I would say Senator David Novstrup (R-3/Aberdeen) is pushing hard for the youth minimum wage, but that might exaggerate the forcefulness with which David Novstrup legislates. When David talks about Senate Bill 177, he sounds less like a man speaking from conviction and more like a boy told by his dad Al, "Son, here's a bill to keep our profits up at Thunder Road. Get everyone to vote for it, and I'll raise your allowance."

But neither David nor Al has to work too hard on this child labor law. They have Republicans itching to undo the annoying will of the people, and the youth minimum wage is the perfect angle from which to pee on our populist parade. Senator Novstrup gets to appeal to the disrespect for young people that is all too prevalent among business and legislative leaders. He offers his business pals a chance to save money. And he gets to stick it to people who can't vote or even circulate petitions (see SDCL 12-1-3(9)) to refer the youth minimum wage to a vote, if it becomes law.

But you know, Democrats, if we're looking for a way to engage young voters and soon-to-be voters, maybe we should use Senator Novstrup's attack on young workers' rights as our number-one organizing tool. If we can't stop the Republican supermajorities from passing SB 177, maybe we refer the youth minimum wage to a public vote. We get moms and dads to circulate petitions with their working teenage sons and daughters: Mom and Dad hold the clipboard and sign the oath, but the kids make their case for workplace equality. We promote Young Dems rallies across the state where industrious youth can talk about trying to raise money for college to keep themselves and their parents out of debt. We hand the kids flyers with pictures of fun-park operators Dave and Al and the rest of the Republicans and tell the kids to tell their friends, "If they have R's in front of their name, they voted to cut our paychecks 11%." And when November 2016 comes, we get them to bring all of their voting-age friends to the polls to vote against the youth minimum wage and against everyone who voted for it.

It would be preferable to save all that effort, mobilize a big youth turnout at the Legislature next week, and kill Senate Bill 177 now. But if SB 177 passes, we should refer it. That referendum would show Republicans that we voters really are the boss. A referendum on the youth minimum wage would also help teach young voters and future voters that politics is about vital pocketbook issues that demand their attention.

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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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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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While South Dakota Republicans chip away at the initiative and referendum, South Dakota Democrats are trying to protect the will of the people. Every Democrat in the South Dakota Legislature is backing House Bill 1175, a measure to insulate ballot measures from legislative tinkering. The bill text is brief:

If a measure is submitted to the voters of the state, legislation may not be proposed to affect the will of the voters for a period of one year after the vote on the measure, or the date of enactment, whichever is later.

Notice that HB 1175 would work both ways. If an initiated measure like our minimum-wage increase passed, legislators could not amend or repeal that popularly enacted law for one year. If a referendum succeeded and we repealed a law, legislators could not try to put that law back into effect for a year. Had HB 1175 been in effect in 2013, after we referred and repealed Governor Daugaard's really nasty and counterproductive education reform law in 2012, the Legislature would not have been able to propose bills to restore that law in full or in part; they would not have been able to resurrect the Critical Needs Teaching Scholarship, the sole productive component of that messy education reform package, until 2014.

On the other hand, if an initiative or referendum were to fail, HB 1175 would prevent legislators from revisiting those measures. If voters rejected an initiative to raise sales tax to increase funding for education and health care (as we did in 2012 on Initiated Measure 15), the next year's Legislature could not take up a bill to enact such an increase for such a purpose. I assume that legislators could take up a bill to increase the sales tax for other purposes, and they could take up a bill to increase funding for education and health care by different means.

A failed referendum vote—i.e., a vote in which voters chose to leave the challenged law in place—would lock that law in place in a way that simple legislative passage does not. Had Governor Daugaard's education reform withstood referendum in 2012, it would have become the voters' will, and HB 1175 would have protected it from any amendment in the 2013 session. Lawmakers could not have acted on a change of heart or fixed any gaps in that law until 2014.

I have argued that South Dakota Republicans are trying to weaken the initiative and referendum not for principle or public welfare but for pure political self-interest: they tend to lose initiatives and referenda, and they don't want the pesky electorate messing with GOP power and plans. My Republican readers could retort that Democrats are backing HB 1175 for the same selfish political reasons: South Dakota Democrats see initiatives and referenda as policymaking, organizing, and recruiting activities that serve their partisan interests.

But even if both sides are selfish bastards, the Democrats' defense of initiative and referendum versus the Republicans' attack thereupon demonstrates a fundamental difference in what the two parties think about Us the People. Republicans don't trust us. They cautiously let us vote for elected officials (even there, they throw up roadblocks), but they don't trust us to exercise legislative power directly. They want us, the unwashed and passion-addled mob, to trust those decisions to the elites, the elected officials in whose ears the corporate lobbyists drip their honey. They want a Republic.

Democrats do trust us. They want as many people as possible to vote not just for leaders, but for policies. They believe we the masses really can read, write, and pass good legislation. They recognize the fundamental unfairness in allowing legislators an almost immediate veto over our will while requiring us to undertake the lengthy and arduous process of gathering signatures and campaigning in a general election to challenge legislative action or inaction. Democrats say, "Let the people vote, and let their will stand." Democrats want a democracy.

House Bill 1175 poses some interesting legal questions about how the Legislature would go about fixing problems in initiated laws or laws that withstand referendum. But House Bill 1175 is the only good idea pertaining to initiative referendum to emerge yet from the 2015 Legislature. Turn up the heat on your phones and e-mails, and tell your legislators this is the one I&R bill they should support.

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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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The TIF campaign is on in Meade County. Meade County Taxpayers for Responsible Government gathered over 1,200 signatures (they needed 762) to refer the county's tax increment financing plan for a proposed bypass from the Buffalo Chip Campground to I-90 to a public vote on March 3. The referendum was fueled by a combination of opposition to the road itself and opposition to the funding mechanism, which grabs tax dollars that would otherwise be shared by the county and the school district.

A new website, www.Sturgis131.com, is up to promote a Yes vote in the March 3 referendum. The name comes from 131st Avenue, the name of the road before it was changed by a nicely participatory procedure to Fort Meade Way. The supporters don't say who they are, and they also don't make clear that the vote is about the TIF district designation, not about whether to build or pave Fort Meade Way.

The building and paving of Fort Meade Way does not depend on passage of the TIF. Meade County can still get the job done; it just might take longer through other funding mechanisms.

A bypass allowing quicker access to the Fort Meade VA, Sturgis Brown High School, and Bear Butte from Rapid City is a good idea for safety and economic development. A TIF district that deprives the school district of its fair share of benefits from new development is not. Meade County residents can support the road and still vote no on March 3.

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