This interview originally aired on "In the Moment" on SDPB Radio.
When South Dakotans cast their ballots in November, they'll be making their voices heard on seven state ballot questions.
Our Dakota Political Junkies are here to walk through those seven questions and what a "yes" or "no" would mean for the state.
Jonathan Ellis is co-founder of The Dakota Scout, and Tom Dempster is a former South Dakota state senator.
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The following transcript was auto-generated and edited for clarity.
Lori Walsh:
When South Dakotans cast their ballots in November, they will make their voices heard on seven state ballot questions. Our Dakota Political Junkies are here to walk through those questions and what a "yes" or "no" would mean for the state.
We're just getting started with a preview. Of course, every journalistic organization in the state is going to do a deep dive into all of these, but let's get started.
Jonathan Ellis is co-founder of The Dakota Scout. Tom Dempster is a former South Dakota state senator and they're seated around the table from me in SDPB's Kirby Family Studio.
Senator Dempster, welcome back. Thanks for being here.
Tom Dempster:
Lori, I'm absolutely delighted to be here. Thank you for the invitation.
Lori Walsh:
Editor Ellis, thank you very much for being as well.
Jonathan Ellis:
Hey, anytime there's a ballot issue party, I want to be invited.
Lori Walsh:
All right, so seven questions which harkens back to the beach towel ballot of 2016, which had 10 questions, including Initiated Measure 22, which was expansive ethics reform legislation and there were a lot of questions about how much can go on the ballot and how easy is it to get something on the ballot. There was a whole task force set to study this.
And so, here we are with seven questions, which is not as long, but still, Jonathan Ellis, important.
Jonathan Ellis:
Yeah, and one of the seven is actually from the legislature.
Lori Walsh:
Two are.
Jonathan Ellis:
Are two of them?
Lori Walsh:
The gender-neutral language for the governor and Medicaid work requirements.
Jonathan Ellis:
Medicaid work requirements, I forgot that. Yes, that's correct.
And then so two of them are, and then we have one that's referred by voters. Voters have had that power since 1898. And so they can take a law that the Legislature passes and then say, "Hey, we want to weigh in on this."
Lori Walsh:
That's a potential repeal of Senate Bill 201, which is that carbon pipeline. Really hard-fought but controversial legislation. So we'll talk about that in a moment.
So four constitutional amendments and three initiated measures, one of which is a referred law.
Tom Dempster:
Yep.
Lori Walsh:
Is everybody still with us? We'll start throwing more numbers at you. So let's start with those amendments.
Tom Dempster:
Let me step back for just a minute.
Lori Walsh:
Good idea.
Tom Dempster:
Is it a good idea?
Lori Walsh:
It is.
Tom Dempster:
You sure about that?
Lori Walsh:
Well, keep going, I'll let you know.
Tom Dempster:
For me, this is the election this year. The presidential election in South Dakota is all but a foregone conclusion. There's no governor's race, there's no senate race. I'm going to suggest that maybe the U.S. House race is all but a foregone conclusion.
But what's really important are these constitutional and these initiated measures. These measures are the election in November, and the consequences of these measures are absolutely extraordinary.
Lori Walsh:
All right, deep breath. So it's time to start learning about what we should do.
Abortion, Jonathan, is a constitutional amendment. One side is calling it the abortion amendment. The other side is calling it the freedom amendment. Seven states, I think, have voted on abortion in one way or the other since Roe V. Wade was overturned in 2022. Six states, including South Dakota, will be weighing in on some kind of abortion legislation this year.
Where do you want to begin with what the controversies are of this or what the opportunities are? What is sort of the political landscape, I guess, of this abortion amendment that you think is relevant?
Jonathan Ellis:
Well, you referenced other states that have weighed in on this, including some red states, and all of them have voted to either expand or maintain abortion rights. And I think if you would've told people who were pro-choice prior to Roe V. Wade being overturned, that it would actually be better for abortion rights state by state, they'd be surprised. But this is what's happening. And I suspect given the history of votes in this state, we're likely to see that outcome here as well.
And if it does succeed here, it will loosen restrictions on abortion much more than what existed prior to the trigger law going into place in 2022 when Roe V. Wade was overturned.
Lori Walsh:
How so? Because that's not what the proponents say. They say, "No, it is going to be exactly what we had under Roe, V. Wade."
