Call Senator Brown now, and ask him why he fears democracy.

Call Senator Brown now, and ask him why he fears democracy.

Senator Corey Brown (R-23/Gettysburg) has perverted Senate Bill 69, the cornerstone of the petition reform package, into an effort to make it harder for Independents to get on the ballot. Not satisfied with that damage, Senator Brown now files Senate Bill 166, which continues the Republican war on the people's power of initiative and referendum.

Current statute (SDCL 2-1-5) uses the total number of votes cast in the last gubernatorial election to determine how many signatures are necessary to place an initiated measure or referred law on the ballot. Per SDCL 2-1-1, initiated laws and referenda require signatures of 5% of those gubernatorial voters. Given the turnout of 277,403 voters in the 2014 gubernatorial election, petitions for initiatives and referenda in the next two cycles will require 13,871 signatures to make the ballot.

Because initiatives and referenda tend to go badly for his party, Republican Senator Brown wants to repeal SDCL 2-1-5 and replace the signature count not on the number of people who actually voted in the last gubernatorial election but on the number who could have voted. Assuming he means registered voters on November 3, 2014, that's 521,041. SB 166 would thus nearly double the number of signatures needed to get measures on the ballot, to 26,053.

And because he knows folks are already planning initiatives that he doesn't like, Senator Brown includes an emergency clause in SB 166 to make sure no one could file an initiative before July 1 under the current, less onerous signature requirement.

South Dakotans, Senator Brown does not trust you. He wants to take away your constitutionally guaranteed power to make your own laws. Don't let him do that. Write or call Senator Brown and ask him how Senate Bill 166 serves the public interest.

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Senator Phil Jensen (R-33/Rapid City) has brought us Senate Bill 164, to require every student to pass a civics test before graduating high school. This bill continues our Legislature's dogged refusal to address the fundamental problem facing South Dakota's K-12 schools: the chronic underfunding of state aid to education that is driving the teacher shortage. SB 164 continues Republicans' habit of ignoring local control in education whenever a state mandate serves their craving for political posturing. Most importantly, Senate Bill 164 shows that Senator Jensen and his numerous co-sponsors flunk Bill-Writing 101.

Section 1 of Senate Bill 164 enacts the civics test mandate. Let me enumerate the sentences so we can better identify Senator Jensen's errors and omissions:

  1. Each student, before the completion of twelfth grade, shall demonstrate knowledge and understanding of the fundamentals of the history, principles, and form of the United States government.
  2. The students, as a condition to receive a high school diploma, or a diploma's equivalent, must take a civics test about history and government.
  3. The test consists of one hundred questions used by the United States Citizenship and Immigration Services to test an applicant to be a naturalized citizen of the United States.
  4. The student must correctly answer at least seventy percent of the questions on the civics test.
  5. A student may take the test at any time after enrolling in the seventh grade and may repeat the test as often as necessary to pass it.
  6. The requirement to pass this civics test applies to each student who is enrolled in a public school, enrolled in a nonpublic school, receiving alternative instruction pursuant to § 13-27-3, or pursuing a general educational development (GED) certificate.

Sentence 1 clutters the law books with redundant fluff.  It is lawmakers making a speech before getting to the real specifics of the law.

Sentence 2 gets to work, conditioning receipt of a high school diploma on taking a civics test. Note that it fouls the language of Sentence 1, which says one must "demonstrate knowledge" of civics "before the completion of twelfth grade." A student could finish twelfth grade by passing every senior year class but still not have passed the civics test requirement and thus still not have received the diploma. Sentence 1 could be read to say that students don't get to take the test after the end of senior year; if they haven't passed the test by then, they don't get to try again and don't get the diploma.

Sentence 3 assigns students to take the 100-question test USCIS officials give to immigrants seeking to become citizens. But unlike the widely available online versions offered for fun and edification, the real test is an oral quiz in which a USCIS officer asks the applicant up to 10 of the 100 questions. It's not multiple choice. I suspect SB 164's sponsors will make speeches justifying the civics test requirement as simply requiring our students to demonstrate the same knowledge as immigrants aspiring to citizenship. However, Sentence 3 fails to specify whether we would indeed replicate that immigrant testing experience, whether we want to make it harder by asking all 100 questions, or whether we want to make it easier with multiple-choice hints on a written bubble test.

