Earlier this month, the Eighth Circuit erased South Dakota’s initiative petition deadlines and told South Dakota it can’t require citizens to submit signed initiative petitions any earlier than six months before the election. Two Republicans are proposing hoghouse amendments to rectify South Dakota’s error and fill that legal gap. One proposal recognizes and understands the court’s ruling; the other does not.
Senate Bill 113, a carcass bill filed last month by Senator Casey Crabtree (R-8/Lake Madison) to accommodate education legislation, passed emptily through the Senate last week and comes to House State Affairs this morning. Representatives Will Mortenson (R-24/Pierre) and Jon Hansen (R-25/Dell Rapids) are proposing competing hoghouse amendments to turn SB 113 into new initiative regulations.
Mortenson, the Republican Majority Leader and relatively keen (for a Republican) student of the initiative process, proposes setting the deadline for submitting signed petitions for initiated laws and amendments as the first Tuesday in May, roughly six months before the general election at which voters would get to vote on the initiatives. That change would move the deadline back to what it was prior to 2006. That change also would bring South Dakota into compliance with the standards established in SD Voice v. Noem II, in which case U.S. District Judge Charles Kornmann said any deadline earlier than six months before the election violates citizens First Amendment rights and in which the Eighth Circuit saw no difference in the Constitutional issues at stake in deadlines for submitting signed petitions for initiated laws and signed petitions for initiated constitutional amendments.
Hansen, a hard-conservative opponent of direct democracy whose efforts to take away rights to initiative and referendum have failed both in court and at the polls, ignores the courts and proposes the second Tuesday in March as the deadline for initiative petitions. Evidently spoiling to relitigate the deadline, Hansen prefaces his hoghouse with a whole stream of bogus Legislative “findings” positing a minimum timeline for processing petitions:
The Legislature finds that general election day in South Dakota is the Tuesday after the first Monday in November. Therefore, general election day occurs within November 2 to November 8.
The Legislature finds that the absentee voting period begins 46 days prior to the general election. Therefore, absentee voting begins within September 17 to September 23.
The Legislature finds that the South Dakota Secretary of State requires approximately one month to prepare and print all ballots to be used on general election day. Therefore, the time period for preparing and printing ballots must begin within August 18 to August 24.
The Legislature finds that 60 days time is minimally sufficient to accommodate an appeal in the Supreme Court. Therefore, the time window for an appeal in the Supreme Court must begin within June 19 to June 25.
The Legislature finds that 60 days time is minimally sufficient to accommodate an action in circuit court to challenge the validity of petition signatures. Therefore, the time window for a circuit court challenge must begin within April 20 to April 26.
The Legislature finds that the South Dakota Secretary of State requires approximately 45 days to review petition signatures for validity and certify a measure for the ballot. Therefore, the time window for a circuit court challenge must begin within March 6 to March 12.
Therefore, the Legislature finds that the petition submission deadline shall be the second Tuesday in March [Rep. Jon Hansen, excerpt from SB 113 Amendment 113D, Section 1, retrieved 2023.03.01].
Hansen perhaps smirkingly pretends to offer some self-contradictory grace, saying court challenges must begin by March 12 but allowing the possibility of submitting petitions some years as late as March 14 (as will happen in 2028!). Hansen lies about the time the Secretary of State needs to review petition signatures: as he heard in court in 2019 (if he was actually listening and not just rehearsing in his head his own shaky answers), then-Director of Elections and star witness for the state Kea Warne testified that the Secretary of State never failed to fully process initiative petitions back when the submission deadline was the first Tuesday in May. Warne testified that in the 2016 election cycle, the Secretary of State processed ten initiative petitions in just under three months, averaging out to one petition every 8.6 days. And in 2015, Warne and her boss Shantel Krebs verified two referendum petitions in two days.
Hansen’s 120-day timeframe for court challenges to petitions is also bogus. Primary candidate petitions aren’t due until the last Tuesday in March, and their ballots go to the printer just a couple weeks later. Recognizing this tight timeframe, South Dakota Codified Law 12-1-13 moves challenges to candidate petitions to the front of the line in circuit court for immediate hearing. If a petition has flaws, a May deadline (or a July deadline as in Arkansas, Nebraska, and North Dakota, or an August deadline as in Colorado) still leaves citizens sufficient time to challenge that petition in court.
I’ll grant Hansen the part of the timeline dealing with ballot printing and absentee voting. Since Hansen and his right-wing friends failed in their attempt to reduce the absentee voting window to 30 days, I’ll agree that we need printed ballots available to voters by 45 days before the election. We could tighten up the printing and distribution process, but I won’t argue over those administrative details.
