Senate State Affairs Kills May’s Impossible, Unconstitutional Geographical Quota for Amendment Petition Signatures

Senate State Affairs saved the state from another lawsuit yesterday. On an 8–1 vote, the committee killed House Bill 1200, Rep. Elizabeth May’s (R-27/Kyle) unconstitutional proposal to render initiated amendments impossible by requiring 1,001 signatures from each of South Dakota’s Legislative districts to put an amendment on the ballot.

Representative May opened testimony to Senate State Affairs with her specious mumbling about using HB 1200 to make sure all South Dakotans are represented in the initiated amendment process. May again ignored the fact that all South Dakotans are already represented in the process: all South Dakotans can sign petitions for initiated amendments, and all South Dakotans get to vote in the statewide election that requires a majority vote to pass initiated amendments.

Incredibly, May told Senate State Affairs that Colorado uses this geographical scheme for initiative petitions. Colorado does not; if May were reading this blog, she’d know Colorado’s geographical quota was declared unconstitutional by a federal court.

May couldn’t find any South Dakotans willing to stand up and support HB 1200. Instead, she had to rely on T.J. Nelson, representing the Florida-based right-wing propaganda mill Opportunity Solutions Project. Nelson’s group supported the anti-democratic Amendment C last year; OSP vaguely and briefly asserted that forcing petitioners to collect signatures in low-traffic rural areas would somehow “increase buy-in” for the democratic initiatives that OSP and Republicans nationwide are trying to kill.

Leading the opponent testimony was attorney Jim Leach of Rapid City, who just won a pretty big federal case that nuked another unconstitutional Republican effort to infringe on South Dakotans’ initiative rights. He told the committee one thing: HB 1200 violates the state constitution. Leach said the requirement that signatures be distributed in a particular way—in this case, at least 1/35 of the necessary signatures from each Legislative district—violates Article 23 Section 1 of the South Dakota Constitution, which says 35,017 signatures (based on the last gubernatorial election) are sufficient to put an initiated amendment to a statewide vote. Leach said collecting 1,001 signatures from each district would be “virtually impossible”, and HB 1200 would thus deny South Dakotans their constitutional right to vote on a measure supported by a petition with sufficient Article 23 Section 1 signatures. Leach said that if HB 1200 really is a good idea, it can only be brought as a constitutional amendment put to the voters, so the voters may decide if they want to give up their Article 23 Section 1 right.

Deputy Secretary of State Tom Deadrick came next, telling Senate State Affairs that HB 1200 would turn an initiated amendment petition into 35 separate petitions that would cost at least $100,000 to check. Deadrick also said the Secretary would not be able to finish checking petitions for compliance with HB 1200 before July 1. Deadrick did not explain why July 1 matters, since that’s not a deadline for anything related to the initiated amendment process or the production of ballots for the general election, but hey, I’m glad to have the Secretary of State’s office on my side opposing this bad bill.

David Owen from the South Dakota Chamber of Commerce said his committee has been involved in ballot question campaigns in nine of the past ten elections (“I was not involved in the elections last year and it was the best year of my life,” said the ever clever and crowd-pleasing Owen.) Owen emphasized that his Chamber board is not fond of initiative campaigns, but he said voters like initiatives and voters can see that HB 1200 is an effort to make it impossible to initiated amendments. He cast doubt on May’s statement that other states require petition signatures from every district. He said HB 1200 would force initiative sponsors to spend “about a million dollars to send people out to Lemmon to travel there and find a thousand signatures. Organizations will not be able to do that, because they rarely accomplish that now.”

Lobbyist Mitch Richter spoke for South Dakota Farmers Union. He noted that Idaho passed a similar bill in 2020 and saw that bill ruled unconstitutional in 2021. Richter said Wyoming and Utah saw similar geographical quotas ruled unconstitutional. Richter pointed to data from the state’s extraordinary litigation fund showing that the state has paid $400,000 in cases it has lost defending unconstitutional restrictions on the ballot measure process.