Jonathan Ellis:
No, there were some pretty strict measures and regulations that had been in place that the legislature had enacted again, over the years trying to get as close as they could to restricting abortion. Well, those go away. They went away when the trigger law went into effect.
But if abortion comes back, those regulations would not be in place. And so they try to say, "It's just bringing back Roe, V. Wade." Well, within the context of Supreme Court decisions over the years, legislatures did have the authority to—
Lori Walsh:
Like a waiting period.
Jonathan Ellis:
Waiting periods, mandatory doctor consults.
Lori Walsh:
This is the language you have to use. But those things could come back in the future. If this amendment passes — Tom, maybe it's a good time for you to jump in — lawmakers could turn around too. Well, it's a constitutional amendment.
Jonathan Ellis:
It's a constitutional amendment.
Lori Walsh:
I suppose to understand what power would they have after this is passed to say, enact a waiting period or your doctor must say this to you.
Tom Dempster:
Oh, you could probably dance around some of the constitutional measures, but that's pretty difficult to do. That's extremely difficult to do.
Lori Walsh:
They might not want to, depending on what the voters say and how many of them say it. What would be the political—
Tom Dempster:
Well, let's remember that this isn't the first time that the people have voted on this or referred this. This isn't the second time that people have referred this. This is the third time.
The first time that they overturned the legislature. The second time they overturned the legislature. And I would guess this third and hopefully final time, they will overturn the legislature again.
What is it? Some 65%, 67% of Democrats support this bill. Some 55%, 60% of Independents support the bill. Even Republicans, I think, it's some 45% of Republicans support the bill as opposed to 30% of Republicans who oppose the bill.
In my opinion, most people, we've been at this issue for a long, long time. Most people already know how they're going to vote on this bill.
Lori Walsh:
Interesting.
Tom Dempster:
Or on this constitutional amendment.
Lori Walsh:
On this constitutional amendment. All right, Medicaid work requirement. This is a Senate joint resolution. So voters passed Medicaid expansion in 2022 and it was enacted and now the lawmakers are saying, "Hey, let's put in the constitution that we can put that the lawmakers are allowed to put in work requirements." Do I understand that correctly?
Tom Dempster:
You do. And by my take, the two extremely talented legislators, majority leader Casey Crabtree and Tony Venhuizen over in the house sponsored this joint resolution. I believe that only the state of Georgia has a work requirement. That would make South Dakota the second state that would do that.
I'm not certain of the impact because there's all sorts of provisions within the federal statutes. I think it's more of a statement of intent than it is a statement of purpose.
Jonathan Ellis:
It would allow waivers if the event comes up that you could seek a waiver. And I will say that Wisconsin voters approved something very similar to that and it was very widely popular. Now, I would expect that the health lobby, which is pretty powerful, will mount a pretty vigorous campaign against that.
But on the face of it, most people are like, "Well, yeah, you should have to be able to work in order to get a government subsidy or whatever." And so they have to overcome that mentality. Again, I think it polls fairly popular with voters in other states. I can't see why it wouldn't necessarily be popular here.
Lori Walsh:
How does the fact that voters were fairly educated about this in 2022 about Medicaid expansion? It reminds me a little bit of minimum wage where voters said, "We want this." Lawmakers said, "Well, not for kids under a certain age." And voters referred that and said, "No, we told you to do this with the minimum wage." This kind of feels familiar to me. It's like, "We told you to expand Medicaid." Could you see voters saying that?
Jonathan Ellis:
I would say this. The voters don't have an option as a ballot issue goes through saying, "Hey, let's amend it so it says this." There's not a process that plays out in the Legislature the way you fix things during the process.
And so this is sort of a natural extension of maybe voters saying, "Yeah, we gave it an all-or-nothing here one year, but there are some fixes we would want to do later." I think it's a legitimate process.
Lori Walsh:
Yeah. One more amendment we'll quickly touch on, which is this changing of the he and him pronouns in the state constitution to the governor, basically because we have a female governor now and lawmakers referred this to in a joint resolution to say it should say, "The governor may do this. The governor may do that. The lieutenant governor may do that" instead of he may or he may. This seems like a fairly easy constitutional amendment. Lots of states are down here looking at their language.
Jonathan Ellis:
It is. Vote yes and look deeper into the other measures that really do require your attention and focus.
