the Fourteenth Amendment. In that case, a difference of 64% between the smallest and largest number of voters in districts was enough to trigger the violation. In South Dakota, the largest number of voters in any district, 27,813 in District 35, is 214% the number of voters in the district with the smallest pool of registered voters, 12,986 in District 26.

I should thus feel relieved that, even if the Legislature railroads HB 1200 to the Governor’s desk for an inattentive signature, defenders of democracy can take this geographical quota to court and easily secure its judicial defeat.

But I’d rather legislators come to their senses today and spare us the taxpayers all that costly litigation.

Representative Kadyn Wittman (D-15/Sioux Falls) cast the lone vote against HB 1200 but was swamped by 10 Republican ayes. Wittman will have the chance to explain all of these reasons to kill HB 1200 today on the House floor. Representatives, don’t be fooled by the lack of testimony against HB 1200 yesterday; Rep. May didn’t have any proponents to back her up, either, because (a) a blizzard was coming! and (b) petition law is complicated, nerdy, unsexy stuff that requires a lot of reading and petitioning experience to understand. Please listen to Representative Wittman today, read this blog post (and click the links, especially to the ruling in Semple v. Williams 2018), and vote this bad legislation down.

9 Comments

  1. All Mammal 2023-02-22

    I doubt some districts even have 1,000 qualified, registered voters. Try getting to them without getting shot at. Some driveways go for miles and lead to an inbred stranger who might put your very life and limb at risk. Not like Ms. May cares about women petitioners driving up her own son’s driveway and possibly getting raped. Her bill is a threat to circulators’ lives.

  2. Arlo Blundt 2023-02-22

    Mrs. May’s proposal is just down right silly. On it’s face it is unrealistic and ignores several factors impacting petition success and creates many new barriers to implementing the process. Hopefully, cooler heads will prevail.

  3. All Mammal 2023-02-22

    One thirty-fifth is not representative of every district equally. If my district has way more voters than any other district, why would your loosely populated district still need to get as many valid signatures as mine? That is not democracy. One Voter-One Vote. No vote is worth more than the next. They do not understand that we all get the same voice on the ballot on election day. Gtfot

  4. grudznick 2023-02-22

    grudznick thinks Ms. May’s law bill is funny. She’s just poking you fellows for fun. She’s getting your goats, and she’s getting them good. Even Ms. May is not stupid enough to believe this would fly.

    And Ms. Mammal, let us not discriminate against fellows with long driveways. There are swell fellows with long driveways. I have many friends, good friends, and close personal friends, who have long driveways. Longer than most, anyway.

  5. SuperSweet 2023-02-22

    So how do you all respond to the committee and house passage of this bill?

  6. grudznick 2023-02-22

    All your hopes, Ms. SuperSweet, now rest in the purse of one Mr. Schoenbeck. He is your hope, as I bet you Governor Noem would let this perversion go right into the books without a signature just because she’s in a mood.

  7. John 2023-02-22

    SuperSweet,
    1) submit a letter to the editor of your local medias and social media, and appear at your local legislative cracker barrel — asking why your representative hates democracy. Ask your legislator why they think their voters are not smart enough to determine an issue. Ask if your local legislator thinks their election should be determined by winning a majority in all precincts.
    2) get on board for contributing to the inevitable court challenge.
    3) get on board for the inevitable petition to throw out this legislative nonsense.

    This 98th Session of the South Dakota legislature is perhaps one of the worst, more racist, bigoted, and anti-democracy in recent memory.
    SB56 is a racist smack down of the poor, the 2 1/2 times more populous residents of Eagle Butte (1250) in their attempt to bring county seat closer to their citizens verses the present site at Timber Lake (500) having a declining population.
    HB1080 substitutes the legislators judgment for that of the family doctor. Perhaps the legislators will decide if your child or grandchild is afflicted through no fault of theirs, of autism, anoxic brain injury, or left-handedness – that they should criminalize caring and treatment. Perhaps next the legislators will outlaw treatment of Alzheimer patients to relieve the state’s financial stress on its nursing home care.
    HB1075, once in 5 years the governor, like a broken clock, is entitled to having the correct idea — but the legislature of bigots beholden to the rentier class shot down the ban on sales tax on food. This legislative “decision” is beyond pathetic in a state in which the average worker toils at 2+ jobs to make ends meet. Please bring on the initiated measure banning all grocery sales taxes, state, county, municipal. (Or are state, county, municipal separate topics in this nonsensical world?)
    HB1200, the legislatures anti-democracy is well filleted, above.

  8. Mark Anderson 2023-02-22

    The pubs are going to continue to push BS, it’s what they do. Sad but true, they do it for you.

  9. All Mammal 2023-02-23

    Mr. G- you do not have an accurate guage on the stupidity of Ms. May and her goof troop. You might want to get your stupid meter calibrated(:

    I’d rather be a doper than a goat roper. Any day of the week.

    So is it now a felony if my petition is signed by a citizen who forgot they are registered in Meade and wrote down Pennington? Funny that bill was introduced by Hansen. Not one nay out of the House.

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