Guest Column: Protect South Dakota’s Initiated Measure Law.

By Lee Schoenbeck:  a trial lawyer, mechanic’s kid, and legislator from Watertown, SD

South Dakota’s initiated measure provision in the constitution has a special place in our political history of populist empowerment. But, its being abused both by groups with national agendas, and by groups that having figured out how to hide their agendas in pages of political goulash – making it hard for the voters to find out what the ballot issue really entails. These ballot games of “gotcha” need to stop. With the trend towards more and longer ballot issues, backlash from the voters and the legislature could likely restrain or eliminate this important citizen right. Let’s fix it now and save a powerful force of the people.

In 1887, during the Populist Era of South Dakota politics, the initiative was added to our state’s constitution. To appreciate its birthing, read Principles Over Party: The Farmers’ Alliance and Populism in South Dakota by R Alton Lee, which was published by the South Dakota Historical Society in 2011. Another quick read on the history would be Chief Justice Gilbertson’s majority opinion in Brendtro v Nelson, 720 NW2d 670 (SD 2006).

THE CONSTITUTION

The text of the initiated measure provision can be found in Section 1 of Article III of the South Dakota Constitution:

The legislative power of the state shall be vested in a Legislature which shall consist of a Senate and House of Representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

THE LEGISLATURE’S ROLE

Dating back to at least 1921, our Supreme Court has recognized that the initiative and referral processes are not self-effectuating. The legislature is called to make “reasonable” laws to make these rights function properly.  The Legislature’s work can be found in SDCL Chapter 2-1

Recent history would indicate the legislature has new challenges to confront in carrying out its role in this area. The legislative committee tasked with this project might consider the challenges and solutions suggested below

THE CHALLENGES

We are long past the days of the public all gathering on a grassy knoll outside of Athens to debate and adopt governing laws with complete public input and involvement. There is no ability to have hearings for 830,000 South Dakotans to listen to the debate and propose amendments to a ballot proposal. The process has to be managed to account for this reality. The initiative has best served the public when the issue was concise and clear.

The Secretary of State’s archives no longer include the 1970’s ballot issue banning mourning dove hunting, but one can imagine that it was likely very short. The 1986 Memorial Day ballot issue was about one topic, when to celebrate Memorial Day, and occupied less than a half page. The 1992 Video Lottery repeal took two pages.

Conversely, the public financing of campaign and other topics bill, known as IM 22 on the 2016 ballot, ran for 34 pages! The 34 pages covered an ethics board and its powers, public financing of campaigns, limitations on lobbying and legislators, and a host of other topics. A citizen might well favor one or two paragraphs or pages, and not know about language buried somewhere within the other thirty-plus pages.

The current system works against meaningful citizen involvement. The language people are voting on is not on the ballot for them to read! The actual text of the proposals are also not readily available – only summaries by proponents, opponents, and the Attorney General. The current system is more like the Speaker Pelosi Obamacare approach of “we’ll read it after it passes”

THE SOLUTIONS

Here are at least two fixes to consider.

First, the “One Subject” provision in Article III, Section 21 of the South Dakota Constitution should be required for initiated measures:

No law shall embrace more than one subject, which shall be expressed in its title.”

It is time for the Legislature to implement this provision with respect to initiated measures. Since there are no meaningful hearings and there is no process to amend, citizens should be asked to vote on only one clearly identified topic in each initiated measure.  Increasing voter awareness of what they are voting on – and stopping the trick of hiding several topics somewhere back on pages 15 through 27 –  is an improvement to the initiated process, and shows respect for the voters. It’s hard to imagine, other than by those who abuse the initiative process, opposition to shining daylight into the ballot.

The second fix is about full disclosure and lots of sunshine. The entire issue the voter is being asked to vote on, should be printed out for them on the ballot they are asked to cast, or made available to them at the time they are asked to vote on the issue.

The Legislature could determine a number of words that would be printed at no charge and appear on the ballot – for example, a half a page. If the proposal is longer than that, the cost of printing ballots so that sufficient copies can be made available at polling places and to early voters would fall on the party proposing the lengthy initiated measure (beyond some reasonable length, this shouldn’t be a taxpayer burden).

If the first proposal was adopted – enforcing the Constitutional provision on One Subject – the second proposal would rarely be an issue. More importantly, the initiative would be restored to a meaningful decision-making experience by the electorate.  It would be the end of the menu of ballot goulash that leaves voters wondering what’s mixed into the mess they are served.

