South Dakota Senate Republicans yesterday declared that neither young people's labor nor the popular will matter when they want to cut business a break. On a party-line 26–7 vote, the Senate yesterday passed Senate Bill 177 which would set the minimum wage for workers under 18 at $7.50, a buck less than the $8.50 South Dakota voters established as the minimum wage last November.

Prime sponsor Senator David Novstrup (R-3/Aberdeen, who speaks as if he is afraid of the microphone, or of his own bill) says he's just trying to give kids the opportunity to work. He asserts that business owners have told him the increased minimum wage is causing them not to hire young people, allowing them to pay kids less ensures they can still get jobs. When asked by Senator Billie Sutton (D-21/Burke) how many workers would be affected by this pay decrease, Senator Novstrup admitted he doesn't have numbers. "There's a lot of games you can play with statistics," said Novstrup... which statement is the hallmark of a debater who is losing an evidence-based debate.

In response to concerns that employers would lay off adult workers to exploit cheaper youth labor, Senator Novstrup pointed to the line in Section 2 of his bill that says, "No employer may take any action to displace an employee, including a partial displacement through a reduction in hours, wages, or employment benefits, in order to hire an employee at the wage authorized in this Act."

While Senator Novstrup digs through his briefcase looking for the enforcement mechanism for that clause, I ask this question: suppose you're starting a business. You need an entry-level worker. You get apps from a 17-year-old and a 19-year-old, both about equally qualified. Whom will you hire: the 19-year-old at $8.50 an hour, or the 17-year-old at $7.50 an hour? Nothing in SB 177 stops you from making the economic choice and getting the same labor less money, thanks to GOP age discrimination.

Senator Bernie Hunhoff (D-18/Yankton) said such age discrimination does not reflect South Dakota values. He said we should respect the dignity of work, regardless of the worker's age.

Senator Sutton added that we should also respect the will of the voters. South Dakotans voted to raise the minimum wage to $8.50 an hour last November, without qualification or exception. Senator Gary Cammack (R-29/Union Center) said SB 177 doesn't violate the people's will; it just adds a provision that should have been in the initiative in the first place. Senator Scott Parsley (D-8/Madison) challenged that wordplay: he said that if the minimum-wage initiative had been lacking something, the voters would have rejected it.

Senate Majority Leader Tim Rave (R-25/Baltic) then dismissed all talk of the voters' will. He said senators can't sit around respecting the sanctity of the initiative for a year, or two years, or five years, or whatever. Telling legislators they are elected to show "courage," he exhorted them to vote on SB 177 on its own merits, independent of the results of the November election. That's clever verbiage, but it's rhetorical cover for, "You darn Democrats, and you darn voters! We'll show you who's boss! Pass all the initiatives you want; we will by gum change them however we see fit!"

Senate Bill 177 now heads to the House, where high school pages, who work for free, can silently watch their Republican bosses further devalue their peers' labor.

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The South Dakota Family Coalition for Compassion failed to find a legislative champion for its proposal to legalize medical cannabis. Melissa Mentele of SDFCC says her group is fine tuning the bill they drafted to circulate as an initiated measure.

To make things interesting, SDFCC is also working up an initiated measure to decriminalize the possession of marijuana. Under a draft currently under consideration, pot smokers would still face a civil penalty of $100 for possession of an ounce or less, but the initiated measure would repeal all other state and local penalties for ounce-or-less possession. The measure would also prohibit penalties for testing positive for marijuana.

I wonder: will promoting these two cannabis initiatives at the same time help or hurt the prospects for passing one or both of them? Medical marijuana advocates have been working the media to promote their cause with adorable yet suffering children. But some of the advocates of medical marijuana want nothing to do with recreational marijuana. Supporters of recreational marijuana may not get excited about circulating petitions for a compromise measure that still subjects them to a $100 fine; they may prefer a complete repeal of what some advocates call prohibition.

As for voters, perhaps putting medical and recreational marijuana on the same ballot will boost the medical measure by giving voters an opportunity to split their vote and pat themselves on the back for taking a middle road. Then again, a general decriminalization bill will provoke all the more vigorous opposition from law enforcement and anti-drug purists, and the volume of that opposition will likely spill over to deter some voters from casting a yes vote for any measure mentioning cannabis.

