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Republican-Backed Bills Complicate Citizen Lawmaking

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Statehouse Coverage
Rueben Engelhart displays a 2018 ballot-measure petition.
Courtesy of Tyler Busch

In the lingo of South Dakota petition circulators, it’s called the “beach-towel effect.” 

The term describes the massive, folded-up sheets of paper that petition circulators carry as they gather signatures to put a proposed law on the ballot. 

The Secretary of State’s Office says the full text of a petition and its signature lines must be contained on a single sheet of paper. For complex proposals, those single sheets of paper may grow to several feet wide and tall. 

Now those sheets of paper might get even bigger. This winter, South Dakota’s Legislature passed a bill requiring the font size on petitions to be at least 14 points.  

Republican Sen. Al Novstrup, of Aberdeen, said the font on medical marijuana petitions last year was too small. He estimated it was 6 points. 

“I was just unable to read it,” Novstrup testified, “and I would estimate that approximately half of South Dakotans were unable to read that particular font size.” 

But Democratic Sen. Reynold Nesiba, of Sioux Falls, said the bill exacerbates the beach-towel effect. 

“Simply increasing the font size on a giant piece of paper that’s folded up multiple times and on a clipboard is not going to help anybody,” Nesiba said. “It’s just going to make that beach-towel-sized petition become a little closer to the size of a bedsheet.” 

Nesiba proposed an amendment that would have allowed petition circulators to carry two sets of paper – one with the signature lines and a short explanation of the measure, and another with the full text of the proposal in 14-point font on regular-sized paper. The amendment was rejected. 

The font-size bill – which is awaiting the governor’s signature – was one of several changes to the initiative and referendum process that passed through the Legislature this winter with Republican support. 

“The Republican Party,” Nesiba said, “is engaging in a systematic attack on the initiated measure and initiated constitutional amendment process.” 

Direct democracy debated 

During a debate on one of the bills, Republican Rep. Steven Haugaard, of Sioux Falls, said he doesn’t like it when citizens make their own laws. 

“We started out as a republic,” Haugaard said. “Sadly, we’re tending in the direction of a democracy. And that democracy was only intended to be going to the polls to vote for your elected representative.”  

Haugaard lamented the state’s 1898 authorization of statewide initiatives and referendums.  

“It’s become a way that certain interest groups can get something accomplished outside of the legislative process,” he said. “And I think that does great damage to our republic.” 

South Dakota was the earliest state to authorize statewide initiatives, which are citizen-proposed laws, and referendums, which are citizen attempts to repeal or change existing laws. 

In recent years, Democrats have used the approach to enact laws they couldn’t get passed in the Republican-dominated Legislature. Voters have approved Democrat-supported ballot measures to legalize marijuana, stiffen anti-corruption laws, cap interest rates on short-term loans, and raise the minimum wage.  

Nesiba said Republicans fought back this winter during the legislative session. Some Republicans said they were trying to improve the initiative and referendum process.  

Setting a 60 percent threshold 

One bill that passed both chambers would alter the threshold required to pass a ballot measure. Instead of a simple majority, ballot questions that raise taxes and fees or obligate more than $10 million in state spending would require a 60 percent majority to pass.   

Republican Sen. Lee Schoenbeck, of Watertown, said the proposal would help prevent outside groups from using South Dakota as a laboratory for costly ideas.  

“This comes to us so that we can have one more protection built into our election process if groups come – and these days, it seems like they’re mostly not from here – and if they want to put a tax increase on our ballot, or they want to spend over $10 million, they have to get a 60 percent vote,” Schoenbeck said. 

Nesiba said Republicans want to make it harder to pass a ballot measure.  

“It’s darn hard to put a measure on the ballot and to get it passed,” Nesiba said in testimony on the bill. “And if there's any protections that need to be done today, it’s about protecting the rights of our citizens – of your constituents – to go out with an idea, to gather signatures and to put it on the ballot. That’s what needs protections. We’ve been eroding it all session.”  

Because the 60-percent threshold would alter the state constitution, it has to be submitted to voters. Republicans decided to put the proposal on the ballot for the June 2022 primary election.  

Nesiba called that “a preemptive strike against Medicaid expansion.” Democrats are attempting to petition an expansion of Medicaid eligibility onto the November 2022 general election ballot. The expansion would cost more than $10 million to implement, so if the 60 percent threshold is in effect by then, the measure will need 60 percent to pass. 

Comment period, single-subject certification 

Another bill – which passed both chambers and awaits the governor’s signature – affects the official explanation needed for ballot measures.

Petitioners have to obtain a short explanation from the Attorney General’s Office before they can start gathering signatures. A bill approved by the Legislature would establish a new 20-day public comment and revision period after the explanation's publication.  

Republican Sen. Mike Diedrich, of Rapid City, said the comment-and-revision period will produce a better result.  

“This allows a little more input into the process to make sure that that explanation is clear,” Diedrich said.  

But Nesiba said it robs petition circulators of time they need to gather signatures.  

“The main effect of this – whether it was intended or not – the main effect is simply to make it harder to put measures on the ballot,” Nesiba said while testifying on the bill. “So if you want to make it harder for South Dakotans to bring redress of grievances to their government and put something on the ballot, then vote for this.” 

Another bill passed by the Legislature and sent to the governor affects proposed constitutional-amendment initiatives. The bill would require the initiative’s proponents to obtain certification from the Secretary of State’s Office that the initiative adheres to a single-subject requirement in the state constitution. 

Meanwhile, efforts are already afoot to place measures on the general election ballot in 2022. Besides Medicaid eligibility expansion, another measure would strip the Legislature of its power to draw legislative district boundaries and transfer that power to a bipartisan commission of registered voters. 

The required number of petition signatures from South Dakota voters to place a measure on the ballot in 2022 is 16,961 for initiated and referred laws, and 33,921 for initiated constitutional amendments. 

-Contact reporter Seth Tupper by email.