Where should the line be drawn in determining the number of signatures needed for the ballot?

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:

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.

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 That § 2-1-5 be repealed.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.

Follow SB 166 here.

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.

Read that here.

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.

Read that here.

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?

40 thoughts on “Where should the line be drawn in determining the number of signatures needed for the ballot?”

  1. Technical questions – that’s why we have a court system, isn’t it?

    Very nice try at an attempt to poo-poo the agenda behind this. It’s painfully obvious that the Republicans behind this are acting out on anger that a liberal idea – raising the minimum wage – was proposed under current law and that subsequently a huge majority of the voters agreed it was the right thing to do? A large number of Republican citizens voted for it!

    So instead of persuasion, it looks like the Republicans in the Legislature are working to move us toward even more coercion and less democracy. So in essence Brown and company are advancing the fundamental neo-conservative ideal of less democracy and more concentration of power by those who can be purchased.

      1. You are so funny about the black helicopters.

        These guys are trying to make South Dakota less democratic. And that is wrong. But very typical of Republican ideals.

        Who in this room isn’t clever enough to figure out that the impetus for this is the overwhelming passage of the liberal minimum raise? Raise your hand if you’re not clever enough to sort that one out.

        1. Far more money is at stake in putting a 36% rate cap for payday lenders on the 2016 ballot than the dollars involved in the minimum wage bump. That and a couple other things indicate to me, if there are deeper reasons, this might be about keeping the rate cap off the ballot.

          1. You’re right Steve. The usurers have a much easier time hiring lobbyists than do the poor people. I’m not sure the citizens of South Dakota would be very sympathetic toward them if their practices were put on the ballot.

    1. yeah like non-republicans (democrats) are the ones not being bought. crony capitalism anyone?

      1. They’re all being bought and paid for. It’s just that it’s the Republicans who are trying to move Democracy farther away from the citizens. Great idea for the purchasers. Horrible idea for the citizens.

        1. actually, if we end up with something that cleans up the inconsistencies listed above and was more in line with the constitution it would be more helpful than allowing the inconsistencies to continue. certainly if the legislature passes this and the governor signs it, it can be held up by virtue of putting it to a referendum, and hopefully the signatures to make that happen could be gathered quickly, before the higher threshold is allowed to take effect.

          1. It has been working well for a long time now. No need to fix it – especially since that’s the only way South Dakotans can get some laws passed. The Democratic party is so incompetent they can’t get a bill out of committee, much less pass something that represents the will of the citizens. And, of course, too many Republican legislators are not there to represent the citizens, either. To put it in words you may be able to understand – if it ain’t broke, don’t fix it.

            Laws that pass with an emergency clause can’t be referred. Isn’t that interesting? Hence the emergency clause. I think Rev. Hickey’s perspective is so accurate – this is a prophylactic effort to stop a referred law that would damage the usurers in the state.

  2. Pat,

    Personally, I think ballot clutter is already nearly a problem. Just look at the results of top of ballot initiatives vs. bottom of the ballot. The former wins a lot more than the latter. This tells me that after awhile the voters just say no without regard to merit. In my opinion, the higher threshold will insure lower quantity and more importantly greater quality with regard to voter consideration.

    1. I guess if it’s “nearly a problem,” something must be done! Just another oozing crock of disingenuous paternalism by the great pontificator.

      These Republicans are trying to move democracy farther away from the citizens – which I think you’re on the record as supporting as a good idea. But it’s a bad idea and it’s bad for South Dakota citizens.

      1. wait, i’m beginning to understand. my guess is that you think that republicans are trying to move democracy farther away from the citizens. how do i know? you only repeat it for dramatic effect in every post you write. ooooh drama.

        1. Not all Republicans are trying to move democracy farther away from the citizens. We will find out soon enough, though which want to do it. I’m not writing it for dramatic effect. I’m writing it often enough so even you can get it. Mission accomplished!

