The failure of Amendment L suggests it’s not worth the trouble for legislators to whip up another 60% threshold or other chicanery to make amending the constitution harder.
But there’s the problem: it’s almost no trouble at all for legislators to put anti-democracy amendments on the ballot. One legislator with a bee in his bonnet against uppity voters can go to Pierre, file a resolution, get 36 House members and 18 Senators to vote for it (especially easy when that one legislator is acting with the blessing of the establishment Republican supermajority), and presto! that one legislator clutters the ballot with yet another Legislative amendment. Even if voters reject a bad idea three times at the polls—as they have with Republican proposals to raise the vote threshold for enacting constitutional amendments, in 2018, 2022, and 2026—legislators can just recruit a few of their Pierre pals to try again and keep rolling the electoral dice in hopes of getting lucky. It’s a cheap gamble.
Maybe raising the price of that gamble would make legislators less inclined to monkey with our constitution and our rights.
Constitutional amendments can go to a statewide vote by two paths: majority votes of both the House and Senate, or a petition signed by a number of registered voters equal to 10% of the last gubernatorial voter turnout and submitted by six months prior to the general election. Legislators need a few dozen colleagues to put an amendment on the ballot; regular citizens need tens of thousands of petition signers.
So here’s a wild idea: let’s make legislators work just half as hard as citizens. Let’s add the following language to Article 23 Section 1 of the South Dakota Constitution:
Before the Legislature may propose an amendment, the Legislature must receive a petition signed by qualified voters equal in number to at least five precent of the total votes cast for Governor in the last gubernatorial election.
This amendment would preserve two paths to the ballot for constitutional amendments. But it would ensure that Legislative amendments start with some base level of popular support, just like initiated amendments. Legislators who want to put the next Amendment L or C or X or some other higher vote threshold or other obstacle to our exercise of the right to initiative and referendum would have to turn to their constituents first and say, “Hey, I’d like to propose an amendment next Session to limit initiative and referendum. Would you sign a petition to help me do that?” That would give their constituents a chance to say, “Why the heck would you want to do that? I’m more interested in stopping data centers and making taxes fairer!” Had Rep. John Hughes (R-13/Sioux Falls), prime sponsor of Amendment L, had to workshop his 60% vote threshold with tens of thousands of voters on the street (getting the 17,508 signatures that equaled 5% of the 2022 gubernatorial vote requires talking to at least three times that many people), he might have thought twice about trying to put L on the ballot. (By the way, Rep. Hughes was just one of two incumbent Republican Representatives who lost their seats to newcomer Democrats. He really should have spent more time talking to his constituents.)
Making legislators circulate a petition to get permission to bring an amendment to the Legislature would likely reduce the number of amendments the Legislature puts on the ballot. It might make the amendments legislators do put forward better reflect the real interests of the people. And trying to collect 15K or 20K signatures would definitely give Legislatures more personal, practical understanding of how hard it is for citizens to engage in the initiative and referendum process. I’d like to believe that understanding might temper Republicans’ perennial urge to hamstring that beautiful process with paperwork and bureaucracy.
Requiring legislators to circulate petitions for their amendments would also benefit citizens seeking to initiate amendments. The 10% signature threshold—35,017 in the past election cycle—isn’t impossible, but no one this election cycle managed to reach that goal, and we can only guess how many grassroots activists have considered putting an amendment on the ballot but have demurred due to the enormous cost (time, sweat, cash) of collecting (the safest minimum in my estimation) 42,000 signatures. If a petition drive could only muster 20,000 or 25,000 signatures, its sponsors could submit their petition under the 5% rule, recruit a friendly legislator to introduce their amendment in the next Session, and then, instead of spending the winter collecting signatures in the snow, they could concentrate their effort on lobbying a few dozen legislators in the Capitol and at the crackerbarrels.
Since 1980, legislators have used their privilege to place 66 constitutional amendments on the ballot. During that period, citizens have managed to put only 21 amendments to a statewide vote. If legislators really think the constitution is subject to too many efforts to change it, they should stop trying to restrict the people’s ability to make such changes and instead make steeper their own easy path to cluttering the ballot. Requiring legislators to collect even half as many signatures as citizens must to bring an amendment forward would protect the constitution from change without violating majority rule.