Cannabis backers can do that electoral calculus later. Right now, they need to get their drafts to the Legislative Research Council, then submit their final drafts to the Attorney General, then submit their materials to the Secretary of State. Then they can circulate their petitions and seek and submit 13,871 signatures by November 8 this year... and remember: Senator Corey Brown will call you stupid and challenge your petitions in court. He will lose, but you circulators will want to have a lawyer in the chute.

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There is another sign that House Bill 1216, the repeal of the property tax cap, will not pass: the Governor doesn't support it. He sent Mike Houdyshell from the Department of Revenue to offer the only opponent testimony in House Taxation yesterday.

Houdyshell defended the property tax cap as the product of voter demands expressed through a series of ballot initiatives. Houdyshell listed four initiated measures that he said represented a popular revolt against property tax increases, which averaged 6% a year from 1947 to 1995:

Year Measure Provisions Vote Yes Vote No
1980 Constitutional Amendment B (“Dakota Proposition”) set maximum property tax at 1% of full and true value 37% 63%
1988 Constitutional Amendment C (“Dakota Proposition 2”) set maximum property tax on ag land at 1%, non-ag land at 2.5%, based on 1984 values 39% 61%
1990 Constitutional Amendment E set maximum property tax increase at 2% per year 45% 55%
1994 Initiated Measure 1 set maximum property tax at 1% of assessed value; freeze assessments at January 1 1995 level; allow no increase in assessed value except in change of ownership or new construction; cap increases at 1.25% 49.45% 50.55%

As Houdyshell notes, momentum was building for limits on property tax. But none of these four initiatives passed. At no point up to 1995 did the voters express the will to impose the caps that Governor Janklow and the Legislature made law in 1995. Yet Houdyshell portrayed the statutes he came to defend against HB 1216 as an expression of the popular will with which twenty years later we should not tinker.

Wow. We Democrats have only asked for the Legislature to keep its hands off initiatives that actually pass for one year (and House State Affairs killed that proposal, HB 1175, 10–2 yesterday). The Governor's office tells the Legislature it should respect the apparent momentum of four initiatives that failed decades ago.

But hey, maybe the Legislature agrees that it should not cross the popular will. As Bob Mercer reports, the House has soundly rejected one GOP effort to change the minimum-wage initiative voters passed last November. One down, one to go....

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Senator Corey Brown wants to have a fight over initiative and referendum signature counts. Seeing that the people and press were outraged by his democracy-hating Senate Bill 166, the Senator from Gettysburg asked that his bill be tabled, but not before issuing a legal threat to future petitioners:

...as you saw by our agenda today, we have many bigger fish to fry and there are a lot of things that we have to discuss and maybe ultimately we just need to let the courts deal with this... [Senator Corey Brown, remarks on Senate Bill 166, Senate State Affairs Committee, 2015.02.06].

You want to go to court, Corey? Fine. As one non-licensed legal scholar to another, let's rumble.

In his remarks yesterday, Senator Brown claimed that, in setting the threshold for petition signatures needed to place initiatives and referenda on the ballot, South Dakota law has adopted a definition of "qualified electors" that is "kind of contrary to what the constitution indicates." Citing the 1994 Poppen v. Walker ruling that briefly overturned video lottery, Senator Brown contends that only the Supreme Court, not the Legislature, may define terms in the state constitution.

Let's look at the relevant texts:

South Dakota Constitution, Article 3, Section 1, clause setting petition signature requirements:

Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

SD Const., Article 7, Section 2, on voter qualifications:

Every United States citizen eighteen years of age or older who has met all residency and registration requirements shall be entitled to vote in all elections and upon all questions submitted to the voters of the state unless disqualified by law for mental incompetence or the conviction of a felony. The Legislature may by law establish reasonable requirements to insure the integrity of the vote.

Each elector who qualified to vote within a precinct shall be entitled to vote in that precinct until he establishes another voting residence. An elector shall never lose his residency for voting solely by reason of his absence from the state."