  3. If this makes it to the House, I’ll offer a hog house amendment that any substantive change to our IM process, except filing deadlines and challenge procedures, can only be made by the voters not the legislature. If there are GOPrs who think we need to make it doubly hard for grass roots citizens to effect change, let those GOPrs go out and collect signatures to double the signature requirement.

    Hard to imagine, but if party dominance were to one flip flop in our state, it’s not hard to imagine GOPrs regretting making this kind of change.

    And then we look like fools as we do now trying to change back the daschle law because today Thune may want to run for two offices.

    In 2006 and 2008 Vote Yes for Life would not have made it on the ballot if these signature requirements were double. Two weeks before the deadline in 2008 we were 5000 signatures short. I personally got in my car and did what we called the Urgency Tour– I stopped in 12 cities and spoke to about 300 pastors and we crossed the finish line. Senate bill 166 hurts grass roots prolife efforts in SD.

    1. A more micro example taken from the City of Sioux Falls.
      9-20-1. Percentage of voters required to propose ordinance or resolution. The registered voters of any municipality may propose ordinances and resolutions for the government of the municipality if the petition is signed by at least five percent of the registered voters in the municipality. The percentage shall be based on the number of voters of the municipality as determined by the county auditor from the master registration file of registered voters in the municipality as of the time of the filing of the petition mentioned in § 9-20-2.

      1. Kelly have you ever been a part of a statewide ballot initiative signature drive?

        Those who have will tell you it’s quite a challenge. Making it doubly hard will ensure only those groups that can afford professional signature collectors will get on the ballot. This is one small step for big lobby’s and a giant leap for grass root citizens.

        1. Sorry, didn’t mean to address that reply to you specifically. However, you are a Sioux Falls resident. Feeling oppressed ? Governance by anecdote is no way to govern. As much as you seem to enjoy your martyrdom, this isn’t about YOU. Can you acknowledge the historical inconsistencies ? Initiatives are serious business and they should be beyond the whimsical or emotional. They should be serious and organized. They should have statewide appeal and outside the influence of population centers and BIG money. As I’ve said, if you have a cause worthy of your effort, get in your car and enjoy our South Dakota experience.

            1. I personally think a candidate who claims they are independent and not be holding to the Republican or Democratic Parties should be required to have at least a 100 suckers.. errrrrrr, I mean registered voters, sign their legislative petitions.

            2. Of course you wouldn’t. I would argue that the same principle applies. Why should it be easier to manipulate the state that you live vs your city ? NE, WY, MT have initiative thresholds similar to somewhat higher as to what is being proposed. Nearly similar to somewhat lower in ND. And no public ballot access in MN and IA. And not one is calculated the same.

  4. from earlier: “In 2006 and 2008 Vote Yes for Life would not have made it on the ballot if these signature requirements were double. Two weeks before the deadline in 2008 we were 5000 signatures short. I personally got in my car and did what we called the Urgency Tour– I stopped in 12 cities and spoke to about 300 pastors and we crossed the finish line. Senate bill 166 hurts grass roots prolife efforts in SD.”

    kind of a two-edge sword there, eh democrats?

  5. Everything else, it seems, is based on “qualified electors”. Makes sense to either change this one to match or change all the others to match this one.

    Nor is it a bad thing to make it a touch more difficult to get initiatives on the ballot. There’s a reason we have a democratic republic rather than a strict democracy, and it’s a good reason.

    For myself, though, I would not “declare a state of emergency” regarding this. I don’t think it’s all about Rep. Hickey – I think it comes more from the Democrats’ minimum wage initiative. Still, it’s not an emergency and we can let it take effect in the usual course.

    1. or have a group like u-s term limits come blasting in here and support a referral to stop the altering of initiatives and referrals. that’s the problem, out of state groups that come blasting in to enact this or that social experiment on us. it’s not about the minimum wage ballot issue, it’s about a whole decade’s worth of crap to hit the ballot in this state.