But the big reason House State Affairs needs to adopt Mortenson’s May deadline and reject Hansen’s May deadline is not that Hansen is full of crap (although he is). The big reason we must reëstablish the May deadline for initiative petitions is that the courts have said so. Hansen had his day in court to argue for an earlier deadline, and the court said he is wrong.
Both Mortenson and Hansen propose one bit of unnecessary hamstringing of the initiative process. Both hoghouse proposals latch onto the Eighth Circuit’s novel reading of Article 23 Section 1 of the South Dakota Constitution and codify the 12-month deadline for submitting the final language—not the final petition signed by tens of thousands of voters, but just the final draft of the petition as it is to be circulated—of an initiated constitutional amendment. However, they both apply that Article 23 Section 1 deadline to final language for initiated laws as well. Article 23 Section 1 does not mention initiated laws, but Mortenson and Hansen are both seizing on an opportunity to complicate all initiatives by requiring sponsors to draft any initiative well before the election-year Legislative Session begins.
The 12-month deadline for submitting final initiative language will deny sponsors months of time to circulate responsive petitions. may not have much practical impact on initiative campaigns. Current law delays the circulation of petitions by at least a hundred days with review by the Legislative Research Council and Attorney General. A hundred days before an early November deadline is around the last week of July. To have final language ready for the Secretary of State by early November, sponsors will thus have to file their first drafts with the Legislative Research Council by late July.
Absent Mortenson’s and Hansen’s specious misapplication of the Article 23 Section 1 amendment deadline to initiated laws, a May deadline for submission of signed petitions will allow sponsors to submit their first drafts as late as late November. The 100-day review process would allow them to hit the streets with petitions in early March. A statewide petition drive requires at least a couple months to collect the 17,509 signatures required to place an initiated law on the ballot and the 35,017 signatures required for a constitutional amendment, and that’s amidst the extra challenge of unpredictable and often inclement early spring weather.
That’s why I would propose amending Mortenson’s hoghouse (and he’s Majority Leader, so that’s the one that will pass today) to (1) strike the 12-month deadline for submitting language for initiated laws and (2) set the deadline for filing signed petitions on the second Tuesday in July. The point of initiatives is to give citizens a chance to do what their Legislature fails to do. To start circulating petitions in mid-May (better petition weather!), initiative sponsors would have to get the ball rolling with the first drafts to the LRC by the beginning of February. That’s around the deadline for legislators to file bills. Sponsors could get LRC comments and submit revised language for AG review around the third week of February, around the deadline for bills to move out of their originating chambers or die. That’s still a tight timeframe for sponsors, but it would allow citizens to propose initiatives that respond more promptly to omissions and errors by the Legislature.
So, to review, House State Affairs:
- Ignore Hansen’s hoghouse.
- Amend Mortenson’s hoghouse.
- Drop the 12-month deadline for submitting final language for initiated laws (the Constitution does not require it!).
- Set the deadline for submitting signed initiative petitions as the second Tuesday in July.
I could agree with your amendments, but I think the May deadline is acceptable under Kornmann’s decision. I think the 12-month deadline is unconstitutional. Proposed initiatives should go to the LRC for drafting, but that’s about all that should be required. That shouldn’t take but about two weeks in my experience. The AG should be cut out of the process, because having to toss the AG’s language at a petitioner amounts to forced speech by a government official. It interferes with the constitutional rights of everyone involved in circulating and signing a petition.
Indeed, Kornmann’s ruling says early May is the earliest acceptable deadline. But Colorado manages to give citizens until early August to put laws to a vote. South Dakota currently gives us until the end of June to refer laws to a vote. Six months before the election is the maximum, but later deadlines are workable and better for responsive democracy.
I agree that we should ditch the AG review pre-circulation. Let him write the explanation for the ballot, but end his ability to delay petition circulation for 80 days.
But here’s some real weirdness: Senate State Affairs approved both Mortenson’s and Hansen’s amendments today. First they approved Mortenson’s May deadline on a voice vote. Then they approved Hansen’s March deadline on a 7–6 vote, with Republicans Bartels, Blare, Drury, Hansen, Reimer, and Wangsness and Democrat (?!?!) Healy voting for the Hansen amendment and Republicans Cammack, Chaffee, Chase, Rehfeldt, and Mortenson and Democrat Lesmeister voting against it. Since Hansen’s amendment came second, I’m assuming that’s the final form of the bill Senate State Affairs approved on its final unanimous vote.
But Representative Healy could have stopped Hansen’s amendment and kept the deadline in May by voting with her House leader Lesmeister. Democrat Healy made it possible for Hansen to make this bill unconstitutional.
Is whackadoodliness a virus? It seems to have caught at least a couple of Dems whacking a dandy doodle this session.