Lori Walsh:
All right. How about some initiated measures? Well, let's start with marijuana. Recreational marijuana, which has quite a history.
This is another one, Tom, where this is the third time that voters are going to come forward and have something to say on this in recent memory. But yet it hasn't always been consistent. Sometimes voters have said yes, and sometimes voters have said no. Sometimes something was unconstitutional. We'll dive into that all when we have more time.
But what do you see in the initiated measure 29, which is legalization of recreational marijuana?
Tom Dempster:
Well, one of the things that always surprised me, can you believe that I ever had any political opponents on any of my bills?
One of the things that really surprised me is those political opponents or those political fights never go away. You might defeat a bill and just within two or three seconds, another bill is going to resurface. That's going to be exactly the same issue. And the same thing is true in marijuana. This is a fight. It's always been a fight. Many business groups oppose it because of insurance ramifications on their employees.
It's very complicated. This is the way we sort things out.
Lori Walsh:
Yeah. Jonathan, where should we start with this and we'll take some time on this initiated measure?
Jonathan Ellis:
Well, as you point out, this is the third time. It's kind of interesting because Tom pointed out that this was the third time on abortion, and this would actually be the third time on a grocery tax too.
The supporters of this measure, obviously they won in 2020 but then lost with the Supreme Court on the single subject issue and then lost again. And they think that the electorate will be similar to what it was in 2020. It's interesting that it's a very just like, "Hey, the initiated measure is very simple. It's just going to be legalized." And it basically throws it to the Legislature. "Okay, voters weighed in, now it's up to you to regulate this and give them really kind of a wide avenue to set the parameters if, in fact, voters approve this."
So that's unlike, for example, the 2020 ballot, which was very specific about how cannabis, medical cannabis, hemp, how all of that would be introduced and regulated.
Lori Walsh:
That was 2018, I think. Amendment A, 2018, which had both of them together. And IM 26, legalizing medical.
Jonathan Ellis:
I don't remember.
Lori Walsh:
Okay.
Jonathan Ellis:
Yeah. Maybe it was overturned by 2020.
Lori Walsh:
I'm going to look it up. I'm going to flip through my papers. You keep talking.
Tom Dempster:
While you're flipping through papers. Can we talk about open primaries? Do we get to change subjects or do you want to stay on it? Do you want to stay on marijuana?
Lori Walsh:
No. Because when I find it—
Jonathan Ellis:
2020.
Lori Walsh:
In 2020, South Dakota voters approved constitutional amendment A by a vote of 54 to 45 to legalize recreational marijuana. So see how I wrote down 2018 and it was 2020. So we're just fact-checking this stuff on the air.
Jonathan Ellis:
This is journalism in process.
Lori Walsh:
Got to look at the stack of notes.
Tom Dempster:
It's simple, just vote yes or no, right?
Lori Walsh:
Why are we here then?
Tom Dempster:
Exactly right.
Lori Walsh:
So in 2020, as I understand it or remember it, they were tied together, right?
Jonathan Ellis:
There were basically three major issues. Yeah.
Lori Walsh:
That's when it was said that it was a violation of the single-issue rule and that's why it failed.
Tom Dempster:
That's why it was overturned.
Lori Walsh:
That's why it was overturned. And then legalized marijuana for medical marijuana came into play. And now this is just recreational marijuana, but that failed in 2022.
Jonathan Ellis:
Yes, so there were separate proposals in 2020.
Lori Walsh:
Twenty-three to 47. Yeah.
Jonathan Ellis:
Yeah. There were separate proposals in 2020. And one of them was a separate medical and then amendment A had all of them lumped in together. And so both of those passed and it was amendment A that got struck down.
Lori Walsh:
Struck down. All right. So do you see a different electorate in 2024? Is it going to fail again? What's different now? And I want to go back to maybe what you were saying about who shows up in a presidential race versus 2022, but in South Dakota that's less consequential because we largely know how red the state is. So you have to get voters to the poll, but normally you would get more of them during a presidential election.
Tom Dempster:
Yeah, my guess, this time it fails. Just my guess.
Lori Walsh:
What do you think?
Jonathan Ellis:
If I were going to bet on it, I would probably bet on it failing as well. I still think it probably has a better chance than it did two years ago because the electorate will be a little bit different. Presidential races tend to, even though as Senator Dempster says, it's a foregone conclusion, they tend to bring out voters. So there's that. It might be a little bit of a different element than it was in 2022. And in 2022, you had some bigger races, statewide races as well that don't exist here.