SDCL 2-1-5, establishing the practical basis for signature requirements:

The total number of votes cast for Governor at the last preceding gubernatorial election, shall for the purposes of this chapter, be the basis for determining the number of petitioners required.

Senator Brown's proposed replacement language in SB 166:

For purposes of this chapter, qualified electors shall mean the total registered voters eligible to cast a ballot for Governor in the preceding gubernatorial election as determined by the secretary of state.

Const. 3-1 says initiative and referendum petition signature requirements shall not be more than 5% of "qualified electors." Const. 7-2 defines qualified electors. SDCL 2-1-5 doesn't mention "qualified electors." It sets a perfectly constitutional threshold for available signatories that will always be less than or equal to the threshold set in Const. 3-1.

If Senator Brown thinks current law somehow legislatively co-opts the Supreme Court's authority to define constitutional terms, his own proposed language violates that standard more blatantly. His SB 166 says "qualified elector." Brown writes a new definition not found in the state constitution. Brown, a legislator, is defining a constitutional term, which Brown is telling us the Supreme Court says he cannot do. Brown's bill is thus unconstitutional.

Brown's bill further violates the constitutional signature threshold by math. Const. 3-1 refers to "Not more than five percent of the qualified electors of the state...." It does not say the number of qualified electors yesterday or three months ago or three years ago. Taken by itself, that provision means qualified electors in existence, right now. Senator Brown is trying to qualify that constitutional definition with an arbitrary and fixed date.

Consider that, by the Secretary of State's count, there were 519,361 registered voters ("qualified electors") available for the 2010 gubernatorial election. By July 1, 2012, around when our referendum petitions on Governor Dennis Daugaard's HB 1234 education reform were due, the number of registered voters had dropped to 512,799. Had SB 166 been in effect then, petitioneers would have had to collect 25,969 signatures, which would have been 329 more voters than 5% of the qualified electors in existence in South Dakota at that time.

That, Senator Brown, would have been a stone-cold violation of the state constitution. I'd have taken your bill to court, and you would have lost.

I look forward to circulating initiative petitions this spring and summer here in Aberdeen. I may volunteer to walk around Gettysburg to get all of Senator Brown's neighbors' signatures on the good legislation citizens will propose. And I relish the opportunity to see whatever court challenge Senator Brown is threatening us with go down in flames as democracy marches on over his stilted legal arguments.

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Senator Corey Brown (R-23/Gettysburg) does not lose gracefully. His Senate Bill 166 was a spiteful and crassly political ploy to weaken voters' right to legislate via initiative and referendum. The press blasted him, a variety of citizens and groups rose against SB 166, and numerous opponents trekked to Pierre yesterday to testify against this destructive bill yesterday.

A bigger man would have responded with a simple apology: I'm sorry. You're right. Senate Bill 166 is a bad idea. I withdraw the bill.

Senator Brown is a bigger something else. When Senate State Affairs finally reached SB 166, after opponents had waited through more than three hours of testimony and discussion in on other issues, Senator Brown took the mic, dismissed "the vast majority" of the opposition as thoughtless and impolite, and craftily tabled—not withdrew, but tabled—his bill before patient, thoughtful citizens had any chance to put their opposition on the record.

Senator Brown also misportrayed Senate Bill 166 as a sincere defense of the state constitution and continued his war against the initiative and referendum by threatening to take petitioners to court.

Here is Senator Brown's complete statement, for the record. All blockquotes are Brown's words, in my transcription. My translations, corrections, and commentary are inserted between blockquotes. This portion of the hearing begins at 3:12:36 on the SDPB audio.

You know, when we are elected, I think most of us take that very seriously and we come here to pierre with the idea that we're going to address problems and issues. Most of the colleagues that I've met here in the Legislature have a true interest in trying to find better ways forward or to take care of things that are deemed incorrect. We also take pretty seriously the oath to defend and support the constitution of the state [Senator Corey Brown, remarks on Senate Bill 166, Senate State Affairs Committee, 2015.02.06].