Sentence 4 clearly diverges from the naturalization test, which requires applicants to get at least six out of ten right. I prefer the 70% passing rate myself, but why diverge from the USCIS requirement? For that matter, if civics is important enough to merit a state-mandated test, why not go higher? Why not require 100%?

Sentence 5 offers some fun, allowing kids to take the test any time in junior high (anyone still call it that?) or high school. Notice it says "any time." Technically, that means every teacher must have a civics checklist on her tablet at every moment. If a lecture is getting dull or if the teacher is about to give an onerous homework assignment, the clever student can shout, "I'm ready for my civics test!" and boom!—SB 164 requires the teacher to stop the lesson cold and administer the civics test to that student. The student can fail the test with no consequences and pull the same civics-test alarm the next day, and the next, whenever it seems the class needs a break. Such disruption is not the intent of the bill, but the absolute language of Sentence 5 does not provide schools with the statutory authority to impose limits on when students can take the test. (As a teacher, I understand how a classroom and a school day works. I think of these things. As a legislator, Senator Jensen does not think through these things.)

Sentence 6 is fine, applying the requirement to every student, including homeschoolers, how will now enjoy another Republican-sponsored state mandate in their homes.

I actually like the concept of universal administration of the civics test. I bet our senior government teachers are already drilling students on the content of the naturalization test and much harder questions. If I were teaching social studies, I'd have all sorts of fun administering this civics test (and yes, even though it would take more time, I would do it as an oral exam, because that is one of the surest, most cheat-resistant to see what a kid knows).

But there is the deepest flaw of this bill. Senator Jensen and his fellow legislators come wading into my classroom, acting as if they are the experts on education, as if they've come up with a brilliant idea that we professional teachers haven't already tried and modified. They just don't trust us teachers to do the job we've been trained to do.

Senate Bill 164 has good intentions, but it's poorly written and unnecessary. Let's hoghouse it and require legislators to take the civics test before they can take their oath of office. And let's require any legislator to spend a week substitute-teaching before they file any bills trying to tell teachers how to do their jobs.


It would be fun to have Rep. Dan Kaiser as my Representative. His seven bills provide all sorts of fun blog discussion!

Worth mentioning is Rep. Kaiser's House Bill 1127, which would exempt South Dakota from Daylight Savings Time. Alas, the wording appears a bit confused as to just where it wants to lock in the clocks:

Notwithstanding any other provision of law to the contrary by the United States relating to the adoption of daylight savings time by all of the states, the state of South Dakota elects to reject daylight savings time and elects to continue use in force standard time, or summer hours [House Bill 1127, original text, posted 2015.01.27].

Correct me if I'm reading something wrong here, but Daylight Savings Time is the clock we use in the summer (and the first half of fall, the last couple weeks of winter, and all of spring). Standard Time is what we're doing right now. If South Dakota rejects Daylight Savings Time, it rejects "summer hours." The language of this bill contradicts itself.

If the intent of this bill is to reject Daylight Savings Time and keep "winter hours," we face an interesting timing question. We switch to Daylight Savings Time this year on March 8. With no emergency clause appended, HB 1127 would take effect on July 1, which is a Wednesday. HB 1127 would thus have us set our clocks back across South Dakota in the middle of a workweek, which I'm sure would wreak all sorts of mirthful chaos at the office. With everyone's work and sleep schedule mixed up, we should just call a five-day weekend for the Fourth of July and let everyone get rested. (Oh! Bonus to HB 1127: fireworks displays could start an hour earlier for the kids!)

I have mixed feelings on Daylight Savings Time. I love the later sunsets it brings us. Sunshine past nine p.m. East River fills me with bliss. But I appreciate rolling out of bed and blogging by the glorious dawn light of Standard Time instead of the delayed sunrises of Daylight Savings. We just can't have it all....

