Opinion: South Dakota’s first-in-the-nation embarrassment

David Ganje

by David Ganje
Ganje Law Offices

It is alarming that this South Dakota legislative session will entertain stand-down orders against democracy. Because the legislature is functioning as a Roman censor controlling the conduct and morals of state residents, South Dakota is at risk of losing its unique historical heritage as the nation’s originator of the initiative and referendum.

This legislative session will see several bills which will put in place an increase in the number of signatures and similar impediments to getting a matter on the ballot. The anticipated efforts by the lawmakers will not amputate ballot measures, but will by deliberate bits and pieces make it more difficult to put a measure on the ballot.

Citizens of the state have had a long tradition of supporting initiatives and referenda. Today’s legislators however do not want the principle of citizen democracy to get in the way of their preferred method of governing.

The acts of the legislature are not pure and noble. This is the age old struggle of man. Those with access to power, lawmakers, are loath to share it. It is an unmerited compliment to say that legislators’ bill-drafting motives are meant to offer better access to ballot measures.

Log rolling and trading of votes does not occur in a ballot measure vote. Initiatives and referenda are important, albeit imperfect, forms of self-determination.

One state legislator’s argument for more restrictive access to ballot measures is that some measures are too complicated for the citizenry to handle. Because a ballot question may be complicated does not justify further restrictions on the right to vote on measures. The ‘too complicated’ argument has been used in our history to restrict the right to vote of women, non-whites and others. How do part-time South Dakota legislators claim that they are ‘more informed’ than the electorate?

A scholar of government has said, “Elected lawmakers are often not well-versed in the details of much legislation, particularly when they must vote on large numbers of bills in order to meet an impending deadline.” The jury system assumes that citizens can decide issues of a very serious nature sometimes involving life and death, but state legislators don’t want to trust those very citizens with ballot issues.

This legislative session may be the one in which the long-held state tradition of the people, and not politicians, writing laws is severely diminished. South Dakota, in 1898, was the first state to adopt initiative and referendum by its citizens. Walter E. Kidd and Rev. Robert W. Haire of Brown County were the progenitors of this first-in-the-nation law.

Although imperfect, citizen measures are a form of direct democracy and offer a check on legislative action and inaction. I do agree that money interests play a significant role in ballot measures. Initiative and referenda laws of the state, like any established law, are always a proper subject for review and revision. All aspects of the election system should be open and accountable. Reforming old law is always fair game, but that is not the motivation behind these ballot-restriction bills.

Legislators’ efforts are better spent advancing more transparent financial disclosure rules which would publically and fully disclose interest groups supporting or opposing ballot measures, rather than subverting voter access to ballot measures.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.