Lori Walsh:
And to go back to that insurance question you had, this says, "The measure will not require employers to permit or accommodate employees engaged in the conduct allowed in the measure." So I'm reading that as saying that the private employer can still say, "You can't do that and work for me." Does that address the question that you think some business leaders had before?
Tom Dempster:
I don't know.
Lori Walsh:
We don't know.
Jonathan Ellis:
I don't know if that's legal to be honest with you. My wife's a lawyer and has had to research this issue, and I think there's some open issues there about whether that can actually happen.
Lori Walsh:
Right. All right. Like I said, we're doing a quick overview today of all of these, and then people will be diving deep into them. Which brings us to the open primaries, which we're going back to the amendments. So an open primary amendment, that's amendment H, which is a top-two primary. Explain it.
Tom Dempster:
Full disclosure. I'm part of the group that has initiated this measure and all we're saying is that there are 150,000 people, Independents, that are not able to vote in the most important election in the state of South Dakota and that's the Republican primary. I think it's somewhere between a half to two-thirds of our legislature is already elected through the primary system.
And we think it's fundamentally unfair that 150,000 Independents are excluded from that Republican primary. And if there is such a thing as party bosses in South Dakota, we also think that people don't like the fact that the head of the Republican Party has said, "We oppose." Head of the Democratic Party has said, "We oppose." That's probably what you would expect because parties want to preserve their capacity to have that guaranteed spot in the general election.
We think parties should have to work for that spot. We think candidates should have to work for that spot. Makes for a much more competitive, much broader top-two primary system that I think people will say is fair and absolutely necessary.
Lori Walsh:
Explain this part of it where the candidate selects the name of the political party to be listed next to their name on the primary cabinet. The party designated by the candidate does not imply an endorsement of the candidate by that party.
Tom Dempster:
Sure.
Lori Walsh:
Is that a change?
Tom Dempster:
No. Well, it is a change because this failed the last time it was up. And the reason it failed is because the initiative said that there won't be any party labels on candidates at all. That's a bridge too far. Now this has been reconstructed or rebuilt to say, "Well, of course state your party affiliation." And that only makes sense to me.
Lori Walsh:
Jonathan, do you want anything you want to add in how you're seeing this play out? The first thing I would say is that I'm watching the Olympics and I'm seeing a lot of ads for this one already.
Tom Dempster:
Oh good. I'm delighted to hear you say that.
Lori Walsh:
The first political ad that I've seen in South Dakota has been this ad on the Olympics that says, All these athletes are playing, but these—"
Tom Dempster:
Top two means the best two.
Lori Walsh:
Right.
Tom Dempster:
Thank you for letting me know.
Lori Walsh:
They've done a very early entry into the, "Hey, the Olympic audience is watching and they're making association with this."
Jonathan Ellis:
Smart.
Lori Walsh:
Which I thought was smart, effective campaigning as well. But what else are you hearing from people who may be opposed to it?
Jonathan Ellis:
Well, Tom obviously gives his side of it. And I think it's fair for us to say that there's another side of this.
Lori Walsh:
It's our responsibility to say that.
Jonathan Ellis:
I'm not an advocate for that side, but we should present it, shouldn't we? The political parties, they're private organizations and they should be allowed to set the rules for selecting their own candidates rather than a broader electorate who has no stake, for example, in a Republican Party or in a Democratic Party being allowed to voice how a private organization selects its candidates.
Now I think it's fair though for taxpayers to say, "Well, why should we pay for your nominating processes then? Why don't you guys pay for your nominating processes?" There are questions about that, but there is that alternative take that these are private organizations that deserve to have their own mechanisms for selecting their own candidates.
When they say party bosses, let's be very clear that being chairman of the Republican Party these days is one of the worst jobs you could probably have because trying to wrangle everybody together. It's not like they're dictating who the candidates are. I think it is a voting reform that a lot of other states have probably taken. And I think that the advocates of that have made a pretty compelling case.
Lori Walsh:
Three states.
Jonathan Ellis:
South Dakota is an outlier in some sense of how we actually conduct primaries.
Lori Walsh:
I'm not sure. Is that true?
Tom Dempster:
That is true.