Of course, if we really want to get fundamentalist about time, maybe we should amend HB 1127 to adopt Mountain Time statewide. The brief confusion caused by switching our clocks back or forth an hour twice a year is nothing compared to the daily confusion for folks doing business statewide keeping straight Central and Mountain Time. Time zones should center around meridians so that solar noon (the time when the sun is highest in the sky) as 12:00 p.m. In Madison, high noon comes around 12:45 p.m. Standard Time and 1:45 p.m. Daylight Savings Time. In Pierre, high noon comes at 12:54 p.m. Standard; in summertime, solar noon is almost tea time. If we unify South Dakota under Mountain Time, noon will be closer to noon, and we will bring East River and West River together, two clocks, finally ticking as one.

When do you prefer your sun? Should we keep fiddling with our clocks? I'm eager for the discussion of Daylight Savings Time here and in House State Affairs.


You know, for being a conservative verging on Libertarian, Rep. Dan Kaiser (R-3/Aberdeen) sure likes proposing laws. He's prime sponsor of seven bills in the hopper so far (and he has until Tuesday to come up with more!). But sometimes you've got to pass laws to protect liberty.

One of Rep. Kaiser's bills, House Bill 1134, rights a wrong discussed on this blog and highlighted by the South Dakota Supreme Court last fall. HB 1134 would remove the clause under which Beadle County state's attorney Michael Moore and Attorney General Marty Jackley were able to punish attorney Brandon Taliaferro (pronounced /TOL - li - ver/) for challenging abuses of Native American children in the foster care system. The state presented no evidence that Taliaferro had committed any of the crimes for which it arrested him, but one niggling statute allowed prosecutor Moore to block Taliaferro's request to expunge the arrest record and allow him to practice law and go about his business without further impact from the bogus charges Moore brought. The South Dakota Supreme Court recognized Moore's action unjustly harmed Taliaferro but said the law is the law and dismissed Taliaferro's effort to win expungement.

Rep. Kaiser now seeks to erase prosecutors' authority to block expungement of arrests. As Bob Mercer points out, Rep. Kaiser has the backing of some legal heavy-hitters:

Kaiser is a policeman and his record in the Legislature has tended to be one of protecting people’s personal liberties. His co-sponsors include two retired circuit judges, Rep. Timothy Johns, R-Lead, and Sen. Arthur Rusch, R-Vermillion, and two private attorneys, Rep. Lee Schoenbeck, R-Watertown, and Rep. Steven Haugaard, R-Sioux Falls [Bob Mercer, "Supreme Court: 'We Recognize This Is a Harsh Result'," Pure Pierre Politics, 2015.01.29].

As always, Mercer chooses his words carefully, but he appears to agree that the state treated Taliaferro poorly and that those poor treaters deserve some scrutiny:

The bill was assigned to the House Judiciary Committee; a hearing hasn’t been scheduled yet. The Tailaferro indictment looked, from the outside, to have been a strange chapter in law enforcement in South Dakota. Now the matter and the actions of the various sides will receive further light, to a degree they previously hadn’t, before the Legislature [Mercer, 2015.01.29].

HB 1134 won't restore Taliaferro, but it will protect innocent citizens like him from future abuses of prosecutorial power. Stay tuned for the House Judiciary hearing: we'll see if Attorney General Marty Jackley can defend this prosecutorial veto power over the expungement of their own erroneous persecutions before the Legislature the way he did before the Supreme Court.


The accusation that racist thugs in a VIP box threw insults and beer at kids from the American Horse School at a Rapid City Rush hockey game Saturday appears all the more substantive and serious. The Rapid City Police Department is gearing up to throw the book at the alleged malefactors:

Rapid City Police Chief Karl Jegeris said his officers know the identity of at least one person whose conduct was "scorching of your soul" when he insulted and threw beer on a group of Native American students at the Rush hockey game last Saturday at the Rushmore Plaza Civic Center.