27 Replies to “Guest Column: Protect South Dakota’s Initiated Measure Law.”

  1. Anonymous

    Good article Lee, but I think we need to go further with 17 possible ballot measures SO FAR! we need to limit the number or raise the requirements. This is plain ridiculous to have so many measures and from out of state groups, not people living in the state who will live here under the changes.

  2. Ken Santema

    I think your first idea is great Mr Schoenbeck. The complexity of some of these ballot questions has been off the charts. Ensuring these questions encompass one single (and hopefully simple) topic would help a lot.

    I’m not sure about your second idea. I like the idea of having a copy of the question readily available when voting. But that would possibly confuse certain voters if it was included directly on the ballot.

    Another possible fix I would suggest is requiring a public hearing about each ballot question in a few different parts of the state. These hearings would not prevent any question from making the ballot, but it would give a public forum for the sponsors of the ballot question to answer questions on the record.

  3. Anon

    I LOVE the one subject rule. If it’s a Constitutional requirement for bills that move through the legislature, then it is just common sense that the same rule be applied to ballot initiatives. Like Lee said, the only people who could possibly object to that would be those who either have, or intend to, abuse the system.

  4. BoB Miller

    Well done Lee.
    Great food for thought.
    We have reached a point where ballot questions are becoming democracy run amuck.

  5. Troy Jones

    The second idea is as critical if not more critical than the first.

    If you don’t think it is critical, how many of you would give me the power to summarize every ballot initiative? How about a Democrat AG?

  6. Anonymous

    Interesting fact: South Dakota has
    .0025% of this country’s population but 10 of 60 ballot measures nationally were run in South Dakota, or 16.67%. 7 of those 10 were brought to us by people that don’t live here and never will.

  7. Charlie Hoffman

    Yes we have a problem when groups of nursing home ladies call me from Mobridge and Herried wondering how to vote on IM’s because they don’t know what they mean.

    We are truly disaffecting our Seniors and pushing them out to the edge of the cliff by forcing them to eat this political goulash. I would have used a term normally associated with a feedlot but goulash reads nicer.

  8. Anonymous

    I agree with Lee’s proposed solutions, but I hope that no one supports Mickelson’s attempts to trample upon the rights of free speech, privacy, and free association because they are frustrated with the out-of-state groups pushing for initiated measures and constitutional amendments. That solution would be worse than the problem.

  9. Cliff Hadley

    I vote no on all initiatives and referrals for one simple reason: representative lawmaking is always more accountable and thus preferable to direct votes. But if we are to have ballot issues, Mr. Schoenbeck’s recommendations sound fine. And I’ll still vote no.

  10. Joe

    Lee has some constructive suggestions worthy of debate, but this raises a more existential debate worth having on initiated measures – should the process exist? The debate juxtaposes our nation’s late-18th century founding in classical liberalism vs. the state’s late-19th century founding in a more Populist Era as Lee notes. I’ll lay out my thoughts in a subsequent post and welcome anyone’s thoughts and discussion.

  11. Joe

    The Founders constructed the U.S. Constitution enumerating certain powers to a national government and reserving other rights and powers to the states and the people. The structure of federalism was fundamental to securing liberty. A citizen would know which level of government was responsible for a certain function and could hold those officials accountable. The Founders were quite familiar with the classic historians and philosophers including the history of democracies and republics. They did not hide their fear of direct democracy and structured the government with many checks and balances to temper the passions of popular sentiment.

    However, the populist movement blurred some of these structural lines. Now, a citizen’s liberty is in question because he has a hard time knowing what level of government is ultimately responsible for an issue (see the federal/state mess of immigration, healthcare, education, etc). The Founders intended for states to be more than mere administrative units of the national government helping run a Medicaid program. The states are sovereign entities formed as republics with legislatures of broader power than Congress in many areas.

    But now, what does the South Dakota State Legislature do? What is its role in our great republic? What is the importance of a legislative election? As so many citizens rend their garments with love or hate over Trump, can they even name their state legislators? But can we blame these nationally-focused citizens? The federal government has taken over a huge role on healthcare and education that would be totally foreign to the philosophy of our Founders. The Populist Era brought the 17th Amendment taking away the legislature’s power to appoint U.S. Senators. Now, we have nearly 20 initiated measures going around the legislature’s most basic legislative role. Is it odd that in a sovereign republic of South Dakota we find ourselves asking what is the purpose of our elected representatives?