    2. The reason they’re declaring an emergency is to make it impossible to refer the law they are getting ready to pass. Of course, the level of votes needed to declare an emergency is higher, but necessary because there are going to be a lot of angry Republican voters out there when this passes.

      Does anyone know what the governor thinks about this?

  6. This will no doubt lead to an increase in the use of paid signature gatherers, an issue that Sen. Lederman voiced concerns about last summer.. (that’s a whole other debate) but now he’s co-sponsoring a bill that will actually trump up the “problem” he wanted to stop. Increasing the required number of signatures, whether it’s “just about using consistent verbiage” or plainly a GOP power-grab as we all know, it’s a bad idea that only strengthens the barometer to filter out grassroots citizen-led efforts and restrict the process to only the highly-funded pay to play efforts.

    If you think “fixing” an initiative process that isn’t broken is the solution to “cleaning up the ballot” then maybe you should compare SD’s ballot to state’s like California, Colorado, Massachusetts, Missouri.. wow there’s at least 10 other states I could list that generally have more ballot issues to vote on every year than us. In the last election how many did we have? 2 referred by citizens and 1 referred by the legislature.. Come on now Sens. Brown & Lederman, you have a lot of explaining to do when you get back home to convince the people you’re trying to fix valid problems and not attempting to work your way up the power-ladder by placing undue burdens on our rights and democracy. Good luck clearing this one from your reputation.

    Our state and national founding fathers are rolling in their graves……… The legislature only meets for 2 months out of the year and waste time trying to make the democratic process harder for citizens to engage? SHAME ON ALL OF YOU!

    Good luck on your hog house amendment Steve, I hope we stop SB-166!!

  7. Right now Corey Brown is thinking, “Maybe the lobbyist who talked me into being the bloody nose guy on this “innocent” little bill is not my friend…”

  8. the actual fact is that south dakotans are usually smart enough to negotiate the shoals when the issues at hand are clearly explained. rounds’ senate win is a large-scale proof of this. regarding the minimum wage vote, south dakotans will get an economics lesson they asked for when part time jobs dry up and consumer prices rise so that THEY are paying the cost of the higher wage required by the law. it’s all good. the system works as it is. let it alone.

    1. frankly, the dictates of ahca are already making part time jobs dry up and prices rise, so that’ll probably get lost in the shuffle. good timing there by the ballot issue proponents.

  9. If the argument is “moving away from democracy,” maybe we should let the people vote on everything. Logic cuts both ways too.

    The reality is that democracy is also supposed to be work. With the advancement in technology and ability to organize, getting signatures are a lot easier than they were just 20 years ago. This might be just making the effort required to have democracy effectively the same.

    But, the whiners will whine. Nothing new.

    1. Troy, you are talking about a result. I am talking about an action by a group of legislators that we all know wants to make it more difficult for citizens – Republicans and Democrats and others – to do the work that the legislature refuses to do.

      If this were a Democrat idea in a Democrat-controlled state, you would be going bonkers over it. Thus my legitimate claim that you have been and continue to be a dogmatist. You must get tired of defending stupid ideas run out by the party you love – much like I did back in W’s first term.

      And it’s a nice attempt at extrapolation, but that number line runs both directions. So for the sake of this discussion, why don’t we just stick to the facts:

      1. South Dakota citizens have had this option for a long, long time and as a state they have done quite well by it.

      2. There is not one harm that has been produced by this option.

      3. Corey Brown, his cronies, lobbyists and other Republican operatives are trying to modify that option to make it more difficult – move all South Dakota citizens farther away from democracy.

      4. The audacity of sticking an emergency clause is unbelievable. Even a dogmatist like you must be shaking your head on that one. Of course, you may think it’s clever politics. I think it’s dirty and shows an incredible amount of bad faith toward the citizens of South Dakota.

      5. To lessen a citizen’s freedom – especially when it comes to election issues – is un-American. Isn’t that what you and your disciples in here always complain about when it comes to the federal government?