Translation: I'm awesome. I'm brave and noble. I would never propose a bill just to take away a democratic tool that citizens have used to challenge my party's political agenda and undo the things ALEC tells me to do. Never.

I realize that Senate Bill 166 has generated a lot of discussion.

Translation: I'm awesome for introducing such a thought-provoking bill.

Unfortunately I'd say the vast majority of that discussion has not been nearly as thoughtful as I would have hoped that it would have been.

Translation: People criticizing my awesome idea are clearly idiots.

Essentially we have an issue or at least I believe we do, and a lot of you have heard me speak to this, but I think South Dakota, as you know, was one of the first—it was the first state to allow for initiatied measures and referendums. And in the constitution, there was language that was put in there to talk about qualified electors, and that's what the petitions are supposed to be based off of. You can also turn to section... Article 7 in the constitution which talks about the definition of an elector. When you marry those two things up, I think we run into a third problem, and one of the pieces that really hasn't been discussed in this entire conversation has been the Supreme Court Case in 1994, which was Poppen v. Walker. Now that case didn't have anything to do with initiated measures or referendums. What it dealt with basically the gaming industry.

Poppen v. Walker found in 1994 that video lottery as then constituted was unconstitutional because the Legislature had created a gambling mechanism that did not conform to the court's constructed definition of the "lottery" authorized by popular vote in 1986.

Senator Brown commits supreme irony in turning for legal support to a case in which the Supreme Court ruled that the Legislature had violated a constitutional provision that had been approved by the people.

However, there was a major finding in that case that I think is critical to this discussion today. And I'll just read it to you. Basically the Supreme Court came back and said, "It is the duty of the Supreme Court not the Legislature to determine the meaning of constitutional terms."

Unfortunately, if you look at our state statute, the Legislature at one point adopted code very early in our statehood that tried to define what an elector was, and basically they said you needed to go back and take a look at the last election for Governor, and it will be based off a percentage of that.

Correction: the statute in question, SDCL 2-1-5, was enacted in 1939, fifty years after statehood, and amended in 1976. Neither date qualifies as "very early in our statehood."

The problem is we as a Legislature defined what those electors were, kind of contrary to what the constitution indicates.

Correction: The problem is that not one word of current statute is contrary to language in either of the constitutional provisions Senator Brown cites. Stay tuned: I'm working up a separate post dedicated to that topic.

As we go forward, and I should point out that... I don't know the exact reasoning for why that was put into place way back when, but I think, as it's been pointed out to me, when that was adopted, we were at a point in our state's history where when you registered to vote. you did it every two years. You had to come back in and re-register when the county would call that together, and unfortunately, I don't think the tracking mechanisms were very good.

Essentially, at that point in the state's history, the only way you could really go back and figure out how many people were there was you had to go back and look at the last election and see how many people voted for governor

So I think there was a practical reason to put that in there at one point, and obviously it's remained there for a long time.

However, I think society, technology have got ahead and caught us up to a point where we can go on the secretary of state's website and know how many registered voters there are today. And that's, those are the words that were put in the constitution.

Having said all of that, I'm quite surprised that a lot of folks are willing to not engage in an intellectual conversation.

More irony: A South Dakota Republican legislator complains that citizens are not sufficiently intellectual.

And there was something that occurred last night that made me realize that this has really become too big of a distraction for this Legislature to deal with. I had a call from the page advisor. Opponents are calling the Capitol using swear words and curse words at our high school pages. That is absolutely pathetic. I cannot believe that we would reach that level.

Big translation: Political discourse is over in South Dakota. If activists want to kill a bill, all they need to do is call the Capitol, get on the phone with a high school page, and say, "That bill sucks, dagnabit!"

I find such discourse unintellectual and immoral. But if we're being practical (and I want you to think about the moral compass of various special interest groups), what's cheaper:

  1. Running a candidate to unseat Corey Brown?
  2. Hiring a lobbyist?
  3. Mounting a petition drive to refer Senator Brown's bad laws? or,
  4. Cussing out a page?

