The South Dakota Legislature’s Latest Swipe at the Initiative Process

By Zebadiah Johnson and Matthew Schweich

In recent years, the South Dakota Legislature has unfortunately made a habit of passing legislation designed to curtail South Dakotans’ constitutional ballot initiative rights. At every legislative session in Pierre, we see legislators introducing bills intended to shift policy making power away from the people and towards themselves.

The South Dakota Constitution rightly positions the initiative process on equal footing with the legislative process, granting voters the ability to propose and enact laws without the approval of their elected officials. Furthermore, the U.S. Constitution guarantees freedom of speech. These constitutional bedrocks are the reason why so many anti-initiative bills have been thrown out in court (usually after South Dakota taxpayers have footed a hefty legal bill).

The 2024 legislative session has not strayed from this disappointing pattern, with a significant number of legislators neither learning from costly court defeats nor listening to their constituents' strong support for the initiative process. Instead, they remain steadfast in their determination to limit the power of voters. And yet, for many of these elected officials the primary motivation is not necessarily an ideological opposition to the initiative process, but a narrow focus on a specific 2024 ballot initiative: the proposed constitutional amendment that would re-establish abortion rights in South Dakota.

This is a repeat of 2022, when opposition to the proposed (and ultimately successful) Medicaid expansion ballot initiative was the principal reason behind the legislature’s shameful decision to place Amendment C on the June primary ballot (where, thankfully, it was rejected resoundingly by voters).

June 7, 2022 – a great day for South Dakota’s ballot initiative process

Right now, we at the VDA are focused on House Bill 1244, sponsored by Representative Jon Hansen. This legislation would establish a new process for withdrawing signatures from initiative petitions. There are many reasons why the VDA opposes this bill: it would allow for signature withdrawal after petitions have been validated by the South Dakota Secretary of State; it would permit non-notarized signature withdrawals sent by email; signature withdrawal would be granted an additional 30 days beyond what is allowed for signature collection; and only three other states (out of 26 with initiative processes) allow signature withdrawal and neither is as open-ended and ripe for abuse as HB 1244.

Hansen’s policy proposal most closely resembles Florida’s withdrawal process, which was enacted in 2007 but later ruled unconstitutional by the Florida Supreme Court less than four years after its passage (Kurt S. Browning, Etc., Et Al. v. Florida Hometown Democracy, Inc., PAC, Et Al.). 

Regarding signature withdrawal, the Florida Supreme Court had this to say:

“Politically charged counter-petition revocation campaigns…would essentially eviscerate and render meaningless the citizen-initiative process.”

In its current form, House Bill 1244 would open South Dakota to targeted “withdrawal campaigns” of the same type described in Florida. This phenomenon is characterized by large-scale political operations whose sole purpose is to prevent initiatives from reaching the ballot, as opposed to making a case to the voters regarding the public policy merits of the initiative at hand. 

The VDA has serious concerns about the potential negative impacts of HB 1244 on South Dakota’s initiative process, which is why we are strongly opposing this bill.

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