Police Chief Karl Jegeris made the announcement at a press conference that followed a 2 1/2-hour closed-door meeting that included parents of the children, American Horse School officials, Oglala Sioux Tribal representatives, Mayor Sam Kooiker, police and the Pennington County State's Attorney's office.

"We're going to be looking at assault. We're going to look at the hate crimes statutes. We will look at the child abuse statutes. And, we will look at any other relevant statutes," Jergeris said of charges that may be filed against the person or people who participated in the harassment of the students [Andrea J. Cook, "Jegeris: Police Have Identified One Person Suspected of Insulting Native American Students," Rapid City Journal, 2015.01.28].

Chief Jegeris caught some grief last month over what seemed to be an effort to hinder a Lakota protest downtown, but turned out to be seeking dialogue working in the best interest of the protestors and public safety. On this case of racist bullying of children, he seems to making clear that he will stand for equal treatment under the law for all residents and visitors.

And on top of racist piggery, who did these brutish hockey fans think they were to pick on children, who'd earned their trip to the big-town hockey game as a reward for their work at school? As Mato Standing High, attorney for four of the harassed children's parents says, this behavior should outrage all parents:

"They're your children, too. If you live in South Dakota, these are your children," he said. "It doesn't matter where they live. It doesn't matter what color their skin is. If they live in South Dakota, they are your children, too" [Cook, 2015.01.28].

Chief Jegeris appears to take that message to heart. Rapid City has some ugly bullies. It also appears to have a police chief who is prepared to shut those bullies down.


I guess it was too much to hope that the Legislature could do petition reform without making things worse. But no: propose a bill dealing with election law, and Republicans will get out their knives and do all they can to cut more people out of the political process.

After a week of delay, Senate State Affairs finally revisited Senate Bill 69, the primary petition reform bill proposed by the Board of Elections. Committee Republicans did not amend SB 69 the way the ACLU and ballot access expert Richard Winger testified necessary to protect the access to the ballots that the courts have said is new parties' constitutional right. The committee did not fix the legislation to avoid the court challenge the ACLU said South Dakota could face if it moves the new-party petition date to February.

Instead, Senator Corey Brown (R-23/Gettysburg), seconded by Senator Dan Lederman (R-16/Dakota Dunes), amended a whole different section of statute to change the requirements for Independent candidates to get on the ballot. Right now, Independents seeking statewide office must obtain signatures from a number of registered voters equal to 1% of the total votes cast for governor in the last general election. Based on the 2014 turnout of 277,403 voters, that's 2,775 signatures. Lawmakers amended SB 69 today to change the requirement to 1% of all registered Independents. That number shifts from month to month, but the latest number from the Secretary of State counts Indies at 103,856. That means Independent candidates for U.S. House, U.S. Senate, and PUC in 2016 will need to gather just 1,039 signatures, 63% fewer than current statute requires.

Hold your huzzahs, Larry Pressler. Current law also allows Independents to get signatures from any registered voter, regardless of party affiliation, as long as that voter has not signed for another candidate. Right now, Indy candidates have 522,636 registered voters whose signatures they can pursue. Given a state population of about 850,000, an Independent petitioner's chances of picking an eligible petition signer out of a crowd at a Stampede or Rush game is about 61%. Under this amendment to SB 69, bolstered by a second amendment by Senator Ernie Otten (R-6/Tea), those odds drop to 12%.

Just how much harder does this amendment to SB 69 make it for Indies to get on the ballot? Let's imagine an ideal situation, the perfect candidate who can get every eligible voter to sign. To get all the necessary signatures, plus the smart 20% cushion to prevent error, an ideally appealing Indy petitioning under current law needs to approach (2,775 ✕ 120% ÷ 61% =) over 5,400 people. Using the same math, under SB 69 as amended, an ideal Indy would need to approach (1,039 ✕ 120% ÷ 12% =) over 10,200 people.

In other words, an Independent now has to work a crowd or a neighborhood 88% harder to get on the ballot.

Why do that, Republicans? Making it harder for Independents to run for office serves no public good. It serves only the dominant party's interest in nipping the power of a surging portion of the electorate in the bud.