Senator Brown is obviously blowing smoke. If I were a legislator, and if some frail blossom of youth on my page staff came weeping to me that some mean citizen had burned her ears with foul language over a bill I cared about, I'd console her, assure her we'd keep her safe, but I'd also take the teachable moment, "Dear girl, some people are nasty, and they will try to distract us from doing what's right. But this bill matters, and we aren't going to let the bullies win."

The shorter translation: Corey Brown has no spine, and he's teaching kids to cave to bullies.

And so in the interest of allowing this Legislature—as you saw by our agenda today, we have many bigger fish to fry and there are a lot of things that we have to discuss and maybe ultimately we just need to let the courts deal with this—I'm going to ask that the committee table this bill so we can move on to the other issues that we have before us.

Translation: With opponents gathered to roast this bill, let's put it on the table. I'm not withdrawing it, and once these people leave, maybe I'll bring it back. Or maybe I'll just sue anyone who dares bring an initiative or referendum this year. Who knows? I'm determined to undermine the initiative and referendum, and if I can't get this bill passed, I'm going to at least create as much uncertainty as I can for all those citizens who think they are better than I am at making laws.

At that point, after allowing Senator Brown his grandstanding and insults, without allowing any opponents to speak, Senate State Affairs did indeed table Senate Bill 166. If SB 166 stays dead, we will at least be spared a bad bill. But sore loser Senator Corey Brown remains unapologetically committed to insulting the people of South Dakota and their constitutional right to legislate.

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Senate Bill 166, Senator Corey Brown's spiteful and sinister attack on your right to legislate via initiative and referendum, hits Senate State Affairs tomorrow morning, Friday, at 9 a.m.

Friends and neighbors, now would be a good time to call the members of Senate State Affairs (who include Senator Brown) and tell them to kill this voter-hating bill. As I note in my latest essay for South Dakota Magazine, Senator Brown's bill says we don't trust voters to make good decisions at the polls and we must protect them from their own ignorance by reducing the number of issues they have to vote on. (I'm waiting for the nanny-state chorus here....)

Rick Weiland and Gordon Howie agree that SB 166 is a terrible idea that rejects South Dakota's grand tradition of putting faith in the voters:

“While the two of us have different views on public policy, during the campaign we also found common ground on several issues, one specifically being our belief that the will of our people is all too often ignored by our elected officials in both political parties”, Weiland said. “In our view, one of the clearest and best vehicles to ensure that citizens are heard is the initiative and referendum process–which, it’s worth noting, was started in South Dakota in 1898, and was such a good idea that it was copied by 23 other states”, Weiland added.

“Doubling the signature requirement for initiative and referendum petitions is a terrible idea, and we’re urging South Dakotans to forcefully let their state senators and representatives know that they oppose it. And what is particularly egregious is that the sponsors have tagged it with the 'emergency clause' which, if passed, would make it take effect immediately and, more importantly, mean that it can’t be referred to a vote of the people via a referendum petition”, Howie stated. “If the sponsors really believe that essentially doubling the signature requirement for initiatives and referendums is 'an emergency,' then we fear for their judgment, and what they would call an actual emergency”, Howie added. “In truth, the 'emergency' that these legislators fear is that South Dakota citizens, acting together, will substitute their judgment for that of our legislators. That is not an 'emergency,' its democracy as it’s been practiced in our state since 1898,” Howie said [Rick Weiland and Gordon Howie, joint press release, The Right Side, 2015.02.04].

The Senate State Affairs agenda is crowded tomorrow: they are also taking up Senate Bill 1, the ginormous road funding bill. SB 1 appears first on the agenda, which says the hearing will begin in Room 423 at the Capitol at 9 a.m., then move to Room 414 at 10:00 a.m. There's not telling at what exact time the committee will take up Brown's SB 166, so be there from the opening gavel and listen closely for your opportunity to testify to legislators what a really, really bad idea it is to make it harder to place initiatives and referenda on the ballot.

Update 15:46 CST: If you'd like to e-mail the members of Senate State Affairs, here are their addresses. E-mail them individually, and be sure to use a clear subject line, like "Vote No on SB 166."

