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NOV. 3, 2017 - VOL. 54 No. 2

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Observations on initiatives/referendums

By Mark Lee
Sioux Falls Area Chamber of Commerce

The general election is scheduled each even-numbered year on the first Tuesday after the first Monday in November. When South Dakota voters go to the polls on Nov. 8, 2016, they will be faced with 10 ballot issues to consider as well as electing a president, U.S. senator, U.S. representative, state legislators and more. Your Chamber, through the Issues Management Council (IMC), is very busy researching each issue and preparing issue briefs. Our first goal is to provide our membership and leadership with a clear, concise and objective explanation of each issue.

When you go to the polls this November, here is what you will see: Five proposed constitutional amendments, one placed on the ballot by the 2015 Legislature and four placed on the ballot through the petition process; two referred laws: both are referred laws enacted by the 2015 Legislature; and three initiated laws through the petition process.

The IMC research and writing process includes draft issue briefs prepared by staff that are then reviewed and edited by select volunteers. During the summer, we will hear presentations on certain issues and conduct a membership survey. IMC may make recommendations to the Board on positions to take to guide our advocacy activities. As we begin the education process, a look at the initiative and referendum topic provides a better understanding of the use of the process in South Dakota as it compares to other states.

South Dakota Constitution

The right to initiate and refer laws is found in Article III, Section 1. The section also notes that the threshold for initiating and referring laws cannot exceed five percent of the "qualified electors of the state." The right to initiate a constitutional amendment is found in Article XXIII, Section 1. The section also notes that the threshold for initiating an amendment is 10 percent of the votes cast for governor in the last gubernatorial election.

To provide consistency in signature requirements, SDCL 2-1-5 notes that the total votes cast for governor shall determine the number of petitioners required. Thus, to initiate or refer a law requires five percent of the votes cast for governor and to initiate a constitutional amendment requires 10 percent.

Comparison to Other States

In South Dakota we take the initiative and referendum process for granted and well we should since we were the first state to include the initiative process within its constitution. So, if you have lived here all your life you may assume that initiative and referendum are simply part of the political process throughout the U.S.; however, that is not the case: 24 states do not have any provision for popular initiative or referendum for laws or constitutional amendments; 26 states provide some ability for popular initiative or referendum;14 states allow direct placement of initiated laws on the ballot (including SD); 23 states allow for the referral of a law (including SD); 16 states allow direct placement of a constitutional amendment on the ballot (including SD); and only 11 states mirror South Dakota´s access to the ballot with direct placement of initiated and referred laws plus initiated constitutional amendments.

In general, western states are much more likely than eastern states to include access to the ballot for issues through the initiative and referendum processes.

Initiative and Referendum Requirements of States
Contiguous to South Dakota

Access to the ballot and signature requirements varies from state-to-state. Rather than compare South Dakota to every state, it may be interesting to see what our neighbors do in this area: Iowa - Initiative and referendum are not permitted; Minnesota - Initiative and referendum are not permitted; Montana - Initiated Measure or Referred Law = 5 percent of those who voted in last gubernatorial election; Initiated Amendment = 10 percent of those who voted in last gubernatorial election; Nebraska - Initiated Measure = 7 percent of registered voters; Initiated Amendment = 10 percent of registered voters; Referred Law = 5 percent of registered voters (law goes into effect until the vote); Referred Law = 10 percent of registered voters (law is suspended until the vote); North Dakota - Initiated Measure or Referred Law = 2 percent of the total population, Initiated Amendment = 4 percent of the total population; and Wyoming – Initiated Measure or Referred Law = 15 percent of those who voted in last general election, plus two-thirds of the state´s counties must have signatures from at least 15 percent of their voters; Initiated Amendment = not permitted.

Conclusion

Clearly, there are vast differences amongst the states with respect to initiative and referendum. In addition to signature requirements, some states include a geographic distribution of signatures requirement. We do not have that in South Dakota. All-in-all, it is worth noting that South Dakota is one of the easiest states to get an issue on the ballot. First, we allow the process. Second, our signature requirement is quite low. Third, we have no geographic distribution of signatures requirement. This can make us an appealing target for groups that want to "test" a measure on the ballot.

Look for more information regarding each of the ballot issues for the coming election. We are happy to address your questions or make presentations to groups to educate voters on these important matters.


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