Senator Brown further stunk up Senate Bill 69 by attacking the "placeholder" practice in which candidates with no intention of standing in the general election petition their way onto the ballot in the spring, then withdraw after the primary, allowing party chairs to pick replacements. The parties (Democrats more often than Republicans) avail themselves of placeholders when they can't recruit definite candidates by the end of March deadline and want to keep trying until August. Moving the petition deadline to the end of February cuts further into the time parties have to recruit candidates, making the placeholder tactic more valuable. Senator Brown, who said last week he finds the placeholder practice "abhorrent," amended SB 69 to forbid it. Under his amendment, the only ways candidates can withdraw will be if...

  1. they get nominated, elected, or appointed to another elective office that they can't hold simultaneously with the one they are running for;
  2. they move out of the district.
  3. they die; or
  4. they or immediate family members are diagnosed with an illness after filing and the candidate produces a note signed by two doctors describing the illness (that's got to violate medical privacy rules, not to mention common human decency).

I can barely get past the Ed-Rooney-to-George-Peterson crassness of condition #4 to fully calculate the electoral mischief. But I can pick my jaw up off the floor long enough to indict Senator Brown's placeholder amendment on two counts. First, Brown's amendment leaves no room for replacing a candidate who petitions seriously, then gets caught in a major scandal. That omission could bite any party.

More importantly for understanding what's really happening now with SB 69, consider that if Brown's amendment has any merit, it lies in the notion that letting party chairs pick candidates is undemocratic. If that's his point, I would agree, to an extent. But Brown's amendment still lets party chairs pick replacement candidates when "There is no other nominee for the office sought by the withdrawing candidate as of the time of the withdrawal." That clause says that in an uncontested election, the party chair gets to name not just a replacement candidate but the actual officeholder, which is even less democratic than the placeholder practice. Translation: Senator Brown isn't fighting for democracy. He's just fighting Democrats.

Senate Bill 69 and its companion bills SB 67 and SB 68 weren't perfect when introduced, but I was willing to support them, assuming we could make some changes that would protect the integrity of the petition process without suppressing citizen participation. Alas, today's Senate State Affairs Committee action shows the Republican majority would rather kick people out of the electoral process. Unless legislators can snuff out this malicious intent and return to serving the public interest with these bills, the petition reform package should be killed.


Senator Jeff Monroe (R-24/Pierre) doesn't care about my economic liberty, but he sure cares about my academic liberty. He's so worried that I won't have the freedom in my classroom to promote critical thinking, scientific inquiry, and respectful discussion of differences of opinion that he's proposed Senate Bill 114, "to encourage and protect the teaching of certain scientific information."

When Republicans like Jeff Monroe presume to tell teachers like me how to conduct respectful and intelligent debate, you know something fishy is going on.

SB 114 is really a sneaky retread of Senator Monroe's attempt last year to write intelligent design and other bushwah (yeah, bushwah, as in, not opinion, not scientific theory, but superstition and falsehood masquerading as real science) into k-12 curriculum across South Dakota.

To make sure there is no misundertanding, let's review the text of Senator Monroe's bill in full. SB 114 creates a completely new section under our education statutes in SDCL Chapter 13-1:

Section 1. That chapter 13-1 be amended by adding thereto a NEW SECTION to read as follows:

The South Dakota Board of Education, local school boards, and all school administrators shall:

  1. Endeavor to create an environment within all elementary and secondary schools that encourages students to explore scientific questions, learn about scientific evidence, develop critical thinking skills, and respond appropriately and respectfully to differences of opinion about scientific subjects taught in curriculum and coursework that is aligned to the content standards established pursuant to § 13-3-48; and
  2. Assist teachers to find effective ways to present the science curriculum as it addresses scientific subjects such as biological evolution, the chemical origins of life, global warming, human cloning, and other scientific subjects that may cause debate and disputation.