    This becomes a vicious cycle with our liberty in peril. As our society further empowers national figures, media, and government we don’t know the purpose of our state government. As we follow every tweet of POTUS, we don’t have a grasp on the proper role of our legislator who our Founders would have hoped would be more important to our civic life. Thus, our liberty is squeezed by an overbearing national government and swinging populist sentiments found in the direct democracy of initiated measures with few mediating institutions left in between that de Tocqueville found so important to this unique experiment in self-government.

    I would propose eliminating initiated measures and moving toward a restoration of the proper roles of government to secure liberty.

    1. KM

      Joe – “The federal government has taken over a huge role on healthcare and education that would be totally foreign to the philosophy of our Founders.” – This is absolutely spot-on, we could also include roles in banking, environment/land usage & business. I appreciate you taking time to share your thoughts, very well said.

  12. Troy Jones

    Joe,

    Good comments. I don’t have time to overlay an analysis how the French Revolution went from “liberty, equality, fraternity” to the “reign of terror” but it shows what happens when populism goes off the rails to extremism.

    Just to be clear. I think your history is good and it is properly applied. The confusion of federalism is a significant issue with regard to the dysfunction of our government. Again, cogent and concise comments and thoughts.

    That said, I think there is a narrow role for the initiative in our federalism system and eliminating them in total will not fix the dysfunction. In fact, it might make it worse.

    Initiatives used rarely and with proper focus are in short “mini-revolutions” that remind the three branches of the State and three branches of the Feds who is the master and who is the servant.

  13. Troy Jones

    P.S. I forgot to include in my first paragraph (happens when you start something and get interrupted over the course of several hours) that a case can be made that the French Revolution started falling apart when dysfunction between Departments (comparable to our states) and the national government started the race to factional extremism “requiring” the use of the guillotine to resolve issues.

  14. Joe

    Thanks for your comments, Troy. It seems clear that you, Lee, Mark Mickelson and I all see problems with the status quo of initiated measures. We differ on potential solutions, but defining the scope of the problem is the first step. I’d consider myself persuadable to some very limited use of initiated measures, but I think a core part of our problem today is a legislature that has been made impotent to play its proper role.

    1. Anonymous

      Curtailing the right of the people to engage in direct democracy won’t do anything to curb the expansion of the federal government, Joe. Just the opposite.

      And if the state legislatures did a better job of accurately representing their constituents, many of these initiated measures wouldn’t be necessary. Take cannabis for instance. The majority of Americans support legalization — and the overwhelming majority support legal medical use — but almost all the legalization efforts (among the states) have been by way of initiated measure, not through the legislature. And the vast majority have passed, usually by overwhelming margins.

      Clearly the people are not being properly represented on this issue, as with many others. As such, it would be a travesty to prevent them from exercising their well-established rights to directly engage the process.

      1. Joe

        Two key points in reply:
        1. “Direct democracy” has inherent danger and was feared by our Founders, and the structure of federalism was based on representation as a republic instead.
        2. Eliminating initiated measures wouldn’t “curb the expansion of the federal government” directly. However, it would be one step in the right direction of re-calibration of our federal system and balance of powers originally designed to protect our liberty. You say the legislature isn’t responsive and isn’t “accurately representing their constituents”. Well, this is because the system we have lets them do that. When we try to hold them accountable, they can just pass the buck and point to another process (in this case initiated measures). The only way to hold elected officials accountable in a republic is to know what their role is and vote them out when they aren’t responsive or “representative” of their constituents. When a state legislator can just say “well, the feds really run education”, or “well, the feds really control health care dollars”, or “that would be a good initiated measure”, what does a legislator have to be held accountable for?

    1. Anonymous

      On recreational, yes, but on medical, you’re gonna get trounced. South Dakota will always be late to the game on this issue, but by and large the people (Americans in general) are becoming wise to the folly of the war on drugs, especially when it comes to marijuana. Medical passes with 60% or more. Yes, I’ll take that bet. We can square up at the 2019 bar convention.

        1. William Beal

          Agree, the measure is so poorly written that even though I would support medical use, I can’t vote for it.