Debra Owen (that’s Mrs. David Owen) said the Sioux Falls Chamber of Commerce opposes this bill.

Betty Oldenkamp gave a similar one-line statement of the South Dakota Advocacy Network of Women’s opposition to HB 1200.

Chase Jensen, lobbyist for Dakota Rural Action, noted that HB 1200 represents a double standard for voters versus legislators. Applying HB 1200’s rationale to the Legislature would require legislators to get substantive approval from members of every district before even introducing a bill, not to mention passing it. Jensen said HB 1200 would strip away constitutional rights, make the initiative process impossible for grassroots groups, and make initiatives the exclusive province of big-money groups. He said there is no problem: Dakota Rural Action believes South Dakotans have demonstrated their competence as voters by deciding amendments at the ballot box and often voting amendments down.

Senate State Affairs allowed only ten minutes of testimony for each side, but he did note that the committee had received and would place on the record lots of written testimony on HB 1200. All of that written testimony—Tony Burke, Brian Murphy, Dave Knudson, De Knudson, Don Saxton, Jay Browne, Scott Knuppe, Tony Heinz, Joe Kirby, and Matt McClarty—came from South Dakotans, and all of it opposed HB 1200. No one wrote in to Senate State Affairs to say, “Make amendment sponsors drive around Eureka, Faulkton, and Polo looking for a thousand signatures—gee, what a swell idea!”

Rebutting this overwhelming opposition, Rep. May chuckled that she’d “brought some people out of the woodwork.” She dismissed the Secretary of State’s worries by saying Appropriations is looking at this and “there’s no deadline on this when this would take place.” Um, Liz? No deadline? HB 1200 would take effect on July 1 and apply to every initiated amendment petition submitted thereafter.

May said changing our constitution “ought to be a little harder”. On the concern about lawsuits, Rep. May said she’s willing to “put up a little bit of a fight over this”. She repeated that everybody in the state should be involved in the petition process, even though she also said that anybody from any district can already sign a petition in the parking lot at Walmart in Sioux Falls.

Senator Reynold Nesiba (D-15/Sioux Falls) asked Rep. May if she’d ever been part of a ballot measure petition drive. May said yes. Nesiba said his experience is that it’s already really hard to petition and change the constitution and asked May if the HB 1200 quota would more fairly be based on actual voter registration than population. May avoided responding to the technical and philosophical core of Nesiba’s question and said she simply mimicked Montana’s model and thinks it would work well here.

Senate king Lee Schoenbeck (R-5/Lake Kampeska) made the motion to kill HB 1200. He said he hates to see the state fund Jim Leach’s retirement by passing another unconstitutional bill, and he acknowledged that Leach’s read of the bill is “mostly right”. Schoenbeck suggested maybe a smaller number of signatures required from each district to signal “statewide interest” but said HB 1200 “clearly wouldn’t pass muster with the Eighth Circuit in its current form because… it’s designed to be almost impossible.” Schoenbeck said the courts have been “pretty clear about our responsibility to respect the will of the voters reflected in our state constitution. This doesn’t do that.”

Senator Nesiba said HB 1200 is “unnecessary” and is just a way to make it “virtually impossible” for citizens to participate in the process. He reminded the committee that everybody gets to vote on amendments, so we already have widespread participation.

Senator Michael Diedrich (R-34/Rapid City) said it wouldn’t make sense to allow a minority (e.g., a group of stubborn non-signers in May’s District 27) to deny all South Dakotans the right to vote on amendments.

Chairman Casey Crabtree (R-8/Madison) noted that the only place he’s ever been asked to sign a petition is in downtown Sioux Falls (petitioners, go knock on Crabtree’s door out at Lake Madison this weekend!) and so he understands May’s intent to “give rural areas a voice”. He said he’d like to see the bill come back as a constitutional amendment. Crabtree cast the only vote for HB 1200.