In addition, neither the Board of Education, nor any local school board, or school administrator may prohibit any teacher from helping students understand, analyze, critique, or review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the courses being taught that are aligned with the content standards established pursuant to § 13-3-48.

Section 2. The provisions of this Act only protect the teaching of scientific information and may not be construed to promote any religious or nonreligious doctrine, to promote discrimination for or against any particular set of religious beliefs or nonbeliefs, or to promote discrimination for or against any religion or nonreligion.

Section 3. By no later than the start of the 2015-2016 school year, the secretary of education shall notify all school administrators of the provisions of this Act, and the school administrators within each school district shall notify all teachers within that school district of the provisions of this Act [Senate Bill 114, original text, filed 2015.01.27].

Section 1 is absolutely unnecessary. The Board of Education, local school boards, and school administrators already provide teachers with tools and help to find the resources enumerated. We already have all the tools we need to tell Monroe's little minions why intelligent design is as imaginary as unicorns.

Section 2 is absolutely unnecessary. Scientific information is already made freely available in our K-12 curricula... except when conservatives like Senator Monroe try to block the teaching of honest information about birth control. Plus, we already have the First Amendment to prevent proselytizing in the classroom.

Section 3 is unnecessary grandstanding. Do we not assume that teachers are aware of all relevant statutes to their profession? Why should we read them just Jeff Monroe's pretty statute? Why not set aside a whole day of in-service before school starts to have Senator Monroe and legislators in every district come to their schools to recite chapter and verse the entirety of Title 13?

Senator Monroe proposes a hoghouse vehicle for an unnecessary intelligent design debate. Meanwhile, he ignores the fact that the low teacher pay his legislative negligence facilitates  is leaving us with fewer and fewer teachers who can explain science, fact, and logic to students. Maybe that's been his "intelligent design" all along.


Patrick Anderson features my moonshot plan to raise teacher pay $10,000, to 34th in the nation, on the education e-pages of that Sioux Falls paper. My plan secures that monumental raise, around $92 million a year spread among about 9,200 K-12 teachers, by lifting 16% of the $582 million in sales tax exemptions the state grants to favored goods and services.

Actually, let's update that: The Governor's proposed budget for FY2016 includes $735 million in sales and use tax exemptions and other tax expenditures. For our moonshot teacher teacher pay raises—which simply make our wages competitive, not over the moon—we need 12.5% of those exemptions, one out of eight dollars.

Anderson notes that a third of the sales tax exemptions are for ag products (e.g., cattle feed and bedding, tractor fuel, swine and bull semen) and asks if nixing those favors would unfairly burden farmers. (Ah, clever, corporate journalists, trying to split the Democrat farm-teacher alliance!) I don't have any particular 12.5% on the chopping block yet. I've certainly never suggested we should take all of the exemptions from the farm sector. To the extent that it is possible to levy a regressive tax fairly, we should spread the exemption cuts around to share the burden among those best able to bear them, to tap wealth where wealth lies. I suggested in our phone interview we might do better to cut the exemption for shoppers' guide ink and advertising... but somehow that suggestion didn't get past the editor's desk at that Sioux Falls paper.

I also told Anderson in our phone conversation that I recognize that ending our our national embarrassment as the state that values teachers least by raising a regressive tax is a suboptimal solution and that many teachers would likely vote against raising their pay by expanding a regressive tax. I'd be open to a wide array of superior funding mechanisms for competitive teacher pay—corporate income tax, re-appropriation of corporate welfare, pot of gold at end of rainbow. I'm just offering a plan within the realm of the politically possible.

It thus seems perfectly possible to sir down with smart people in government and industry and prioritize those exemptions. Which exemptions serve the greatest public purpose? Which cuts will fall on sectors best able to bear them? Make list, cut off the bottom eighth (eighth, I said, eighth!), and we have competitive teacher wages.

And with seven-eighths of the exemptions, $643 million dollars, still on the table, we'd have plenty of room left to consider lifting exemptions to reduce or eliminate the tax on food, the way Minnesota and other civilized states do... because after all, how fair is a tax system that taxes your bologna sandwich but not bull semen?


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