First a novel, now a paper in the South Dakota Law Review!
My friend Reynold Nesiba emailed me back in January: “Of all of the bills below, which do you think are the worst?” The Augie econ prof attached a list of 31 bills and resolutions related to initiative and referendum that the South Dakota Legislature approved during his tenure as District 15 Senator from 2017 through 2024.
Such are the casual emails I get from friends.
That email resulted in my joining Dr. Nesiba and imminent lawyer Teagan McNary as co-author on a paper freshly published in Volume 70, Issue 3 of the South Dakota Law Review: “Have Recent Legislative Changes in South Dakota Made Using the Initiated Measure Process More Difficult?”
***Spoiler alert: the answer is Yes.
Here’s the outline from our abstract:
In this article, the authors make five main contributions: 1) they lay out a brief political history of the initiative and referendum process in South Dakota; 2) they discuss a series of the worst bills passed between 2017-2024 that infringe on how citizens initiate and/or refer measures; 3) they summarize twelve measures considered during the recently completed 2025 legislative session; 4) they also analyze three significant judicial opinions related to initiated measures from the South Dakota Supreme Court, U.S. District Court, and Eighth Circuit Court of Appeals; and finally 5) the authors recommend changes to the initiative and referendum process. Their goal is to enhance transparency, better inform citizens, and to make it easier for South Dakota citizens to benefit from this 127-year-old constitutionally granted right [Cory Heidelberger, Teagan McNary, and Reynold Nesiba, “Have Recent Legislative Changes in South Dakota Made Using the Initiated Measure Process More Difficult?” South Dakota Law Review, vol. 70, iss. 3, posted online 2025.06.17; journal citation 70 S.D. L. Rev. 520 (2025); DOI: https://doi.org/10.70657/SDLR.V70.I3.520].
Our meticulous account of the Republican war on initiative and referendum, a war launched by Speaker G. Mark Mickelson and the crony establishment in response to voters’ passage of Initiated Measure 22 in 2016, includes an assessment of the 12 bills and resolutions aimed at the ballot measure process in the 2025 Legislative Session. As usual, the majority of this year’s proposals dealing with ballot measures sought to make the process harder, if not impossible, for citizens to use:
Ten of these measures work against initiative and/or referendum by increasing signature requirements, banning paid circulators, reducing the time to circulate petitions, increasing the vote threshold for voters to pass amendments, restricting the subjects of ballot measures, or expanding the legal ground for rejecting petition signatures. One measure—2025 HB 1063—allows the LRC to update its fiscal notes for ballot measures before the election, which arguably benefits voters by providing more accurate information, but does not inherently increase or decrease the ability of voters to exercise the right of initiative and referendum. Only one measure—2025 SB 91—makes preparing and circulating a ballot measure petition easier, by separating the text of the initiative from the signature-gathering portion of the petition [links added; Heidelberger, McNary, and Nesiba, 2025, pp. 547–548].
“Conservative” legislators supporting these restrictions may claim, as Speaker and gubernatorial candidate Jon Hansen (R-25/Dell Rapids) did under oath in a federal courtroom in Rapid City Monday (and I’ll have more about that initiative-sabotuer-extraordinaire’s duplicitious shammery later), that they are piling regulations to the point of impracticability onto the ballot question petition process to preserve ballot integrity, but those same legislators show no comparable concern about the integrity of their own candidate petition process:
Only one of these twelve measures—2025 HB 1256—mentions candidate petitions: this bill imposes one of its new restrictions equally on ballot question petitions and candidate petitions but explicitly exempts candidate petitions from its second new restriction. The other eleven 2025 proposals relating to ballot measures say nothing about candidate petitions, circulators, or deadlines. Only two other bills in the 2025 Session—SB 22 and SB 23—address candidate nominating petitions specifically. 2025 SB 22 gives candidates more time to circulate petitions, while 2025 SB 23 requires the Secretary of State to publish online the number of signatures candidates must collect to qualify for the ballot. Comparing these measures and their effects demonstrates that the legislature’s desire to make it harder for citizens to place initiatives and referenda on the ballot is not complemented by any strong desire to make it harder for legislators and other candidates to place themselves on the ballot [links added; Heidelberger, McNary, and Nesiba, 2025, p. 548].
House State Affairs quashed both SB 22 and SB 23, so only one bill, HB 1256, passed with mixed implications for candidates. Previous Sessions show similar disparities, with little discussion of, let alone actual changes to, the process of nominating candidates (even though the record is replete with ne’er-do-wells lying to get on the ballot) amidst constant and almost entirely detrimental proposals to change the process of putting laws and constitutional amendments to a vote.
Far from just complaining, we authors propose some solutions to improve the initiative process: reduce the pre-circulation review time for initiatives from 100 days to 30, move the petition deadline to three months before the election, standardize petitions by requiring only the title and explanation (done by 2025 SB 91! Thank you, Senator Hulse!), and strike the infinitely malleable single-subject rule. But the best reform will come from the people and a better understanding of our proper role in government:
The ultimate reform to protect initiative and referendum is not regulatory, but cultural and philosophical. We need to foster a political culture that recognizes that initiative and referendum are not annoyances or aberrations, but expressions of the true liberty that Rousseau said comes from living under laws that we prescribe to ourselves. Opponents of initiative and referendum (most of them legislators who rightly perceive direct democracy as a check on their power) like to cry “We’re a Republic, not a Democracy!” But we are and can be both. We democratically choose our representatives to handle most of our lawmaking because we recognize that asking every citizen to vote on every law every day is as impractical and inefficient as asking every citizen to mill her own oats and cobble her own shoes. In that regard, we usually function as a republic, not because lawmaking by elected representatives produces inherently better laws, but because it saves time.
Recognizing the ideal of Rousseauian liberty, we reserve the right to make laws directly, through democratic processes, when we wish, and however often we wish. Our republican democracy consists of a legislature of all citizens, in which certain representatives chosen by the people have special functions, but all people, elected or not, have equal dignity, equal capability, and equal responsibility to make good laws.
South Dakotans were the first Americans to make this right explicit in their state constitution; we should take pride in that history and sustain our commitment to the equal dignity of all citizens by protecting their access to and encouraging their exercise of the initiative and referendum process [links added; Heidelberger, McNary, and Nesiba, 2025, p. 562].
If you’re really a “South Dakota Conservative” (I’m looking at you again, Jon Hansen, and your sworn testimony in court Monday), if you really believe in protecting the power and dignity of the people against a government loosed from their leash, then you need to believe in protecting initiative and referendum. You need to promote citizen participation in making laws and reverse the litany of restrictions that McNary, Nesiba, and I document in the South Dakota Law Review.