If Senator Lederman replies with his bogus line that SB 166 simply brings petition law in line with the state constitution, invoke Bill Janklow. The ever-subtle Bob Mercer posts to his blog a 1975 official opinion from then-Attorney General Janklow, who explained that the Legislature had adopted the current petition signature threshold (5% of votes cast in the last gubernatorial election) in response to the fact that maximum constitutional threshold (5% of "qualified electors," which SB 166 would restore) is too vague and difficult to calculate. No one knows how many qualified electors there are in South Dakota at any given moment. SB 166 would pin petition signatures to someone's wild guess; current law derives signature count from a firm, documented number.

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Get ready for an initiated measure to banish Standard Time and put South Dakota on Daylight Savings Time year-round! In his testimony on House Bill 1127 yesterday, Rep. Dan Kaiser (R-3/Aberdeen) told House State Affairs that he brought HB 1127 on behalf of a District 3 constituent who claims to have the network in place to bring an initiated measure on Daylight Savings Time to a public vote. Rep. Kaiser said his constituent claims that his proposal has lots of support around Aberdeen.

For his part, Rep. Kaiser told the committee that locking in Daylight Savings Time would keep that extra hour of daylight in the winter, giving us all more time after school and work to (these are Rep. Kaiser's examples) make snowmen and snow angels and hunt for pheasants. He also cited, without attribution, statistics that he said a "gentleman" provided him (meaning the stats were at least polite, if not proven) that making Daylight Savings Time permanent would save an individual 41 cents a day or $149 a year (which makes no sense, because the change proposed by HB 1127 would only affect 125 days, meaning an increase in annual savings of just $51.25... but we'll save that math for when we see the petitions).

Committee chairman Rep. Brian Gosch (R-32/Rapid City) did catch the language mix-up that I noted in my coverage of HB 1127 last week. Rep. Gosch recommended and the committee approved an amendment to clarify the intent to keep "summer hours" year round. But Rep. Gosch also rained on the time-change parade by pointing to the federal law (Title 15, Section 260a) that says states can opt out of Daylight Savings Time but can't opt into it year-round. Rep. Kaiser gently raised his libertarian hackles and asked rhetorically, "[I]s it the states that make the federal government or the other way around?"

House State Affairs chose not to tease that bear and killed HB 1127 yesterday. The Summer Hours Forever/I-♥-DST initiative drive should thus be launching any day now. I'll be watching for the petition at the crackerbarrels and the Brown County Fair.

Related Reading: Utah legislators killed a similar Daylight Savings Time proposal yesterday. One legislator said that the U.S. tried year-round summer hours in 1974, only to see more kids get killed in early-morning accidents on the way to school. Be ready to shout "Baby-killers!" at the Brown County DST petitioners.

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Gee, I just thought Senator Corey Brown's Senate Bill 166, his proposal to raise by 88% the signatures necessary to get an initiative or a referendum on the ballot, was just another cynical Republican ploy to defang democracy and insulate their bad policymaking from popular revolt. Jonathan Ellis, who appears to share Senator Brown's contempt for the masses, calls SB 166 an "incredibly bad idea" that can kill Senator Brown's aspirations to power:

...[T]he Brown Bill is a political loser. Which is surprising, given that its main sponsor, Corey Brown, was thought to have statewide political ambitions. He can probably kiss those goodbye. Sure, he's a smart guy. A retired Navy pilot. But now he's going to be known as a guy who dislikes democracy. Which, with a little political twisting, can be turned into being an America hater. And you don't get elected to office being an America hater unless you're running in Iran, North Korea or Berkeley, Calif.

It's also a political loser because it's most likely going to lose. There are, no doubt, business interests behind the scenes who are whispering their support to lawmakers. But as people learn about the Brown Bill, legions of them are lining up in opposition. The outrage over the Brown Bill, and it is outrage, is being voiced across the political spectrum [Jonathan Ellis, "Bill to Curb Ballot Measures Sparks Outrage," that Sioux Falls paper, 2015.02.02].

Senator Brown, it's time to hit the Withdraw button. Your own Senate State Affairs committee hasn't placed SB 166 on its agenda yet; pull the bill now, and spare yourself the embarrassment of the 41st day... and more mean columns from that darned liberal media.

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