Lori Walsh:
Three states: California, Nebraska and Washington used top three. Alaska uses a top four.
Jonathan Ellis:
There are other types of ballot reforms though, that have taken place.
Lori Walsh:
Tom, say more about that since you probably know more about than me.
Tom Dempster:
Sure. Virtually all the states that surround South Dakota have a more open process than South Dakota does. We are the only state that restricts 150,000 people from the ballot. It just doesn't make sense. If I were an Independent and if I paid taxes, I would not be very happy my incapacity to vote in a public election process.
Jonathan Ellis:
Yeah. Or you could just register with a party.
Tom Dempster:
Oh, sure.
Jonathan Ellis:
That's not hard.
Tom Dempster:
That isn't hard.
Lori Walsh:
And participate.
Tom Dempster:
And participate. So that means in order for me to vote in an election, what, I have to become something that I'm not?
Lori Walsh:
We got time for one more in the last minute.
Jonathan Ellis:
I'm an Independent, by the way, so I don't get to vote.
Lori Walsh:
Jonathan and I, we're both Independents.
Tom Dempster:
Well, you probably have to be.
Lori Walsh:
I've seen some skinny ballots in my day. I'll tell you that one. That is not say how I'm going to vote on your ballot question. I'm not revealing that, but I am telling you that I have seen some skinny ballots as a South Dakota Independent.
Tom Dempster:
Well, you just get to walk in the booth and walk out, nothing to it, make a couple checks and then you're done.
Lori Walsh:
I still go. I still go. I get my sticker. I fill in my one bubble.
Tom Dempster:
Can we talk about sales tax?
Lori Walsh:
Yes, we better do that, but we really have a minute or so. So hit the high points of sales tax.
Tom Dempster:
This is one of the reasons why people don't like initiated measures. Because when you've got a legislative process, you've got all the lobbyists, all the people who are interested in the bill that pound you at a legislative hearing. And through that pounding process, bills get defeated, bills pass. But through that pounding process, a bill starts as soft as clay, and by the time it's done, it really hardens into concrete something that actually makes sense.
This bill, in my opinion, does not make sense. It's pure chaos.
Lori Walsh:
Gov. Kristi Noem wanted to repeal the food tax. Jonathan does that play into the campaigning between now and then? The fact that she originally wanted this did not get it, lawmakers voted on a different tax reduction. To Tom's point, there are parts of this bill that people are criticizing how it would actually show up in our lives and what it would do to the funding of state government altogether. Does she play a factor in this going forward or is she done with it?
Jonathan Ellis:
I feel like she's probably done with this because it's not a repeal of sales tax on food. It's broader than that. And I would just say that Mike Rounds in 2004 was sort of the leader in defeating that measure then and it lost by 68%. So if there's not a strong figurehead like that, maybe it's a different outcome this year. But I would think that this repeal effort has its work cut out for it.
Lori Walsh:
Yeah. I still remember Dennis Daugaard when he was governor in an interview pounding the table in front of me and saying, "Most people can perfectly afford to pay the tax on food."
Tom Dempster:
Of leaving a $123 million hole in the state budget from now until forever more may be putting in jeopardy the $44 million of tobacco tax and, what is it, another $12 million of tobacco tax settlement?
Oh, by the way, if this bill passes, how about cities and municipalities?
Lori Walsh:
Well, they can still do their thing.
Tom Dempster:
Oh, really? Says who?
Lori Walsh:
Do I have to file through my pieces of paper again to find that.
Jonathan Ellis:
This is again, the process of not, it didn't get played out in committee hearings and so there are some legal issues.
Lori Walsh:
There are some questions. There are some questions.
Tom Dempster:
This has not been pounded into cement.
Lori Walsh:
It's not been forged in your opinion.
Tom Dempster:
Well, that political process is a wonderful, tough process.
Lori Walsh:
In your analysis, this has not been forged yet.
Tom Dempster:
Thank you. In my perfect analysis, that has not been forged.
Lori Walsh:
I don't know if I said perfect analysis.
All right. That is what the Dakota Political Junkies do. Jonathan Ellis, The Dakota Scout. You can find that online or you can find the print product around the state.
Tom Dempster, former state lawmaker, welcome back.
We're going to have a good run to November. Lots to talk about.
Jonathan Ellis:
Thank you.
Tom Dempster:
Thank you.