  10. Olly,

    I’m not even going to get into your obvious capacity to see into the hearts of people and discern their motives, especially people you likely don’t even know. Its truly supernatural.

    But, I will comment on your more earthly statements by number:

    1) We have had a lot of things since statehood. And, ever year, we call the Legislature together to change things. Its what happens in a democracy.

    2) So, we should just wait until we are like California which has dozens of issues on the ballot every year? Personally, I’m opposed to ballot clutter whereby each issue gets fair discussion and attention.

    3) There are two forms of democracy: Direct Democracy where citizens decide everything and Republican Democracy where elected representatives decide everything. Initiatives and Referendums is just a slight hybrid. Your statement is false. Moving more toward Republican Democracy or Direct Democracy isn’t moving away from democracy. Just its form.

    4) I think the emergency clause has become something other than intended. It is really an expediancy clause (meaning if it is broadly supported, it can go into effect more expediantly). Audacity is in the eyes of the beholder based on their view of the bill. I’m pretty sure there have been bills you supported with the “expediency clause” and appreciated it for what it really is.

    5) The American system of democracy is principally a Republican form of Government. The claim of this being un-American is false on its face.

    Look, there are reasons for keeping it where it is. I have not formed my position yet. I want the opponents and proponents to give real analysis of why we would be better served to keep it where it is. My principal priority is to find the right balance of effort to get on the ballot to prevent excessive (subjective I know) quantity of issues on the ballot in any one year.

    1. ‘audacity’ and ‘arrogance’ get thrown around by audacious and arrogant people in here a lot.

    2. More male bovine excrement from the Great Pontificator!

      Got a couple questions for you here.

      1. Who but lobbyists for the payday loan guys and angry Republicans called on these guys to change something that has worked for so long?

      2. Where is there any evidence that South Dakota is becoming like California?

      3. Isn’t your comment more akin to “we don’t really kill the hog when we put it through the butchershop. We just change its form?

      4. Are you serious? Do you really think that the sponsors had in mind expediency over non-referrability?

      5. So what does that have to do with a state elections option that has worked for 117 years?

      Troy, I enjoy a good piece of fiction as well as the next guy. I really do. But when you take fiction and try to persuade us that it’s fact, it really is an afront to good will.

      Now if you have absolute belief in everything you just posted, then that’s ok. But I think you probably don’t believe a word of it. Like I said earlier, if this was a bunch of Democrats proposing this, you would laugh it right out of the capitol building.

  11. Olly,

    1) I don’t know. Do you have evidence for your innuendo and charge. I presume all legislators (Republican and Democrat) have good motives unless I see evidence clearly the other way. And just because I disagree with him, I don’t think I have evidence.

    2) This is the first time in my memory of a Legislator announcing before session (rather using the process he was elected to use) announce an Initiative and another legislator announcing it during session. Plus, the SD Dem. Party seems to have decided that rather than concentrating on electing Dems to the Legislature, they are going to divert resources (time, effort, money) to pursue Initiatives. We might not be California yet but we might get there. Wouldn’t it be better to be pro-active?

    3) Huh? There is Republican Democracy and Direct Democracy. Both are forms of Democracy. So long as we are moving between the two, there is no deviation from democracy. Just its form.

    4) I’ll say it again. The emergency clause is used for something other than its original intent. Personally, I think it is used too much and think it should be used as intended. That said, for virtually since Statehood, it has been used for multiple reasons. To get bent out of shape on this use and never before (Dems support its misuse as often as Republicans. In fact, I’ve actually seen them bargain to get it on) seems to be me to be disingenuous.

    5) You are the one who said this was Un-American. I just said maybe not as pointedly as I should, the American system is more Republican Democracy than Direct Democracy and greater use of Direct Democracy is a deviation from the norm. I’m not making this argument but the case is stronger to say greater use of Direct Democracy is the more “un-American” form of democracy.


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