There’s been a bit of fuss on line over Senate Bill 166 which, in case you’re wondering, intends to alter the determining the number of signatures needed for the ballot. The language of the measure notes:
SENATE BILL NO. 166
Introduced by: Senators Brown, Lederman, and Novstrup (David) and Representatives Stalzer, Bolin, Gosch, Haggar (Don), Rounds, Solum, Westra, and Wink
FOR AN ACT ENTITLED, An Act to revise the method used to calculate the petition signatures to place initiated measures on the ballot and to declare an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 2-1-5 be repealed.
2-1-5. The total number of votes cast for Governor at the last preceding gubernatorial election, shall for the purposes of this chapter, be the basis for determining the number of petitioners required.
Section 2. That chapter 2-1 be amended by adding thereto a NEW SECTION to read as follows:
For purposes of this chapter, qualified electors shall mean the total registered voters eligible to cast a ballot for Governor in the preceding gubernatorial election as determined by the secretary of state.
Section 3. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval.
What the measure states is that the number of petition signatures required for placing a measure on the ballot is not based on the “total number of votes cast for Governor at the last preceding gubernatorial election,” but “the total registered voters eligible to cast a ballot for Governor.” There have been some fussing on-line over the move to revise the definition. Some are calling it an attack on the power to petition, and noting that all the legislators proposing it hate cats and woodland creatures, etc and so on.
But playing devil’s advocate there are a couple of things worth pointing out. Because much of the criticism ignores it.
For the first part of it, I go to the state constitution:
§ 1. Legislative power–Initiative and referendum. 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.
This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.
It would appear that the corresponding provision in the state constitution requires that no more than 5% of the qualified electors of the state shall be required to invoke either the initiative or the referendum.
Just like the measure being proposed.
A little history on the constitutional provision – this portion of the State Constitution was solely amended in 1988, despite multiple attempts previously to do so. What changed? A former requirement which mandated the legislature formally ratify an initiative to appear on the ballot was removed:
Aside from that sole amendment, the constitutional provision has remained unchanged since 1898. In comparison, the SDCL 2-1-5 has been in it’s current form only since 1976. (I’m going to have to do a little more digging when I’m in Pierre on Tuesday or Wednesday for the specifics on that change in the law.)
But, when you dig into it, 2-1-5 is almost a little out of place.
As opposed to being something arbitrary that legislators are coming up with off of the top of their heads, the change that’s being proposed in Senate Bill 166 is to make the definition in statute mirror the definition in the state constitution.
But it’s not just the constitution. Other portions of state law also note the larger requirement. Take SDCL 2-1-1:
2-1-1. Initiative petitions–Number of signatures required. All measures proposed by initiative shall be presented by petition. The petition shall be signed by not less than five percent of the qualified electors of the state.
Read it here. What? It says right there that “The petition shall be signed by not less than five percent of the qualified electors of the state.” But that’s not the requirement. And the confusion doesn’t get any better.
SDCL 2-1-3 notes:
2-1-3. Referendum–Laws subject to petition–Form. Any law which the Legislature may have enacted, except one which may be necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, shall, upon the filing of a petition as hereinafter provided, be submitted to a vote of the electors of the state at the next general election. Such petition shall be signed by not less than five percent of the qualified electors of the state. The form of the petition shall be prescribed by the State Board of Elections.
Read that here. And only then we get to SDCL 2-1-5:
2-1-5. Total vote used to determine number of signers required in petitions. The total number of votes cast for Governor at the last preceding gubernatorial election, shall for the purposes of this chapter, be the basis for determining the number of petitioners required.
I sense an issue of inconsistency here, muddied with contradictory laws. Both the initiated measure law, and the referendum law are consistent with the constitutional definition. And then we have SDCL 2-1-5 tossed in to revise those laws, despite the fact they’re still in force.
Are you thoroughly confused yet in trying to figure out how 2-1-1 & 2-1-3, play against 2-1-5 in the big scheme of things? I doubt you’re alone. Yes, changing SDCL 2-1-5 will raise the number of signatures some. But it will also make it consistent with two other laws governing the same thing, as well as the state constitution.
I guess it all depends where you think the line be drawn in determining the number of signatures needed for the ballot. Historically, for every good measure on the ballot, we’ve had more than our share of nutty Informed Jury, Jail for Judges, and Open and Clean Government initiatives paid for and ran by out of state organizations using South Dakota as the beachhead for launching privately funded assaults on laws nationwide.
But what do you think? Is this a hurdle too far, or is it time to remove the misplaced law, and place the requirements for initiated measures back to what our constitutional framers intended?