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 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
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”
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.